Item 6GCITY OF
SOUTHLAKE
MEMORANDUM
(September 4, 2012)
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Director of Public Works
Subject: Ordinance No. 1042, 2 nd Reading, Adopt an ordinance
regulating the installation, repair, and maintenance of utility
and telecommunications facilities within the right -of -way.
PUBLIC HEARING
Action
Requested: Ordinance No. 1042, 2nd Reading, Adopt an ordinance regulating
the installation, repair, and maintenance of utility and
telecommunications facilities within the right -of -way.
Background
Information: In 1996, The United States Congress passed major changes to the
Telecommunications Act of 1934. Title 3 of the new regulations
allowed for broader range of operators to enter the
telecommunication market to allow for greater competition. An
unintended consequence of the new rule was an exponential
increase in the number of media /telecommunication carriers
desiring to share the use of public right -of -way.
Because the City is required to share the use of public right -of -way
with any legitimate utility services provider, we need a way to
manage the installation and maintenance of those facilities.
Without any regulations regarding the placement of new pipes and
conduits, we frequently encounter telecommunication facilities
placed so close to water and waste water pipes that city crews
can't perform routine tasks without risking damage to
communication lines. Some notable requirements of this ordinance
are as follows:
• Liability insurance requirements
• Permit for each installation project
• "As built" plans for new and existing facilities
• As
separation from existing facilities
• Timely restoration of property
• Timely relocation of facilities in advance of city
projects
• Limits hours of lane closures
Staff recommends adoption of Ordinance No. 1042 regulating the
installation and maintenance of franchise utilities in the public right -
of -way. If approve on first reading, a public hearing will be held at
the September 4, 2012 council meeting.
Financial
Considerations: None
Strategic Link: The adoption of the right -of -way management ordinance links to
the City's strategy map relative to the strategic focus area of
Infrastructure and the corporate objective of improving performance
delivery and operational processes.
Citizen Input/
Board Review: The franchise utility providers were included in the development of
the ordinance.
Legal
Review: The ordinance has been reviewed by the City Attorney's office.
Alternatives: The City Council may approve Ordinance No. 1042 or deny it.
Staff
Recommendation: Approve Ordinance No. 1042 on 2nd Reading, Adopt an ordinance
regulating the installation, repair, and maintenance of utility and
telecommunications facilities within the right -of -way.
Supporting
Documents: Ordinance No. 1042
Staff
Contact: Robert H. Price, P.E., Public Works Director
Chuck Kendrick, Deputy Director of Public Works - Operations
ORDINANCE NO.
AN ORDINANCE REGULATING THE INSTALLATION, REPAIR AND
MAINTENANCE OF UTILITY AND TELECOMMUNICATIONS FACILITIES
WITHIN THE RIGHT -OF -WAY IN THE CITY OF SOUTHLAKE, TEXAS;
REQUIRING REGISTRATION AND A UTILITY CONSTRUCTION
PERMIT; PROVIDING FOR REVOCATION AND APPEAL
PROCEDURES; PROVIDING FOR THE FILING OF A MAP AND PLANS
BY RIGHT -OF -WAY USERS; PROVIDING FOR THE PROTECTION OF
THE SAFETY AND CONVENIENCE OF THE PUBLIC; PROVIDING FOR
THE RESTORATION OF THE PUBLIC RIGHT -OF -WAY; PROVIDING
THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL
ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING
FOR A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A
SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN PAMPHLET
FORM; PROVIDING FOR PUBLICATION IN THE MANNER
AUTHORIZED BY LAW; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Southlake, Texas ( "the City ") is a home rule city acting
under its power adopted by the electorate pursuant to Article XI, Section 5 of the Texas
Constitution and Chapter 9 of the Local Government Code; and
WHEREAS, pursuant to its home rule charter, the City has control of and
jurisdiction over the public streets and other rights -of -way of the City, with the right to
regulate or prohibit the location of pipes, cable, lines, wires or other facilities in the right -
of -way; and
WHEREAS, without proper regulation, the placement of such facilities within the
right -of -way will conflict with the primary uses of the right -of -way and will reduce the
efficient use of limited space for facilities; and
WHEREAS, in accordance with applicable federal law, including but not limited to
47 U.S.C. § 253(c), and applicable state laws, including but not limited to Tex. Util.
Code §§ 14.008 and 54.205 and Tex. Rev. Civ. Stats. Ann. art. 1175, subd. 2, the City
wishes to exercise its historical rights to control and manage its rights -of -way, all in
accordance with Tex. Loc. Gov't Code §§ 283.052and 283.056; and Texas Utility Code
§54.203; and
WHEREAS, the City Council deems that it is necessary to adopt this ordinance
regulating the placement and maintenance of utility facilities within the right -of -way to
promote public safety and convenience and to assure the efficient and orderly use of its
rights -of -way by the many gas, electric, cable, telecommunication and other utility
providers so that the best interests and general welfare of the public are served;
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NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF SOUTHLAKE, TEXAS:
SECTION 1
MANAGEMENT OF PUBLIC RIGHTS OF WAY
A. Responsibility.
It shall be the duty and responsibility of the Director of the Department of Public
Works or the Director's designee to administer, implement and enforce the provisions of
this ordinance.
B. Scope of Ordinance.
1. This ordinance governs the location, placement, installation, repair,
maintenance and removal of all Utility Facilities within all rights -of -way of
the City.
2. A Utility Provider with a valid, current, unexpired franchise agreement or
other authorization from the City to use the rights -of -way of the City may
continue to operate under and comply with that agreement until the
agreement expires or is terminated.
3. To the extent the provisions of this ordinance conflict with a current,
unexpired franchise agreement or other authorization from the City to use
the right -of -way, the provisions of the franchise shall prevail during the
term of the franchise. To the extent that the provisions of this ordinance
can be reconciled, both the franchise and this ordinance shall be given
effect.
C. Findings and Purpose.
The purpose of this ordinance is to:
1. Assist in the management of facilities placed in, on, or over the rights -of-
way of the City in order to provide for the orderly maintenance of such
rights -of -way, avoid costly interruption of utility service to the citizens,
minimize congestion, inconvenience, unsightly visual impact and other
adverse effects of utility service, and minimize the costs to the citizens
resulting from the placement of facilities within the rights -of -way;
2. Govern the use and occupancy of the rights -of -way;
3. Assist the City in its efforts to protect the public health, safety and welfare;
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4. Conserve the limited physical capacity of the rights -of -way held in public
trust by the City;
5. Preserve the physical integrity of the streets and highways;
6. Control the orderly flow of vehicles and pedestrians;
7. Prevent interference between the different entities using the rights -of -way;
and
8. Protect the safety, security, appearance and condition of the rights -of -way;
and
9. Comply with the requirements of applicable federal and state laws.
D. Right -of -Way Occupancy.
Except as otherwise exempted by law, prior to constructing facilities in, on or
over the public rights -of -way, a person must obtain a separate franchise or license
agreement from the City in addition to the registration required by this ordinance. A
registration obtained pursuant to this ordinance does not constitute such a franchise or
license agreement.
E. Definitions.
As used in this ordinance, the following terms shall have the meaning subscribed
herein:
Certificated Telecommunications Provider has the same meaning as that provided by
Texas Local Government Code, Section 283.002, as amended.
City means the City of Southlake or the designated agent of the City.
City Council means the City Council of the City of Southlake.
Construction means any work above the surface, on the surface or beneath the surface
of a public right -of -way, including, but not limited to, installing, servicing, repairing or
modifying any facility(s) in, above or under the surface of the public right -of -way, and
restoring the surface and subsurface of the public right -of -way, subject to the provisions
of section D.
Construction Performance Bond means any of the following forms of security provided
at the City's option:
(a) Individual project bond;
(b) Cash deposit;
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(c) Security of a form listed or approved under the statutes of the State of
Texas; or
(d) Letter of credit, in a form acceptable to the City.
Department means the Department of Public Works of the City.
Director means the Director of the Department of Public Works of the City or the
Director's designee.
Emergency means a condition that the City, Director, or Department determines; (1)
poses a clear and immediate danger to life or health, or an immediate and significant
loss of property; or (2) requires immediate repair or replacement of facilities in order to
restore service to a customer.
Excavation means any digging, hollowing, directional drilling or boring more than six (6)
inches below the surface of the ground.
Facility or facilities means the plant, equipment and property, including but not limited to
lines, poles, mains, pipes, pipelines, conduits, ducts, cables, wires, splice boxes, tracks,
tunnels, utilities, vaults, and other appurtenances or tangible things located, or are
proposed to be located, under, on or above the surface of the ground within the rights -
of -way of the City.
Municipal Authorization means an individual grant or agreement permitting a Utility
Provider to use one or more rights -of -way of the City, issued by the City and accepted
by such Utility Provider.
Permit or Permit to Construct means a permit to perform construction granted in
accordance with the City's ordinances.
Person means a natural person, corporation, company, association, partnership, firm,
limited liability company, joint venture, joint stock company or association, public or
private agency, sole proprietorship, a utility or any other legal entity; including a
successor or assign of any of the foregoing. The term shall also mean a political
subdivision, other than the City.
Registration means the document confirming the City's approval only of a particular
proposed location within specific right(s) -of -way of specifically identified proposed utility
facilities. Registration does not constitute consent by the City for utility facilities to be
placed in the right -of -way, which consent must also be obtained unless otherwise
provided by law or other agreement.
Right -of -Way means the area on, below, or above a public roadway, highway, street,
public sidewalk, alley, waterway, or utility easement in which the City has an interest.
The term does not include the airwaves above the Right -of -Way with regard to wireless
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telecommunications, or a public right -of -way owned, regulated and maintained by a
political subdivision other than the City.
Restore or Restoration means the process by which a right -of -way is returned following
completion of construction to a condition that is equal to or better than the condition that
existed prior to commencement of construction.
Utility Construction Permit means that document giving consent to construct, install,
repair, relocate or remove facilities within the right -of -way. A Utility Construction Permit
only allows the holder to construct those specific facilities described in such permit, and
in that part of the right -of -way described in such permit.
Utility Owner means any person who owns any facility or facilities that are or are
proposed to be installed or maintained in the rights -of -way. Included within this definition
is the owner's contractor, subcontractor, agent or authorized representative.
Utility Provider means a business that offers a public utility service including, but not
limited to, gas, electricity, cable or telecommunications services, and that owns, rents,
or has an agreement which authorizes it to utilize Facilities within the right -of -way.
Utility Provider includes the Utility Provider's contractor, subcontractor, agent or
authorized representative.
F. Registration Required.
1. In order to protect the public health, safety and welfare, all Utility Owners
shall register with the City on a form provided by the Director, and comply
with the requirements therefore.
2. The Utility Owner applying for registration shall furnish the City the
following information, which shall be subscribed and sworn to before a
notary public:
a. The name, address, and telephone number of the Utility Owner;
b. Any trade names under which the Utility Owner does or proposes to
do business;
C. The name, address and telephone number of the person(s) who will
be the contact person(s) for the Utility Owner;
d. The names, addresses and telephone numbers of any contractor or
subcontractor, if known, who will be working in the right -of -way on
behalf of the Utility Owner;
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e. The name(s) and telephone number of an emergency contact who
shall be available twenty -four (24) hours a day to respond to
emergencies; and
f. Proof of insurance and bonds, as follows:
(1) Except as otherwise specified, the Utility Owner and a
contractor of any tier will be required at their own expense to
maintain in effect at all times during the performance of the
work insurance coverage's with limits not less than those set
forth below with insurers and under forms of policies
satisfactory to the City. It shall be the responsibility of the
Utility Owner to insure Utility Owner and a contractor of any
tier are adequately insured at all times. The existence of
such insurance shall not relieve the Utility Owner or a
contractor of any tier of any legal responsibility or obligation,
whether in contract or tort.
(2) The Utility Owner shall submit to the Director certificates of
insurance for each policy, required by this subsection, prior
to the commencement of any work and during each year of
the registration term, as evidence that Utility Owner and a
contractor of any tier have the policies providing the required
coverages and limits of insurance which are in full force and
effect. The certificates of insurance or insurance policies
shall provide that any company issuing an insurance policy
required by this subsection shall provide not less than thirty
(30) days advance written notice of any cancellation.
Additionally, the Utility Owner shall immediately provide
written notice to the Director upon receipt of any notice of
cancellation of an insurance policy or a decision to terminate
or alter any insurance policy required by this subsection.
(3) All policies, other than those for Worker's Compensation,
shall be written on an occurrence basis and not on a claims
made basis, and shall name the City, its officers and
employees as additional insureds.
(4) All insurance policies required by this subsection shall
contain an endorsement requiring the insurer to provide the
Director with At least thirty (30) days prior written notice of
any intention not to renew or to cancel such policy, such
notice to be given by certified or registered mail.
(5) All insurance shall be provided through valid and
enforceable policies, insured by insurers licensed to do
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business in the State of Texas. All insurance carriers and
surplus line carriers shall be rated A- or better by A.M. Best
Company. Insurance policies must provide that the issuing
company waives all right to recovery by way of subrogation
against the City in connection with damage covered by the
policy.
(6) The Utility Owner, and thereafter, for renewal purposes, the
registration holder, shall pay all insurance premiums and
assessments required to maintain such insurance. A
company which issues an insurance policy has no recourse
against the City for payment of a premium or assessment.
(7) The City will accept certificates of self- insurance issued by
the State of Texas or letters written by the Utility Owner, in
those instances where the State does not issue such letters,
provided that the Utility Owner demonstrates by written
information to the City's Director of Finance that it has
adequate financial resources to be a self- insured entity
satisfying the requirements of this section for insurance and
bonds.. Certificates of self- insurance and letters written by
the Utility Owner shall provide the same coverage as
required herein.
(8) The Utility Owner and a contractor of any tier shall maintain
workers' compensation and employers' liability insurance in
accordance with the laws of the state of Texas or, in those
instances where the state does not issue such letters, and
provided that the Utility Owner demonstrates by written
information to the City's Director of Finance that it has
adequate financial resources to be a self- insured entity after
the date of passage of this ordinance, satisfies the
requirements of this subsection for insurance and bonds,
letters written by the Utility Owner which provide the same
coverage as required herein.
(9) The Utility Owner and a contractor of any tier shall also
maintain commercial general liability insurance with
minimum limit of Five Million Dollars ($5,000,000) as the
combined single limit for each occurrence of bodily injury,
sickness, disease or death of any person, other than the
policy holder's employees, or damage to property of the City
or any other person arising out of an act or omission of the
policy holder, policy holder's subcontractor, agents or
employees. This policy shall also include protection against
claims insured by usual personal injury liability coverage as
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well as coverage for completed operations, products liability,
contractual liability premises /operations, and independent
contractors, as well as coverage that does not contain an
XCU coverage exclusion.
(10) The Utility Owner and the Utility Owner's contractor shall
also maintain automobile liability insurance covering the
policy holder, its employees and agents, subcontractors and
the additional insured's 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 -site and off -site of all motor vehicles whether
they are owned, non -owned or hired. The liability shall not
be less than Two Million Dollars ($2,000,000) as the
combined single limit for each occurrence for bodily injury
and property damage.
(11) The coverage amounts set forth above may be met by a
combination of underlying and umbrella policies, so long as
in combination the limits equal or exceed those stated.
(12) The Utility Owner, and thereafter, the registration holder,
without cost to the City, shall file performance and
maintenance surety bonds for any construction to occur in
the right of way. The surety bonds shall be issued by a
surety company authorized to do business in the State of
Texas. The maintenance bond shall be for a period not less
than two (2) full years after the completion of the
construction, and both bonds shall be in the amount of the
estimated amount of the cost to restore the right -of -way
given the work to be done, to protect the City in the event the
registration holder leaves a job site in the right -of -way
unfinished, incomplete or unsafe.
(13) A Utility Provider with a franchise in effect on the date of this
ordinance satisfies the requirements of this subsection if the
City's Director of Finance determines that the provider's
franchise adequately provides for insurance and bonds;
otherwise the utility provider shall comply with the
requirements of this subsection.
(14) Failure of the City to verify compliance with the requirements
of this section shall not waive any such requirements.
g. Such other information as the Director may determine is reasonably
necessary for proper consideration of the application.
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G. Registration Issuance.
1. The Director shall issue a registration to the Utility Owner if the Director,
after review of the application, determines that the Utility Owner:
a. Has complied with all requirements for issuance of the registration;
b. Has not made a false or inaccurate statement as to a material
matter on the application for registration; and
C. Has not failed to pay any fees owed the City as a result of work
performed in the right -of -way.
2. A person who has in effect an existing franchise or license agreement with
the City to use the right -of -way at the time of this ordinance shall still
comply with the provisions of this ordinance, except to the extent the
terms of the franchise or license agreement conflict with this ordinance,
after which the Director shall issue a registration.
H. Term of Registration and Fee.
1. A registration shall be valid for a period of five (5) years. A person may
renew a registration by making application as provided by section E. A
registration is not transferrable.
2. Each registration holder shall pay to the City a fee for the use of the right -
of -way in an amount established by the City Council, except to the extent
an existing franchise or license agreement or applicable state or federal
law provides otherwise.
Revocation of Registration.
The Director shall revoke a registration if the Director determines that the
registration holder has:
1. given false or inaccurate information on the application for registration or
in a hearing concerning the registration;
2. violated any provision of this ordinance; or
3. violated the terms of its franchise, if the registration holder has a franchise
with the City.
J. Appeal from Denial or Revocation of Registration.
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If the Director denies or revokes a right -of -way registration, the City shall give
written notice to the Utility Owner or registration holder by (1) personal service; (2)
certified mail, return receipt requested; or (3) electronic mail with delivery and receipt
confirmed by return e -mail. The Utility Owner or registration holder may appeal the
decision to deny or revoke a right -of -way registration by filing written notice of such
appeal with the Director, with a copy to the City Secretary, within five (5) days after
receipt of the notice. The City Manager shall give written notice, by (1) personal
service; (2) certified mail, return receipt requested; or (3) electronic mail with delivery
and receipt confirmed by return e -mail, of the time and place of the appeal hearing to
the person appealing. The City Manager shall conduct a hearing and shall make a
decision based on a preponderance of the evidence at the hearing. The burden of proof
shall be on the Utility Owner or registration holder. Compliance with formal rules of
evidence shall not be required. The decision of the City Manager shall be final.
K. As -Built Plans.
1. A utility provider which has facilities in the right -of -way existing as of the
effective date of adoption of this ordinance and has not provided the City
"As -Built Plans" shall provide such information to the Director not later
than one (1) year after the effective date of this ordinance in the format
specified by the Director and with sufficient detail to convey the type, size
and location (within two feet (2') horizontally and vertically), including
depth, of its facilities. The Utility Owner shall submit "As -Built Plans" in
writing and in such digital format as required by the Director. If the Utility
Owner does not submit "As -Built Plans" as required by this section, it
waives all claims against the City for any damage caused to such Utility
Owner's facilities by any future construction or utility installation activities,
regardless of who perfoms such work.
2. For facilities constructed after the effective date of this ordinance, a Utility
Owner shall provide the Director with "As -Built Plans" within ninety (90)
days of completion of facilities in the right -of -way. The plans shall be
provided in writing and in such digital format as required by the Director in
accordance with the provisions of subsection 1 above.
3. The Director, for good cause, may waive all, or portions, of the
requirements of subsections 1 and 2 above. Determination of good cause
shall include an assessment of the following: (i) the Utility Owner's ability
to feasibly and economically remove customer specific, proprietary or
confidential information from its plans, and (ii) the Utility Owner's standard
business practice relative to the preparation of construction and "As- Built"
plans. The Director may impose conditions on any waiver granted under
this subsection. The Director may reassess a waiver granted under this
subsection, from time to time, to determine whether the Utility Owner's
ability to provide "As -Built Plans" has changed.
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4. Nothing contained in this ordinance shall create, expand or enlarge the
liability of the City for damage to any utility facilities of any Utility Owner, or
create any duty of the City to any Utility Owner or other third party, except
as expressly provided in this ordinance.
L. Tree Trimming; Temporary Removal of Facilities.
1. A Utility Owner 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 National Arborist Association and the International Society of
Arborculture, and in compliance with the City's tree preservation
ordinance, which includes the requirement to obtain a Tree Trimming
Permit from the City. Should the Utility Owner, its contractor or agent, fail
to remove such trimmings within forty -eight (48) hours during the
performance of scheduled maintenance activities and fourteen (14) days
after all service restoration activities have been completed due to
emergency conditions, the City may remove the trimmings or have them
removed, and upon receipt of a bill from the City, the Utility Owner shall
promptly reimburse the City for all costs incurred within thirty (30) calendar
days.
2. A Utility Owner shall temporarily remove, raise or lower its aerial facilities
to permit the moving of houses or other bulky structures as requested by
the City. The expense of these temporary rearrangements shall be paid by
the party or parties requesting and benefiting from the temporary
rearrangements. The Utility Owner may require prepayment or prior
posting of a bond from the party requesting the temporary move.
M. Utility Construction Permit Required.
1. A Utility Owner shall obtain a Utility Construction Permit prior to
performing any excavation, construction, relocation, removal, installation,
repair or maintenance of facilities within the right -of -way, except as
expressly provided otherwise herein. A Utility Construction Permit is
required for new construction and replacement or upgrading of a Utility
Provider's network in the right -of -way, whether located above the surface,
on the surface, or underground. A Utility Construction Permit Application
shall be signed by an authorized representative.
2. The following work undertaken by a Utility Owner does not require a Utility
Construction Permit:
a. Work to existing facilities required by emergency conditions,
provided that the Utility Owner complies with subsection 3 below;
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b. Work that does not require any excavation or construction, and
which obstructs vehicular or pedestrian traffic on a street, alley or
sidewalk for less than two (2) hours and which does not occur
between the hours of 7:00 a.m. to 9:00 a.m. and 4:30 p.m. to 6:30
p.m. on weekdays, provided the Utility Owner has complied with the
following requirements:
(1) The Utility Owner has submitted a traffic control plan
prepared in accordance with the Manual on Uniform Traffic
Control Devices and in a form approved by the Director;
(2) The Director has approved the traffic control plan;
(3) The work is performed in compliance with the traffic control
plan; and
(4) Unless the work is performed under emergency conditions,
the person has given the Director four (4) hours written
notice of the proposed work;
or
C. Work performed to initiate service to an individual customer's
property, provided that the requirements of subsection b. above are
met, if applicable.
3. When performing work required by emergency conditions, the Utility
Owner shall notify the Director as soon as practical, but in no event more
than seventy -two (72) hours after commencing such work, and shall
submit to the City within seventy -two (72) hours after commencing such
work a reasonably detailed description of the work performed in the right -
of -way. An updated "As -Built Plans" of facilities relocated during
emergency work shall be provided to the Director within ninety (90) days
of completion of the work.
4. A Utility Owner applying for a Utility Construction Permit shall pay to the
City a Utility Construction Permit fee in an amount established by the City
Council except to the extent an existing franchise or license agreement or
applicable state or federal law provides otherwise.
N. Utility Construction Permit Application.
1. An applicant shall submit an application for a Utility Construction Permit at
least ten (10) working days before the commencement of work proposed
in the application. Such application shall be signed by a person
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authorized by the applicant to file such application. Upon request of the
Utility Owner, the Director may approve a shorter time period for submittal
of an application.
2. Except as otherwise permitted by this ordinance, prior to the
commencement of any work, the person requesting a Utility Construction
Permit will provide the Director with three (3) sets of engineering plans in
the format specified by the Director showing the following information:
a. The proposed location and route of all facilities to be constructed or
installed and the Utility Owner's plan for right -of -way construction;
b. Of the proposed facilities on a scale of one inch (1 ") equals fifty feet
(50'), unless otherwise approved by the Director;
C. Description of the location of all right -of -way and utility easements
that the Utility Owner plans to use for such construction or
installation;
d. Description of all existing City and, to the extent known, other utility
facilities which intersect, are impacted by, or in close proximity to
the Utility Owner's proposed facilities and /or work;
e. Description of the facilities the Utility Owner proposes to install,
such as pipe size, number of interducts, valves, etc.;
f. On a yearly basis, the typical details of manholes and /or handholes
the Utility Owner plans to use or access; and
g. A complete legend; and
h. An erosion control plan in accordance with City ordinances and
other applicable laws and regulations.
3. The applicant shall also submit documentation showing the following:
a. The name, address and phone numbers of the contractor or
subcontractor who will perform the actual construction, including
the name and telephone number of a representative of the
contractor who may be reached twenty -four (24) hours a day during
construction.
b. The methods to be employed for the protection of existing
structures, fixtures, and facilities within or adjacent to the right -of-
way, and the dates and times work will occur, all of which
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(methods, dates, times, etc.) are subject to approval of the Director,
which approval will not be unreasonably withheld;
C. A statement that the proof of insurance, bond or other financial
information, as required by this ordinance, are current and on file
with the City;
d. A copy of any permit or approval issued by any federal or state
authorities for work in federal or state right -of -way located in the
City;
e. Verification that the applicant has a valid right -of -way registration
from the City;
f. Evidence that all of the Utility Providers in the area have been given
notice of the construction. (Notice to utilities subject to Chapter 251
of the Texas Utilities Code may be accomplished by providing the
City with the reference number assigned by the notification center
established pursuant to Chapter 251 of the Texas Utilities Code. If
this reference number is not known at the time of application, the
reference number shall be provided at least forty -eight (48) hours
prior to commencement of construction); and
g. A copy of the applicant's traffic control plan and policy for work
performed in the right -of -way.
4. The Director may require a pre- construction meeting with the Utility Owner
and its contractor.
O. Utility Construction Permit Issuance.
1. The Director shall promptly process each valid and administratively
complete Utility Construction Permit Application and shall issue a Utility
Construction Permit, provided that the Utility Owner is in compliance with
the provisions of this ordinance.
2. The Utility Construction Permit shall state to whom it is issued, location of
work, identification of facilities to be installed, repaired or upgraded or
maintained, dates and times of work that is to take place, and any other
condition set out by the Director.
3. The permit holder shall:
a. Maintain a copy of the Utility Construction Permit and approved
engineering plans at the construction site, which shall be made
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available for inspection by the Director at all times when
construction or installation work is occurring;
b. Complete all construction work authorized by the Utility
Construction Permit in the time specified, unless the permit holder
has obtained an extension from the Director; and
C. Provide the Director access to the work site, and such further
information that may reasonably be required by the Director to
ensure compliance with the Utility Construction Permit.
d. Immediately notify the Director of any conflicts discovered with
existing facilities, damage to any existing facilities, or other
circumstances that reasonably require the City to take corrective
action.
4. The Utility Construction Permit shall expire if the work authorized by the
permit does not commence within ninety (90) days from the date of
issuance of the permit. The Director may authorize renewal of the permit
for two additional sixty (60) day periods without resubmission of an
application, provided that the scope of work set forth in the original
application is not changed.
P. Revocation of Utility Construction Permit.
The Director shall revoke a Utility Construction Permit if the Director determines
that the permit holder has:
1. Given false or inaccurate information on the application for a Utility
Construction Permit or in a hearing concerning the Utility Construction
Permit; or
2. Has violated any provisions of this ordinance.
Q. Appeal from Denial or Revocation of Utility Construction Permit.
If the Director denies or revokes a Utility Construction Permit, the Director shall
give notice by (1) personal service; (2) certified mail, return receipt requested; or (3)
electronic mail with delivery confirmed by return e -mail; to the Utility Owner or
registration holder. The Utility Owner or registration holder may appeal the decision to
deny or revoke the Utility Construction Permit by filing written notice with the Director
with a copy to the City Secretary within five (5) days after receipt of notice. The City
Manager shall give written notice of the time and place of the hearing to the person
appealing by (1) personal service; (2) certified mail, return receipt requested; or (3)
electronic mail with delivery confirmed by return e -mail. The City Manager shall conduct
a hearing and shall make a decision based on a preponderance of the evidence
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presented at the hearing. The burden of proof shall be on the Utility Owner or
registration holder. Compliance with formal rules of evidence shall not be required. The
decision of the City Manager shall be final.
R. Placement of Facilities.
1. All facilities constructed within the right -of -way after the effective date of
this ordinance shall:
a. Conform to the City's Design Standards (Standard Details of
Construction), which provide a guideline for right -of -way use and all
codes and ordinances in effect at the time of submittal of the
application;
b. Be installed in accordance with plans and at the specific location
within the right -of -way approved by the City;
C. Be installed or constructed so as not to unreasonably interfere with:
(1) Traffic over City streets;
(2) The health, safety or welfare of the owners of property
adjoining the right -of -way; or
(3) The operation of other facilities or equipment situated within
the right -of -way, whether owned or maintained by the City or
other utility providers; and
d. Be located and situated so as to minimize the space used and
maximize the space available for other utility facilities.
2. To the extent permitted by law, the Director may require the location of
facilities underground.
3. Any Utility Owner doing work in the right -of -way shall properly install,
repair, and maintain its facilities so as to preserve the integrity of the right -
of -way.
4. Facilities shall be considered to be improperly installed, repaired,
upgraded or maintained if:
a. The installation, repair, upgrade or maintenance endangers people
or property;
b. The facilities do not meet the applicable City codes;
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C. The facilities are not capable of being located using standard
practices; or
d. The facilities are not located in the proper place at the time of
construction in accordance with the plans approved by the Director.
5. Whenever by reasons of widening or straightening of streets, water or
sewer line projects, or any other public works projects, (e.g., install or
improve storm drains, water lines, sewer lines, etc.) it shall be deemed
necessary by the City Council to remove, alter, change, adapt, or conform
the underground or overhead facilities of a Utility Owner to another part of
the right -of -way, such alterations shall be made by the Utility Owner of the
facilities at their expense (unless provided otherwise by applicable state or
federal law, or a valid franchise, a license or other municipal authorization)
within the time limits set by the Director working in conjunction with the
Utility Owner, or if no time frame can be agreed upon, within ninety (90)
days from the day the notice was sent to make the alterations. Facilities
not moved after ninety (90) days or within the approved schedule, if such
exists, as same may be extended from time to time, shall be deemed
abandoned, and, after thirty (30) days written notice, the City may have
the facilities removed by a qualified contractor and the Utility Owner shall
be responsible for all costs incurred by the City to perform such work and
shall submit payment for said costs within thirty (30) calendar days from
the date of the City's invoice.
6. The City shall have the right to, and may at any time, order and require a
Utility Owner to remove and abate any facility that the Director determines
is necessary to address a public health or safety emergency. If, after
written notice, the Utility Owner or registration holder fails or refuses to act
within the time limits set by the Director working in conjunction with the
Utility Owner, or if no time frame can be agreed upon, within ninety (90)
days from the day the notice was sent, the City may have the facilities
removed by a qualified contractor. The Utility Owner shall be responsible
for all costs incurred by the City under this section and shall submit
payment for said costs within thirty (30) calendar days from the date of the
City's invoice
S. Notification.
1. An applicant for a Utility Construction Permit or its contractor shall notify a
notification center established pursuant to Chapter 251 of the Texas Utility
Code, prior to conducting any work in the right -of -way such as excavating,
drilling, underground boring, jacking, or open cutting.
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2. A permit holder shall provide the Director with the following information at
least forty -eight (48) hours before beginning work under the Utility
Construction Permit:
a. The reference number received from the notification center;
b. The exact dates and time work will be performed under the Utility
Construction Permit; and
C. The name, address and telephone number of the person or entity
who will perform the work, including a representative who will be
available at all times during construction, and who may be
contacted twenty -four (24) hours a day.
3. The notice of work to the Director must be in writing and may be sent by
personal service, facsimile transmission or certified mail, return receipt
requested. If notice is by certified mail, it shall be sent no later than four
(4) business days before work is to commence work.
4. The Utility Owner shall give to the owners of property which abuts the
work site reasonable notice in accordance with the notice policies of the
Department of Public Works. The Utility Owner shall coordinate and
communicate with private property owners whenever access to private
property is restricted.
T. Worksite Regulations.
1. The Utility Owner or the Utility Owner's contractor shall notify the Director
at least twenty -four (24) hours in advance that construction is ready to
commence.
2. All construction shall be in conformance with all City codes and applicable
local, state and federal laws.
3. Three -by -three foot (3' x 3') informational signs stating the identity of the
person doing the work, telephone number and Utility Owner's identity and
telephone number shall be placed at the location where construction is to
occur forty -eight (48) hours prior to the beginning of work in the right -of-
way and shall continue to be posted at the location during the entire time
the work is occurring. An informational sign stating the construction work
is underway shall be posted on public right -of -way one hundred (100) feet
before the construction location commences and each three hundred
(300) feet thereafter, unless other posting arrangements are approved or
required by the Director.
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4. Lane closures on major thoroughfares will be limited to between 9:00 a.m.
and 4:30 p.m. unless the director grants prior approval for more extensive
closures. Arrow boards will be required for lane closures on all major
thoroughfares and collectors as defined in the City Master Thoroughfare
Plan, and with all safety devices and procedures required by the Texas
Manual on Uniform Traffic Control Devices.
5. Utility Owners are responsible for the workmanship of, and any damages
caused by, the Utility Owner's contractors or subcontractors. An
authorized representative of the Utility Owner shall be available to the
Director at all times during construction.
6. The Utility Owner or contractor or subcontractor will notify the Director
immediately of any damage to any other utilities, including City utilities.
7. It is the City's policy not to cut streets or sidewalks unless reasonably
necessary; therefore, when a street or sidewalk cut is required, prior
approval must be obtained from the Director and all requirements of the
City shall be followed. Repair of all street and sidewalk removals must be
made promptly to avoid safety hazards to vehicle and pedestrian traffic,
and shall be in accordance with all applicable City specifications and
details for restoration within public rights -of -way.
8. Installation of facilities must not interfere with City utilities, including gravity
dependent facilities. Facilities shall not be located over, or within two feet,
horizontally or vertically, of any water or sanitary sewer mains, unless
approved in advance by the Director in writing.
9. All directional boring shall have a locator place bore marks and depths
while the bore is in progress. Locator shall place mark at each stem with
paint dot and depth at least every other stem.
10. The working hours in the rights -of -way are 7:00 a.m. to 7:00 p.m., Monday
through Saturday. Work that needs to be performed after 7:00 p.m. or on
Sunday must be approved in advance by the Director. No work will be
done, except for emergencies, on official City holidays.
11. Persons working in the right -of -way are responsible for obtaining line
locates from all affected utilities or others with facilities in the right -of -way
prior to any excavation. Use of a geographic information system or
reference to the "As -Built Plans" does not satisfy this requirement.
12. When required by the Director, the Utility Owner shall verify locations of
existing facilities by potholing, hand - digging or other method approved by
the Director prior to any mechanical excavation or boring.
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13. Placement of all manholes and /or handholes must be approved in
advance by the Director. Handholes or manholes will not be located in
sidewalks, unless approved by the Director.
14. Locate flags shall not be removed from a location while facilities are being
constructed.
15. When construction requires pumping of water or mud, the water or mud
shall be contained in accordance with the Director's directives.
16. A Utility Owner shall perform operations, excavations and other
construction in the public rights -of -way in accordance with all applicable
City requirements, including the obligation to use boring and other
trenchless technology whenever feasible and commercially reasonable.
The City shall waive the requirement for trenchless technology if it
determines that the field conditions warrant the waiver, based upon
information provided to the City. 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 Utility Owner shall follow all
reasonable construction directions given by the City in order to minimize
any such interference.
17. Backfilling of all bore pits, potholes, trenches or any other holes shall be
completed daily, unless other safety requirements are approved by the
Director. Holes with only vertical walls shall be covered and secured to
prevent entry by children. Bore pits, trenches or other holes shall be left
open for continuation of work overnight only if approved by the Director,
and shall be fenced and barricaded according to industry best practices.
U. Traffic and Streets.
1. Except in an emergency, all street closures or detours that will exceed
twenty -four (24) hours shall be posted by a sign at least two (2) days prior
to the closure or detour. If a cut or opening in a street is left open after
6:00 p.m., safety measures shall be taken by the Utility Construction
Permit holder, including but not limited to, (i) covering the cut with steel
plates (ii) a barricade or temporary fencing must be placed on both sides
of the cut and (iii) flares or red or amber flashing lights shall be placed in
front of each barricade.
2. Any construction abutting a school must be coordinated with the Director
so as to minimize traffic conflicts and street closures during school days.
V. Restoration of the Right -of -Way and Private Property.
1. The Utility Owner shall be responsible for any damage caused by
construction, whether to public or private property, and shall immediately
Page 20
repair or replace said property or compensate the property owner for the
damage.
2. The Utility Owner shall restore the property affected by construction to a
condition that is equal to or better than existed prior to construction, and in
accordance with applicable City specifications, unless otherwise approved
by the Director. The restoration shall, at a minimum, include the following:
a. Replacing all ground cover with the type of ground cover damaged
during work to a condition equal to or better either by sodding or
seeding, or as directed by the Director;
b. Installation of all manholes and handholes, as required;
C. Backfilling of all bore pits, potholes, trenches or any other holes,
unless other safety requirements are approved by the Director;
d. Leveling of all trenches and backhoe lines;
e. Restoration of excavation site;
f. Restoration of all hardscape, paving and driveways;
g. Restoration of all landscaping, ground cover and sprinkler systems;
and
h. Removal of all locate -flags during the clean -up process.
3. Restoration work must be commenced within five (5) working days of
completion of construction, and completed promptly, but in no event later
than thirty (30) days after the completion of all construction, unless
otherwise approved by the Director in writing. Access to private property
shall be given priority during construction.
4. The Director shall give written notice to the Utility Owner if restoration
work does not meet the quality approved by the Director or is not
performed timely. If after notice, the deficiencies are not remedied within
ten (10) days, the Director may issue a Stop Work order and place a hold
on all future permits. Stop Work orders and holds placed on future
permits shall remain in effect until restoration work is completed to the
quality approved by the Director.
5. Upon failure of a Utility Owner to perform such restoration, and after
written notice has been given to the Utility Owner by the Director as
provided above, the City may repair such portion of the public rights -of-
way as may have been disturbed by the Utility Owner, its contractors or
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agents, and invoice the Utility Owner for all costs incurred. Upon receipt of
an invoice from the City, the Utility Owner will reimburse the City for the
costs so incurred within thirty (30) calendar days from the date of the City
invoice.
6. Should the City reasonably determine, within one year (1) years from the
date of the completion of construction, that the restoration work, including,
but not limited to, the surface, base, irrigation system and landscape
treatment requires additional restoration work to meet existing City
standards, the Utility Owner shall perform such additional restoration work
to meet pre- construction conditions or existing standards of the City.
7. This section is intended to provide the general minimum requirements for
restoration following construction activities in the Right -of -Way, but other
ordinances, laws and regulations may contain additional or more specific
provisions. Therefore, nothing contained in this section shall relieve the
Utility Owner from the requirements of any other City ordinance, or other
applicable law or regulation.
W. Failure to Complete Work.
If the Utility Owner, the Utility Owner's contractor or the Utility Owner's
subcontractor fails to diligently perform any construction permitted under a Utility
Construction Permit, abandons the job or for other reasons does not complete the
construction within a timely manner, or fails to restore the right -of -way or other property
as required by this ordinance, the City, after written notice, shall have the authority to
take any action necessary to restore right -of -way to a good and safe condition. If the
failure to complete construction causes a safety hazard, the City may commence
restoration and shall notify the Utility Owner as promptly as possible after commencing
work. The Utility Owner shall be responsible for all costs incurred by the City under this
section and shall submit payment for said costs within thirty (30) calendar days from the
date of the City's invoice. If the Utility Owner fails to do so, the Director may issue a
Stop Work order and place a hold on all future permits. Stop Work orders and holds
placed on future permits shall remain in effect until all amounts owed are repaid.
X. Indemnity.
1. Unless otherwise provided by law, each Utility Owner placing facilities in
the public rights -of -way shall agree, and by requesting use of the rights -of-
way does agree, to promptly defend, indemnify and hold the City harmless
from and against all damages, costs, losses or expenses; (1) 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 Utility Owner's acts or omissions; (2) from and
against any and all claims, demands, suits, causes of action, and
judgments for: (a) damage to or loss of the property of the Utility Owner,
Page 22
any other utility owners, owners of other property, their contractors and
subcontractors, the City's agents, officers, and employees, and other third
parties); and /or: (b) death, bodily injury, illness, disease, loss of services,
or loss of income or wages to any person arising out of, incident to,
concerning or resulting from the negligent or willful act or omissions of the
Utility Owner, its agents, employees, and /or subcontractors, in the
performance of activities pursuant to this article.
2. This indemnity provision shall not apply to any liability resulting from the
negligence of the City, its officers, employees, agents, contractors, or
subcontractors.
3. The provisions of this indemnity are solely for the benefit of the City and
not intended to create or grant any rights, contractual or otherwise, to any
other property or utility owner or other entity.
4. A Utility Owner shall immediately advise the Director and the City of actual
or potential litigation that may develop or may affect the Utility Owner's
obligation to defend and indemnify the City.
Y. Enforcement and Penalties.
1. A person commits an offense if the person attempts to place, places,
attempts to cause to be placed or causes to be placed any facilities within the
right -of -way in any manner other than the manner provided by this ordinance.
A person commits an offense if the person owns or operates facilities within the
right -of -way without first having obtained a registration from the City, except as
expressly permitted otherwise in this ordinance.
2. Whenever it appears that a Person has violated, or continues to violate,
any provision of this ordinance that relates to: (a) the preservation of public
safety relating to the methods or procedures for construction of any utility facility
or improvement; or (b) the preservation of public health or safety; the City
may petition the State district court or the county court at law of Tarrant County,
through the City Attorney, for either the injunctive relief in this section, and may
obtain against the Utility Owner, or the Utility Owner's contractor or
subcontractor, or any other person regulated by this ordinance, a temporary or
permanent injunction, as appropriate, that: (a) prohibits any conduct that
violates any provision of this ordinance; or (b) compels the specific performance
of any action that is necessary for compliance with any provision of this
ordinance.
3. Any Person who has violated any provision of this ordinance, or any order
issued hereunder, shall be strictly liable for such violation, regardless of the
presence or absence of a culpable mental state, and shall, upon conviction, be
Page 23
subject to a fine of not more than $2000 per violation, per day for violations
relating to public health and safety, and $500 per violation, per day for other
violations. In determining the amount of any fine imposed hereunder, the court
shall take into account all relevant circumstances, including, but not limited to,
the extent of harm caused by the violation, the magnitude and duration of the
violation, any economic benefit gained through the violation, corrective actions by
the violator, the compliance history of the violator, the knowledge, intent,
negligence, or other state of mind of the violator, and any other factor as justice
requires.
SECTION 2.
This ordinance shall be cumulative of all provisions of ordinances and of the
Code of Ordinances of the City of Southlake, Texas, as amended, except where the
provisions of this ordinance are in direct conflict with the provisions of such ordinances
and such Code, in which event the conflicting provisions of such ordinances and such
Code are hereby repealed.
SECTION 3.
It is hereby declared to be the intention of the City Council that the phrases,
clauses, sentences, paragraphs, and sections of this ordinance are severable, and if
any phrase, clause, sentence, paragraph or section of this ordinance shall be declared
unconstitutional by the valid judgment or decree of any court of competent jurisdiction,
such unconstitutionality shall not affect any of the remaining phrases, clauses,
sentences, paragraphs and sections of this ordinance, since the same would have been
enacted by the City Council without the incorporation in this ordinance of any such
unconstitutional phrase, clause, sentence, paragraph or section.
SECTION 4.
All rights and remedies of the City of Southlake are expressly saved as to any
and all violations of the provisions of any ordinances affecting Management of Public
Rights of Way which have accrued at the time of the effective date of this ordinance;
and, as to such accrued violations and all pending litigation, both civil and criminal,
whether pending in court or not, under such ordinances, same shall not be affected by
this ordinance but may be prosecuted until final disposition by the courts.
SECTION 5.
The City Secretary of the City of Southlake is hereby authorized to publish this
ordinance in book or pamphlet form for general distribution among the public, and the
operative provisions of this ordinance as so published shall be admissible in evidence in
all courts without further proof than the production thereof.
SECTION 6.
Page 24
The City Secretary of the City of Southlake is hereby directed to publish caption,
penalty clause, and effective date clause in any manner allowed by law.
SECTION 7.
This Ordinance shall be in full force and effect form and after its passage and
publication as provided by law, whichever occurs later, and it is so ordained.
[signature pages to follow]
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PASSED AND APPROVED on the 1st reading the
2012.
1wf•Z
ATTEST:
day of
CITY SECRETARY
PASSED AND APPROVED
, 2012.
on the 2nd reading the
day of
1wf•Z
ATTEST:
CITY SECRETARY
APPROVED AS TO FORM AND LEGALITY:
CITY ATTORNEY
WASouthlake\ Ordinances \Right.of.Way \Southlake ROW Ordinance.tgs.final.doc
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