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HomeMy WebLinkAboutOrdinances (O-99-1171)-08/17/1999 ORDINANCE 0-99-1171 AN ORDINANCE TO ESTABLISH RULES AND REGULATIONS GOVERNING THE CONSTRUCTION AND USE OF CITY PUBLIC RIGHTS-OF-WAY, AND MAY BE KNOWN AS THE "CONSTRUCTION IN THE PUBLIC RIGHTS-OF-WAY ORDINANCE." WHEREAS, the City of Colleyville (the "City") seeks to facilitate an orderly use of the Public Rights-of-Way in a non-discriminatory and competitively neutral basis; and, WHEREAS, in accordance with applicable federal, including, but not limited to, 47 U.S.C. '253(c) and state laws, including, but not limited to, Tex. Util. Code '14.008; and '54,205, and Tex. Civ. Statutes, Art. 1175; the City seeks to exercise its historical rights to control and manage its Public Rights-of-Way in a competitively neutral and nondiscriminatory basis; and implement certain police power regulations in the use of those Public Rights-of-Way, in accordance with Local Gov. Code '283.056. NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS AS FOLLOWS: SECTION 1 - FINDINGS AND PURPOSE The purpose of this Ordinance is to: (A) Assist in the management of Facilities placed in, on or over the Public Rights-of-Way in order to minimize the congestion, inconvenience, visual impact and other adverse effects, and the costs to the citizens resulting from the placement of facilities within the Public Rights-of-Way; (B) Govern the use and occupancy of the Public Rights-of-Way; (C) Assist the City in its efforts to protect the public health, safety and welfare; (D) Conserve the limited physical capacity of the Public Rights-of-Way held in public trust by the City; (E) Preserve the physical integrity of the streets and highways; (F) Control the orderly flow of vehicles and pedestrians; (G) Keep track of the different entities using the Rights-of-Way to prevent interference between them; (H) Assist on scheduling common trenching and street cuts; and Ordinance 0-99-1171 Page 2 of 13 (I) Protect the safety, security, appearance, and condition of the Public Rights- of-Way. This Ordinance may be referred to as the "Construction in the Public Rights-of-Way Ordinance." SECTION 2 - AUTHORITY; SCOPE This Ordinance applies to all Persons that place Facilities in, on or over Public Rights-of-Way. SECTION 3 - DEFINITIONS In this Chapter: (1) Certificated Telecommunications Provider means the same as in Local Government Code Section 283.002(2) [any entity that has been granted a certificate from the Texas Public Utility Commission under Chapter 54 of Tex. Utility Code authorizing that entity to provide local exchange telephone service]. (2) City means The City of Colleyville, Texas. As used throughout, the term City also includes the designated agent of the City. (3) City Manager means the City Manager of the City or the City Manager's designee. (4) Direction of the City means all ordinances, laws, rules, resolutions, and regulations of the City that are not inconsistent with this Ordinance and that are now in force or may hereafter be passed and adopted. (5) Facilities means any and all of the wires, cables, fibers, duct spaces, manholes, poles, conduits, underground and overhead passageways and other equipment, structures, plant and appurtenances and all associated physical equipment placed in, on or under the Public Rights-of-Way. (6) Person means a natural Person (an individual), corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company or association, and other such entity. Ordinance 0-99-1171 Page 3 of 13 (7) Public Rights-af-Way means the same as in the Texas Local Government Code, I 283.002(6), [the area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the municipality has an interest. The term does not include the airwaves above a Public Right-of-Way with regard to wireless telecommunications.] SECTION 4 - MUNICIPAL AUTHORIZATION REQUIRED (A) Any Person seeking to place Facilities on, in or over the Public Rights-of- Way, shall first file an application for a construction permit with the City and shall abide by the terms and provisions of this Ordinance pertaining to use of the Public Rights-of-Way. (B) Any Person, except a Certificated Telecommunications Provider, prior to placing, reconstructing, or altering Facilities in, on or over the Public Rights- of-Way, must obtain separate municipal authorization from the City. (C) Any Person with a current, unexpired consent, franchise, agreement or other authorization from the City ("Grant") to use the Public Rights-of-Way that is in effect at the time this Ordinance takes effect shall continue to operate under and comply with that Grant until the Grant expires or until it is terminated by mutual agreement of the City and the Person, or terminated as otherwise provided for in law. (D) In order for the City to know which Persons own Facilities in the Public Rights-of-Way within the City, each Person who owns Facilities shall register with the City and provide the following information at a minimum: (I) the persons' name and (ii) the current name, address and telephone number(s) of a contact employed by and with decision-making authority for the Person and who is available twenty-four (24) hours per day. Each Person shall update and keep current his/her registration with the City at all times. SECTION 5 - ADMINISTRATION AND ENFORCEMENT (A) The City Manager shall administer and enforce compliance with this Ordinance. (B) A Person shall report information related to the use of the Public Rights-of- Way that the City Manager requires in the form and manner reasonably prescribed by the City Manager. Ordinance 0-99-1171 Page 4 of 13 (C) The City Manager shall report to the City Council upon the determination that a Person has failed to comply with this Chapter. SECTION 6 - CONSTRUCTION OBLIGATIONS (A) A Person is subject to reasonable police power regulation of the City to manage its Public Rights-of-Way in connection with the construction, expansion, reconstruction, maintenance or repair of Facilities in the Public Rights-of-Way, pursuant to the City's rights as a custodian of public property, based upon the City's historic rights under state and federal laws. Such regulations include, but are not limited to, the following: (1) At the City's request, a Person shall furnish the City accurate and complete information relating to the construction, reconstruction, removal, maintenance and repair of Facilities performed by the Person in the Public Rights-of-Way. (2) A Person may be required to place certain Facilities within the Public Rights-of-Way underground according to applicable City requirements absent a reasonable demonstration by the Person that, in any specific instance, this requirement is not reasonable or feasible nor is it equally applicable to other similar users of the Public Rights-of-Way. (3) A Person shall perform operations, excavations and other construction in the Public Rights-of-Way in accordance with all reasonable City requirements, including the obligation to use trench less technology whenever commercially economical and practical and consistent with Texas Department of Transportation specifications on other similar users of the Public Rights-of-Way. The City shall waive the requirement of trenchless technology if it determines that the field conditions warrant the waiver, based upon information provided to the City by the Person. All excavations and other construction in the Public Rights-of-Way shall be conducted so as to minimize interference with the use of public and private property. A Person shall follow all reasonable construction directions given by the City in order to minimize any such interference. (4) A Person must obtain a permit, as reasonably required by applicable City codes, prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the Person's Ordinance 0-99-1171 Page 5 of 13 Facilities. A construction permit is not required for routine maintenance that does not require excavation of the Public Rights-of- Way or which does not block traffic lanes or sidewalks during peak traffic periods between 7:00 a.m. to 9:00 a.m. and 4:30 p.m. to 6:30 p.m. on weekdays, or for more than two hours during any non-peak traffic period. Once a permit is issued, Person shall give to the City a minimum of forty-eight (48) hours notice (which could be at the time of the issuance of the permit) prior to undertaking any of the above listed activities on its Facilities in, on or under the Public Rights-of- Way. The failure of the Person to request and obtain a permit from the City prior to performing any of the above listed activities in, on or over any Public Right-of-Way, except in an emergency as provided for in Subsection (11) below, will subject the Person to a stop-work order from the City and enforcement action pursuant to the City's Code of Ordinances. If the Person fails to act upon any permit within 90 calendar days of issuance, the permit shall become invalid, and the Person will be required to obtain another permit. The City may, at its discretion, grant extensions of expired permits for good cause. (5) When a Person completes construction, expansion, reconstruction, removal, excavation or other work, the Person shall promptly restore the Public Rights-of-Way in accordance with reasonable and applicable City requirements. A Person shall replace and properly relay and repair the surface, base, irrigation system and landscape treatment of any Public Rights-of-Way that may be excavated or damaged by reason of the erection, construction, maintenance, or repair of the Person's Facilities within thirty (30) calendar days after completion of the work in accordance with existing standards of the City in effect at the time of the work, unless extended by the City for good cause. (6) Upon failure of a Person to perform any such repair or replacement work, and five (5) days after written notice has been given by the City to the Person, and in the event repairs have not been initiated during such five day period, the City may repair such portion of the Public Rights-of-Way as may have been disturbed by the Person, its contractors or agents. Upon receipt of an invoice from the City, the Person will reimburse the City for the costs so incurred within thirty (30) calendar days from the date of the City invoice. Ordinance 0-99-1171 Page 6 of 13 (7) Should the City reasonably determine, within one (1) year from the date of the completion of the repair work, that the surface, base, irrigation system or landscape treatment requires additional restoration work to meet existing standards of the City, a Person shall perform such additional restoration work to the satisfaction of the City, subject to all City remedies as provided herein. (8) Notwithstanding the foregoing, in subsection (7), if the City determines that the failure of a Person to properly repair or restore the Public Rights-of-Way constitutes a safety hazard to the public, the City may undertake emergency repairs and restoration efforts, after emergency notice has been provided, to the extent reasonable under the circumstances and the Person failed to respond within the reasonable time limit specified by the City. A Person shall promptly reimburse the City for all costs incurred by the City within thirty (30) calendar days from the date of the City invoice. (9) A Person shall furnish the City with construction plans and maps showing the location and proposed routing of new construction or reconstruction at least five (5) days before beginning construction or reconstruction that involves an alteration to the surface or subsurface of the Public Rights-of-Way, unless otherwise approved by the City. A Person may not begin construction until the location of new Facilities and proposed routing of the new construction or reconstruction and all required plans and drawings have been approved in writing by the City, which approval will not be unreasonably withheld, taking due consideration of the surrounding area and alternative locations for the Facilities and routing. (10) If the City Manager declares an emergency with regard to the health and safety of the citizens and requests by written notice the removal or abatement of Facilities, a Person shall remove or abate the Person's Facilities by the deadline provided in the City Manager's request. The Person and the City shall cooperate to the extent possible to assure continuity of service. If the Person, after notice, fails or refuses to act, the City may remove or abate the facility, at the sole cost and expense of the Person, without paying compensation to the Person and without the City incurring liability for damages. Ordinance 0-99-1171 Page 7 of 13 (11) Except in the case of customer service interruptions and imminent harm to property or Person (An Emergency Condition(s), a Person may not excavate the pavement of a street or Public Rights-of-Way without first complying with City requirements. The City Manager or designee shall be notified as promptly as possible regarding work performed under such Emergency Conditions, and the Person shall comply with the requirements of City standards for the restoration of the Public Rights-of-Way. (12) Within ninety (90) days of completion of each new permitted section of a Person's Facilities, the Person shall supply the City with a complete set of "as built" drawings for the segment in a format used in the ordinary course of business, but excluding customer specific, proprietary or confidential information and as reasonably prescribed by the City, and as allowed by law. The City may at its discretion, accept in lieu of "as-built" drawings, any reasonable alternative which provides adequate information as to the location of Facilities in the Public Rights-of-Way. (13) The City may require reasonable bonding requirements of a Person, as are required of other entities that place Facilities in the Public Rights-of-Way. (14) In determining whether any requirement under this Section is unreasonable or unfeasible, the City Manager or his/her designee shall consider, among other things, whether the requirement would subject the Person or Persons to an unreasonable increase in risk or service interruption, or to an unreasonable increase in liability for accidents, or to an unreasonable delay in construction or in availability of its services, or to any other unreasonable technical or economic burden. SECTION 7 - CONDITIONS OF PUBLIC RIGHTS-OF-WAY OCCUPANCY (A) In the exercise of governmental functions, the City has first priority over all other uses of the Public Rights-of-Way. The City reserves the right to lay sewer, gas, water, and other pipe lines or cables and conduits, and to do underground and overhead work, and attachments, restructuring or changes in aerial Facilities in, across, along, over or under a public street, alley or Ordinance 0-99-1171 Page 8 of 13 Public Rights-of-Way occupied by a Person, and to change the curb, sidewalks or the grade of streets. (B) The City shall assign the location in or over the Public Rights-of-Way among competing users of the Public Rights-of-Way with due consideration to the public health and safety considerations of each user type, and to the extent the City can demonstrate that there is limited space available for additional users, may limit new users, as allowed under state or federal law. (C) If the City authorizes abutting landowners to occupy space under the surface of any public street, alley, or Public Rights-of-Way, the grant to an abutting landowner shall be subject to the rights of the previously authorized user of the Public Rights-of-Way. If the City closes or abandons a Public Right-of-Way that contains a portion of a Person's Facilities, the City shall close or abandon such Public Right-of-Way subject to the rights of the Person. (D) If the City gives written notice, a Person shall, at its own expense, temporarily or permanently, remove, relocate, change or alter the position of Person's Facilities that are in the Public Rights-of-Way within 120 days, except in circumstances that require additional time as reasonably determined by the City based upon information provided by the Person. For projects expected to take longer than 120 days to remove, change or relocate, the City will confer with Person before determining the alterations to be required and the timing thereof. The City shall give notice whenever the City has determined that removal, relocation, change or alteration is reasonably necessary for the construction, operation, repair, maintenance or installation of a City or other governmental public improvement in the Public Rights-of-Way. This section shall not be construed to prevent a Person's recovery of the cost of relocation or removal from private third parties who initiate the request for relocation or removal, nor shall it be required if improvements are solely for beautification purposes without prior joint deliberation and agreement with Person. (E) If the Person fails to relocate Facilities in the time allowed by the City in this Section, the Person may be subject to liability to the City for such delay and as set forth in the City Codes or Ordinance, now or hereafter enacted. Ordinance 0-99-1171 Page 9 of 13 (F) Notwithstanding anything in this Subsection (D), the City Manager and a Person may agree in writing to different time frames than those provided above if circumstances reasonably warrant such a change. (G) A Person may trim trees in or over the Rights-of-Way for the safe and reliable operation, use and maintenance of its Facilities. All tree trimming shall be performed in accordance with guidelines established by the National Arborist Association and International Society of Arboriculture. Should the Person, its contractor or agent, fail to remove such trimmings within twenty-four (24) hours, the City may remove the trimmings or have them removed, and upon receipt of a bill from the City, the Person shall promptly reimburse the City for all costs incurred within thirty (30) working days. Person shall not be responsible for tree trimming or removal above the work required to maintain or restore utility service. (H) A Person shall temporarily remove, raise or lower its aerial Facilities to permit the moving of houses or other bulky structures, if the City gives written notice of no less than 48 hours. The expense of these temporary rearrangements shall be paid by the party or parties requesting and benefiting from the temporary rearrangements. Person may require prepayment or prior posting of a bond from the party requesting the temporary move. SECTION 8 - INSURANCE REQUIREMENTS. (A) A Person shall obtain and maintain insurance in the amounts reasonably prescribed by the City with an insurance company licensed to do business in the State of Texas acceptable to the City, A Person shall furnish the City with proof of insurance at the time of the request for construction permits. The City reserves the right to review the insurance requirements and to reasonably adjust insurance coverage and limits when the City Manager determines that changes in statutory law, court decisions, or the claims history of the industry or the Person require adjustment of the coverage. For purposes of this section, the City will accept certificates of self-insurance issued by the State of Texas or letters written by the Person in those instances where the State does not issue such letters, which provide the same coverage as required herein. However, for the City to accept such letters the Person must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the City, based on financial information requested by and Ordinance 0-99-1171 Page 10 of 13 furnished to the City. The City's current insurance requirements are described in Exhibit "A" attached hereto. (B) Person shall furnish, at no cost to the City, copies of certificates of insurance evidencing the coverage required by this Section to the City. The City may request the deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, unless the policy provisions are established by a law or regulation binding the City, the Person, or the underwriter. If the City requests a deletion, revision or modification, a Person shall exercise reasonable efforts to pay for and to accomplish the change. (C) An insurance certificate shall contain the following required provisions: (1) name the City of Colleyville and its officers, employees, board members and elected representatives as additional insureds for all applicable coverage; and (2) provide for 30 days notice to the City for cancellation, non-renewal, or material change; and (3) provide that notice of claims shall be provided to the City Manager by certified mail. (D) Person shall file and maintain proof of insurance with the City Manager. An insurance certificate obtained in compliance with this section is subject to City approval. The City may require the certificate to be changed to reflect changing liability limits. A Person shall immediately advise the City Attorney of actual or potential litigation that may develop and may affect an existing carrier's obligation to defend and indemnify. (E) An insurer has no right of recovery against the City. The required insurance policies shall protect the Person and the City. The insurance shall be primary coverage for losses covered by the policies. (F) The policy clause "Other Insurance" shall not apply to the City if the City is an insured under the policy. (G) The Person shall pay premiums and assessments. A company, which issues an insurance policy, has no recourse against the City for payment of a premium or assessment. Insurance policies obtained by a Person must provide that the issuing company waives all right of recovery by way of Ordinance 0-99-1171 Page 11 of 13 subrogation against the City in connection with damage covered by the policy. SECTION 9 - INDEMNITY. (A) Except as to Certificated Telecommunications Utilities, each Person placing Facilities in the Public Rights-of-Way shall agree to promptly defend, indemnify and hold the City harmless from and against all damages, costs, losses or expenses (i) for the repair, replacement, or restoration of City's property, equipment, materials, structures and Facilities which are damaged, destroyed or found to be defective as a result of the Person's acts or omissions, (ii) from and against any and all claims, demands, suits, causes of action, and judgments for (a) damage to or loss of the property of any Person (including, but not limited to the Person, its agents, officers, employees and subcontractors, City's agents, officers and employees, and third parties); and/or (b) death, bodily injury, illness, disease, loss of services, or loss of income or wages to any Person (including, but not limited to the agents, officers and employees of the Person, Person's subcontractors and City, and third parties), arising out of, incident to, concerning or resulting from the negligent or willful act or omissions of the Person, its agents, employees, and/or subcontractors, in the performance of activities pursuant to this Ordinance. (B) This indemnity provision shall not apply to any liability resulting from the negligence of the City, its officers, employees, agents, contractors, or subcontractors. (C) The provisions of this indemnity are solely for the benefit of the City and is not intended to create or grant any rights, contractual or otherwise, to any other Person or entity; SECTION 10 - SEVERABILITY. (A) The provisions of this ordinance are severable. However, in the event this Ordinance or any procedure provided in this Ordinance becomes unlawful, or is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unenforceable, void, illegal or otherwise inapplicable, in whole or in part, the remaining and lawful provisions shall be of full force and effect and the City shall promptly Ordinance 0-99-1171 Page 12 of 13 promulgate new or revised provisions in compliance with the authority's decision or enactment. SECTION 11 - GOVERNING LAW. (A) This Ordinance shall be construed in accordance with the City Code(s) in effect on the date of passage of this Ordinance to the extent that such Code(s) are not in conflict with or in violation of the Constitution and laws of the United States or the State of Texas, subject to the City's ongoing authority to adopt reasonable regulations to manage its Public Rights-of- Way, pursuant to Sections 6 and 7 or as otherwise provided by law. SECTION 12 - UNAUTHORIZED USE OF PUBLIC RIGHTS-OF-WAY. (A) The City may institute all appropriate legal action to prohibit any Person from knowingly using the Public Rights-of-Way unless the Person has complied with the terms of this Ordinance. SECTION 13 - EFFECTIVE DATE. (A) This Ordinance takes effect on the;;L.1 iday of JlJ.a n:J.... 2000. AND IT IS SO ORDERED. eading and public hearing being conducted on the ,Iqqq\.. ~rf day The second reading and public hearing being conducted on the / I'll day of fJ,';flLsl ,1!lqq TABLED BY CITY COUNC I L ON 8/17/ . APPROVED BY CITY COUNCIL ON 3/7/00. ~ST. : , 1 ( j flA<- / J ()MA4/ Jef;; Harris, TRMC, CMC City Secretary CITY OF COLLEYVILLE De::! ~ Mayor Ordinance 0-99-1171 Page 13 of 13 S TO FORM AND LEGALITY: Ross T. F ster City Attorney EXHIBIT "A" City of Colleyville Insurance Requirements I. Comprehensive General Liability This insurance shall be an occurrence type policy written in comprehensive form and shall protect the contractor and his subcontractors and the Additional Insureds against all claims arising from bodily injury, sickness, disease, or death of any person other than the contractor's employees or damage to property of the City of Colleyville or others arising out of the act or omission of the contractor or his subcontractors or their agents, employees, or subcontractors. This policy shall also include protection against claims insured by usual personal injury liability coverage, a (protective liability) endorsed to insure the contractual liability assumed by the contractor and his subcontractors under the article entitle indemnification and completed operations, products liability, contraturalliability, broad form property coverage, premises/operations, and independent contractors. Bodily Injury and Property Damage - $250,000 per person $500,000 per occurrence II. Comprehensive Automobile Liability This insurance shall be written in the comprehensive form and shall protect the contractor and his subcontractors and the additional insured against all claims for injuries to members of the public and damage to property of others arising from the use of motor vehicles, and shall cover operation on and off the site of all motor vehicles licensed for highway use, whether they are owned, non-owned or hired. The liability shall not be less than: Bodily Injury and Property Damage - $250,000 per person $500,000 per occurrence III. Worker's Compensation and Employer's Liability This insured shall protect the contractor and his subcontractors and the Additional Insureds against all claims under applicable state worker's compensation laws. The insured shall also be protected against claims for injury, disease or death of employees which, for any reason, may not fall within the provision of a workers' compensation law. This policy shall include an all-states endorsement. The liability shall not be less than: Worker's Compensation - Employers' Liability Disease policy limit Statutory $100,000 each accident; $500,000 $100,000 Disease - each employee