HomeMy WebLinkAboutOrdinance 2464
CONSTRUCTION IN THE PUBLIC RIGHTS-OF-WAY ORDINANCE
CONDITIONS FOR USE
TABLE OF CONTENTS
SECTION 1 - FINDINGS AND PURPOSE. .................................................................................... 1
SECTION 2 - AUTHORITY; SCOPE. .............................................................................................2
SECTION 3 - DEFINITIONS.......................................................................................................... 2
SECTION 4 - MUNICIPAL AUTHORIZATION REQUIRED. .........................................................3
SECTION 5 - ADMINISTRATION AND ENFORCEMENT. ...........................................................3
SECTION 6 - CONSTRUCTION OBLIGATIONS........................................................................... 4
SECTION 7 - CONDITIONS OF PUBLIC RIGHTS-OF-WAY OCCUPANCY. ...............................7
SECTION 8 - INSURANCE REQUIREMENTS. ............................................................................. 8
SECTION 9 - INDEMNITY. ............................................................................................................ 9
SECTION 10 - SEVERABILITy................................................................................................... 10
SECTION 11 - GOVERNING LAW..............................................................................................10
SECTION 12 - UNAUTHORIZED USE OF PUBLIC RIGHTS-OF-WAY. ...................................10
SECTION 13 - EFFECTIVE DATE. .............................................................................................. 11
CONSTRUCTION IN THE PUBLIC RIGHTS-OF-WAY
ORDINANCE NO. 2464
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 North Richland Hills (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. I 253(c) and state laws, including, but not limited to, Tex. Util. Code I 14.008; and
'54.205, and Tex. Civ. Statutes, Art. 1175; the City seeks to exercise it's 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
NORTH RICHLAND HILLS, TEXAS
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;
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(G) Keep track of the different entities uSing Public Rights-of-Way to prevent
interference between them;
(H) Assist on scheduling common trenching and street cuts; and
(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:
(A) 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 Texas Utility Code authorizing
that entity to provide local exchange telephone service].
(B) City means The City Of North Richland Hills, Texas. As used throughout, the term
City also includes the designated agent of the City.
(C) City Manager means the City Manager of the City or the City Manager's designee.
(D) 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.
(E) 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.
(F) 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.
(G) Public Rights-of-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
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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 is terminated as otherwise provided for in law.
(D) PREREQUISITES TO ISSUANCE OF CONSTRUCTION PERMIT - EACH PERSON
MUST REGISTER WITH THE CITY
In order for the City to know which Persons own Facilities in the Public
Rights-of-Way within the City, each such Person who owns Facilities shall register
with the City and provide the following information at a minimum: (i) 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.
(C) The City Manager shall report to the City Council upon the determination that a
Person has failed to comply with this Chapter.
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SECTION 6 - CONSTRUCTION OBUGA TIONS.
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:
(A) 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.
(B) A Person may be required to place certain Facilities within the Public Rights-of-Way
underground according to applicable City requirements absent a compelling
demonstration by the Person that, in any specific instance, this requirement is not
reasonable, feasible or is it equally applicable to other similar users of the Public
Rights-of-Way.
(C) A Person shall perform excavations and other construction in the Public
Rights-of-Way in accordance with all applicable City requirements, including the
obligation to use trench less technology whenever commercially economical and
practical and consistent with obligations on other similar users of the Public
Right-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.
(D) 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 Persons Facilities. A construction permit is not
required for routine maintenance that does not require excavation of 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
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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, unless extended for good cause
by the City.
(E) 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 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 Persons 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.
(F) 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 a 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.
(G) 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.
(H) 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 a
reasonable time 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.
(I) 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)
business 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
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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.
(J) 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.
(K) Except in the case of customer service interruptions and imminent harm to property
or Person (Emergency Conditions), 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.
(L) Within sixty (60) 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 the Persons business to
the extent they are prepared 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.
(M) 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.
(N) 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.
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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 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.
(0) 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 the 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 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 the
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.
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(F) Notwithstanding anything in 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 Public Rights-of-Way for the safe and reliable
operation, use and maintenance of its Facilities. All tree trimming shall be
performed in accordance with standards promulgated by the City. 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, except as to the trimming required to construct, maintain or
restore utility service.
(H) Persons 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 benefitting from the temporary rearrangements.
The 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 furnished to the City.
(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,
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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 and its officers, employees, board members and elected
representatives as additional insureds for all applicable coverage;
(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 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 subrogation against the City in
connection with damage covered by the policy.
SECTION 9 - INDEMNITY.
(A) Except as to Certificated Telecommunications Providers, 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
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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.
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 promulgate new or revised provisions in
compliance with the authority's decision or enactment.
SECTION 11 - GOVERNING LAW.
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.
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.
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SECTION 13 - EFFECTIVE DATE.
This Ordinance takes effect on the 27th day of March 2000.
Passed and Approved this 2th Day of March, 2000.
APPROVED:
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C1iãrles Scoma, Mayor
ATTEST:
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Patricia Hutson, City Secretary
APPROVED AS TO CONTENT:
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Randy Shiflet, Deputy
APPROVED AS TO LEGAL F
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