HomeMy WebLinkAbout05242001 BSC Agenda Item 8 • •
City of West University Place • Texas
Memo
To: Development Services Department
From: Sallye A. Clark, Planning and Development Assistant ‘,,.e
Date: May 1, 2001
Re: ROW Amendments to Chapter 19 and Chapter 6
Attached please find a copy of the Key Provisions of the Omnibus ROW Amendments to
Chapter 19 and Chapter 6 for your records. The effective date for these provisions is
May 11, 2001 per the City Secretary.
Pc: City Manager
Public Works Director
Amendmentsordinance050101 M.doc
Key Provisionsethe "Omnibus" ROW Amerelents To Chapter 19
April 7, 2001
Code § Subject Comment
19.101 Definitions Minor updating. ("Visibility triangle" not included yet.)
19.102 Sidewalks Provides for City acceptance of sidewalks for maintenance
19.104- Note: "Visibility triangle" and related rules were not included in this draft. They need
19.105 additional work, and they can be covered by a separate ordinance.
19.201(g) Trees, shrubs Clarifies that abutting owners are responsible for street area
19.201(i) Emergency action Extends emergency exemption to new Subchapter F (plans, etc.)
19.202(d) Standard specs Clarifies that City can alter specs to protect trees
19.301 Sidewalks Exempts most City-accepted sidewalks from "must-fix" rules
19.601 Note:All of Subchapters F& G are new. They add permanent rules for use of ROW by
through utilities, telecoms, pipelines, etc. The base text is from April 2000. The redlining shows
end changes from the base text; and these are discussed below.
19.602 Telecom, franchises Deleted (now covered in Subchapter B)
19.603(a) "Impact" on ROW, City may consider a user's failure (or refusal) to participate in
residents, etc. joint planning or common trenches, bores, etc. in determining
impacts (for approval of new construction under 19.604)
19.603(e) Superior law, etc. Deleted (now covered in Subchapter B)
19.604(a) New construction Cross-referencing and cleanup.
19.604(c) Undergrounding Undergrounding still required as a general rule. Exemptions
added for competitive wires and City-requested relocations.
"System plan" exemption maintained, with provision for the BSC
to request—not require--joint plans. See 19.603(a), above.
19.604(j) New pavement Deleted (now covered in Subchapter B)
19.604(m) Common use Requires users to submit planning data. Allows City to request
common use of trenches, bores, etc. See 19.603(a) for
consequences of non-participation. Deletes "must share" and 5-
year "blackball" rules.
19.606 Insurance Conformed to Subchapter B.
19.607 Indemnity Conformed to Subchapter B.
19.608 Interpretation Deleted (now covered in Subchapter B)
19.702 Municipal consents Editorial clean-up
6.411 Sidewalks Cross-referenced and conformed to Chapter 19. Sidewalk
exemption added where official plan calls for no sidewalk.
"t" indicates sections amended following the staff and ROW-user conferences on Friday, April 6.
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Ordinance No. 1677
AN ORDINANCE RELATING TO OBSTRUCTIONS, REGULATED FACILITIES
AND OTHER MATTERS AFFECTING STREET AREAS AND OTHER PUBLIC
PLACES; AMENDING THE CODE OF ORDINANCES OF THE CITY OF WEST
UNIVERSITY PLACE, TEXAS; AND CONTAINING FINDINGS AND PROVISIONS
RELATING TO THE SUBJECT.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY
PLACE:
Section 1. (a) Chapter 19 of the Code of Ordinances of the City of West University
Place, Texas is hereby amended as set out in Appendix A, which is attached and made
a part of this ordinance.
(b) Section 6.411 (relating to sidewalks) of such Code is hereby amended as set out
in Appendix B, which is attached and made a part of this ordinance.
(c) The temporary regulations (relating to users of street areas, municipal consents,
etc.) imposed by Section 3 of Ordinance No. 1626, adopted October 11, 1999, are
extended through and including the Effective Date of this Ordinance. Exception: The
temporary requirement for underground construction does not apply to new or
reconstructed facilities relocated at the request of the City.
Section 2. Each provision of this Ordinance applies from and after the Effective
Date, as specified in Section 6, except that subsection 1(d), above (relating to
temporary regulations), takes effect immediately upon adoption and signature of this
Ordinance. Any violations committed before the Effective Date are governed by the
ordinances in effect immediately before the Effective Date ("Prior Ordinances"). If
permits (including similar approvals) are affected by this Ordinance, this Ordinance
shall generally apply to and govern those applied-for on or after the applicable Effective
Date. However, the Prior Ordinances shall apply to and govern any such permit (and
the activities authorized by such a permit) if: (i) the application for the permit is
completed and filed before the applicable Effective Date, with all plans, information,
fees, etc., (ii) the permit is actually issued on the basis of that application, and (iii) the
permit is not allowed to expire, and is not terminated or revoked, thereafter (although it
may be renewed or extended in the usual manner, if any, allowed for that type of
permit). The Prior Ordinances are continued in effect for the purposes mentioned in
this section.
Section 3. All ordinances and parts of ordinances in conflict with this Ordinance are
repealed to the extent of the conflict only.
Section 4. If any word, phrase, clause, sentence, paragraph, section or other part
of this Ordinance or the application thereof to any person or circumstance, shall ever be
held to be invalid or unconstitutional by any court of competent jurisdiction, neither the
remainder of this Ordinance, nor the application of such word, phrase, clause,
sentence, paragraph, section or other part of this Ordinance to any other persons or
circumstances, shall be affected thereby.
Section 5. The City Council officially finds, determines and declares that a
sufficient written notice of the date, hour, place and subject of each meeting at which
this Ordinance was discussed, considered or acted upon was given in the manner
required by the Texas Open Meetings Act, as amended, and that each such meeting
has been open to the public as required by law at all times during such discussion,
consideration and action. The City Council ratifies, approves and confirms such notices
• •
and the contents and posting thereof.
Section 6. Except as provided above, this Ordinance shall take effect on the tenth
day following publication (the "Effective Date" of this Ordinance), as provided in the City
Charter.
PASSED AND APPROVED on
Councilmembers Voting Aye:
Councilmembers Voting No:
Councilmembers Absent:
Attest: Signed:
City Secretary (Seal) Mayor
Recommended: Reviewed:
City Manager City Attorney
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Appendix A
Amendments to Chapter 19,
Code of Ordinances:
Subchapter A. In General
Sec. 19.101. Definitions.
(a) Certain terms. Unless the context requires a different meaning, the following terms,
when used in this chapter, shall have the meanings indicated below:
(1) "Street amenities" includes all the improvements or facilities mentioned in Section
316.002, Texas Transportation Code (e.g., trees, landscaping, sidewalk cafes,
ornamental entrance markers for subdivisions, features of old buildings, transit
shelters, drinking fountains, benches, other transportation amenities, etc.).
(2) "New roadway" includes all roadways, curbs and gutters constructed new or
substantially reconstructed, but only if they were completed after January 1, 1991.
(3) "Superior law" includes federal and state laws, rules and regulations that apply to and
limit the authority of the City.
(b) Transportation Code. Words and phrases defined in the Texas Transportation Code have
the same meanings when used in this chapter in the same or similar context.
Sec. 19.102. Responsibility for maintenance.
(a)In General. It shall be the responsibility of each person who owns property abutting a
street area to maintain, repair and replace all of that area and all structures, trees and plants found
there, except:
(1) main-traveled, paved roadway areas (not driveways);
(2) facilities and equipment erected by the City, the Metropolitan Transit Authority,
other public agencies, ROW users (under Subchapter F or G), permittees under
this Chapter or utility companies;
(3) City water, sewer or underground drainage facilities or equipment;
(4) improved sidewalks installed or formally accepted for maintenance by the City; or
(4)(5) any structure, tree or plant for which there is a clear indication that: (i) it was
placed in the street area without the consent of the then-owner of the abutting
property, and (ii) no subsequent owner has accepted it or claimed it.
(b) Obtaining Permits, Etc. The abutting owner is responsible for obtaining all necessary
permits and approvals for such maintenance, repair or replacements.
(c)Formal Acceptance of Sidewalks. The Public Works Director is authorized to accept
improved sidewalks for maintenance by the City, but only by filing a formal, written acceptance
document with the City Secretary. Each document must describe the accepted improvements
with reasonable certainty. Both newly-constructed and pre-existing improvements may be
accepted for maintenance, but all accepted improvements must meet minimum criteria
established by the Public Works Director to achieve the following objectives: (i) the improved
sidewalk must function as a new facility and appear to be sound, and (ii) it must be at least 36
inches wide (48 inches if installed after January 1, 1996). The Public Works Director may
modify the criteria, in specific cases, to address site constraints, tree protection, etc.
Sec. 19.103. Procedures, defenses, etc.
APPENDIX A Page A-1
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(a)Permit&License Procedures. The procedures prescribed by this Code for building
permits generally (including issuance, revocation, suspension, transfer, etc.) shall also apply to
permits, municipal consents and licenses under this Chapter. The Building Official may modify
forms, etc., to conform to this Chapter. All actions of the Building Official, Police Chief or
Public Works Director under this Chapter, and all applications for interpretations or variances,
are subject to the authority of the Buildings & Standards Commission in the same manner as
similar, building-related actions under Chapter 6. Exception: Municipal consents under
Subchapter G are subject to review and oversight by the City Council.
(b)Employees; City Activity. In any proceeding to enforce this Chapter for failure to have a
required license, permit or consent, it is an affirmative defense that, at the time of the offense, the
person charged was an actual employee of, and acting under the direct supervision and control of
(i) a person holding all necessary municipal consents, licenses and permits; or (ii) the City.
(c) Compliance Required. It shall be unlawful for any permittee or licensee to fail or refuse
to comply with this Chapter (or the terms of a municipal consent, permit or license issued to that
person) in connection with the work covered by the consent, permit or license.
(d)Interference, Etc. It shall be unlawful for any person to interfere with or obstruct any
work authorized by the City in a street area, public easement or other public place. This
subsection prohibits threats, coercion, duress and all other kinds of interference or obstruction,
whether direct or indirect.
(e)Interpretation &Enforcement. All City officials having the duty to interpret and enforce
this Chapter shall do so in harmony with superior law and franchise ordinances. If any provision
of this Chapter conflicts with, or is preempted by, superior law or a franchise ordinance, such
City officials are authorized to approve deviations from this Chapter, to the extent necessary to
avoid such conflict or preemption and achieve harmony with superior law and franchise
ordinances (this includes the authority to waive or reduce a permit fee that conflicts with superior
law or a franchise ordinance). In all cases, the BSC is authorized to approve such deviations, if
necessary to avoid conflict or preemption and achieve harmony with superior law and franchise
ordinances. In addition to---or in lieu of---applying to the BSC, an interested person may apply
to the City Council for an amendment to this Chapter that would achieve harmony with superior
law and franchise ordinances. Any interested person may comply with a provision of this
Chapter "under protest," without prejudice to its right to claim that the particular provision is in
conflict with, or preempted by, superior law or a franchise ordinance. Example: The person
might comply with a permit requirement "under protest" and later ask the BSC to rule that the
requirement is not applicable.
(f) Chapter 283 Compliance. The Building Official shall allow any certificated
telecommunications providers to submit a"blanket" statement that it is subject to Chapter 283,
Texas Local Government Code and governed by it to the extent of any conflict or inconsistency
with this Chapter. The Building Official shall review any such statement and endorse it to show
the following: (i) the Building Official's determination as to whether Chapter 283 applies to that
provider, and if so, for which type of activities, and (ii) which provisions of this Chapter are in
conflict or inconsistent with Chapter 283 and will not be applied to that provider(e.g., fees,
indemnity, etc.) All City officials shall rely on such endorsements of the Building Official for
purposes of applying this Chapter. The Building Official may require supporting documents and
information from providers and may revise or revoke endorsements from time to time. The
Building Official shall provide standard forms for these purposes.
APPENDIX A Page A-2
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Subchapter B. Work In Street Areas, Etc.
Sec. 19.201. Permits, etc.
(a)Permit Required. Within, over or under any street area, public easement or other public
place, it shall be unlawful for any person to construct, create, maintain, alter, repair or
reconstruct:
(1) any structure (including, for example, a sidewalk, driveway, fence, wall, planter box,
curb, gutter, pavement, utility facility, fire hydrant, pole, watering system, wire,
conduit, box, lighting facility or any other structure),
(2) any hedge,
(3) any excavation affecting a new roadway,
(4) any other excavation greater than eight cubic feet,
(5) any pile or stack of bricks, earth, lumber or other materials (but see special restriction,
below, regarding construction materials and equipment),
(6) any street amenity, or
(7) any similar thing or condition that would be an obstruction or impediment;
unless: (i) a permit covering such work has been issued by the Building Official and is in effect,
and, (ii) if additional approvals are required by Subchapter F or G, such approvals have been
obtained and are in effect.
(b) Signatures&Processing. Permit applications must be signed by the owner of each
affected structure or other item to be located in the street area, public easement or other public
place. If a contractor will perform any of the work, the contractor must also sign. Upon request,
the Building Official shall commence processing of an application signed by the owner alone,
but on condition that each contractor must sign and provide necessary back-up information (e.g,
proof of insurance) before any permit is issued. All persons and entities signing the application
are considered permittees and co-holders of the permit, and all are jointly and severally
responsible for compliance with the permit and applicable regulations, specifications and
procedures. The Building Official shall promptly process each valid and administratively
complete application for a permit. When necessary for a permittee to provide
telecommunications or utility service (or for other good cause shown), a permittee may request
priority handling. In such cases, the Building Official shall make every reasonable effort to not
delay or unduly burden that permittee in the timely conduct of its business.
(c)Street Amenities. The Building Official shall not issue a permit for a street amenity
unless the Building Official or the City Manager makes the findings required by Section
316.003, Texas Transportation Code. Each such official is independently designated to make
such findings. Street amenities mentioned in subdivisions (1) and (5) of Section 2 of that statute
may also be established and maintained with City funds, materials, equipment and personnel, if
approved by the City Council and if the required findings are made.
(d)Financial Security Required. The Building Official shall not issue a permit under this
Chapter unless at least one permittee provides financial security as required by this section.
Exceptions: no financial security under this Chapter is required for:
(1) minor repairs such as leveling small areas (less than four square feet), sealing,
filling cracks or re-affixing loose pieces, not affecting any new roadway,
(2) work done under a contract with the City secured by a performance bond to the
extent required by state law,
(3) small excavations (less than 27 cubic feet) which are immediately filled and
which do not affect any new roadway, or
(4) work that has no effect, or only a minimal effect, on public areas or other
structures or equipment not owned by the permittee, as determined by the Public
Works Director.
APPENDIX A Page A-3
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(e) Type Of Financial Security. Financial security must be a surety bond or a written
guarantee secured by a deposit of cash (or cash equivalent), in the amount prescribed below and
in a form approved by the Building Official. Exception: The Building Official may accept an
unsecured written guarantee from a permittee which owns real property or other fixed assets in
Harris County having an aggregate value of$10,000,000 or more according to the most recent
County or City tax roll.
(1) The amount of financial security shall be at least the construction cost of restoring
both the street area and any affected structures not owned by the permittee, plus
25% for design, contingencies, inspections, testing, etc., all as estimated by the
Building Official. However, the minimum amount of financial security is $50,000
for work affecting any new roadway, or $10,000 for other work.
(2) The conditions of the bond or guarantee shall be that the permittee will: (i)
perform the work in accordance with applicable regulations, specifications and
procedures, (ii) comply with the permit, including the approved plans and
specifications„ and (iii) repair, replace and restore any and all defects in, or
damages to, the work discovered within one year from and after the date that the
work is officially accepted by the Building Official, which defects result from,
arise out of or relate to any defects in materials furnished by, or workmanship of,
the permittee.
(f)Insurance and Indemnity. The Building Official shall not issue a permit under this
Chapter unless each permittee provides proof of comprehensive general liability and automobile
liability insurance and a written indemnity, as provided below. Exceptions: (i) The Building
Official may waive or reduce this requirement for small projects, if it is shown that the risk of
loss is minimal. (ii) See exception for self-insurance, below.
(1) The insurance must include limits of liability, types of coverage (including
explosion, underground, collapse, completed operations, etc.), endorsements
(additional insureds, waiver of subrogation, "per project" limits, etc.) and other
features that are equivalent to (or better than) those provided by City contractors
performing similar activities in street areas. In lieu of such insurance, in whole or
in part, the Building Official may accept evidence of self-insurance. The Building
Official must require the permittee to submit either a certificate or other official
determination of self-insurance issued by the appropriate state agency, or other
proof of self-insurance satisfactory to the Building Official.
(2) The written indemnity shall be in a form prescribed by the Building Official and
equivalent to those provided by City contractors performing similar activities in
street areas. Exception: No indemnity is required for activities covered by an
existing indemnity under Chapter 283, Texas Local Government Code or a
franchise ordinance.
(g)Presumption Of Maintaining. When a structure, hedge, tree, shrub, plant, excavation or
other obstruction or impediment is: (i) located within, over or under a street area, public
easement or other public place, and (ii) has no obvious public or utility use, and no obvious use
by a permittee, it is presumed to be maintained by each person who controls the closest abutting
area.
(h)Franchisees, etc. In any proceeding to enforce this section, it is an affirmative defense
that, at the time of the offense: (i) the person charged was engaged in work authorized under a
City franchise ordinance (or by superior law that preempts the requirement for a franchise
ordinance), (ii) notice of the work was given to the Public Works Director in advance, (iii) the
work had no effect, or only a minimal effect, on public areas or facilities, as determined by the
Public Works Director, and (iv) there was complete compliance with applicable regulations,
specifications and procedures, as promulgated by the Public Works Director.
APPENDIX A Page A-4
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(i)Emergency action. In any proceeding to enforce this section or Section 19.602(b), it is an
affirmative defense that all of the following circumstances are present: (i)the person charged was
engaged in work urgently necessary to respond to an emergency and to protect the health or
safety of the public, and (ii) full compliance with this Chapter(notices, financial security,
insurance, indemnity, plans, specifications, permits, reports, certifications, etc.) was achieved as
fully as practicable and as rapidly as practicable after the beginning of the emergency.
(j,)Protection of new roadways. It shall be unlawful for any person to excavate, cut through,
destroy or damage a new roadway without a special permit to do so signed by the Public Works
Director. The Public Works Director may only sign such permits upon a showing of: (i) clear
need and (ii) no reasonable alternative. In all cases, the new roadway must be restored to equal
or better appearance and structural condition. For this purpose, patching or piecemeal restoration
is not allowed. Instead, all work must begin and end at logical lines of demarcation established
by the Public Works Director(typically, these lines would be along pre-existing construction
joints). In addition, all work to restore new roadways must comply with the same standards and
procedures observed by the City for new construction, including, but not limited to, preparation
of plans and specifications by a registered professional engineer, full-time inspection by an
employee or agent of the engineer, daily reports to the Public Works Director, tree protection,
access protection, traffic control, lab tests of concrete and similar items, certification by a
registered professional engineer that the work is completed in accordance with City-approved
plans and specifications, etc. Exception: The Public Works Director may waive the requirements
for a professional engineer in those circumstances where: (i) standard City specifications are
used, and (ii) equivalent quality-control measures are observed.
(k) Construction materials and equipment. The Building Official shall not issue a permit
under this Chapter authorizing the use of any street area for materials or equipment related to
construction on private property, unless the use is authorized by a special exception issued by the
BSC. The BSC may only issue such a special exception upon a showing of hardship and a clear
need.
Sec. 19.202. Specifications, etc.
(a)Application. This section applies to all work for which a permit is required by this
subchapter.
(b) Standard Plans&Specifications; Grades. The Public Works Director or the Building
Official may establish: (i) standard plans and specifications for roadways, sidewalks, driveways,
curbs, gutters and other structures and (ii)the grade, elevation and other special features for a
particular structure. Any plans, specifications, grades and elevations shall reflect: (i) recognized
public works design principles, and (ii) legal requirements, including access for persons with
disabilities. Additional requirements may also apply to regulated facilities under Subchapter F
and G.
(c) Compliance Required. Each permittee shall cause the work to comply with: (i) all
applicable standard procedures, plans and specifications for the type of work authorized, with
only those exceptions granted by the Building Official in writing, (ii) any grade, elevation or
special feature mentioned in or attached to the permit, and (iii) all applicable regulations,
including, but not limited to, the provisions of this Chapter and Chapter 6 of this Code.
(d)Exceptions From Standards. For good cause shown, the Building Official may issue a
permit with exceptions to standard plans and specifications(e.g., a spe • . d driveway
milk), subject to the special rules, above, for new roadways. (Note: See Chapter 22 of this
Code which authorizes variances and liberal interpretations to protect or preserve large trees: it
applies to actions of the Building Official under this section.) Unless the permit clearly indicates
otherwise, the City shall not be responsible for repairing or replacing any non-standard items
(such as, for example, a special finish on a driveway or sidewalk), the City may p p y ), t y ay require the
APPENDIX A Page A-5
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abutting owner to pay the cost of any such repair or replacement, regardless of whether the work
is made necessary by the City or would otherwise be maintained by the City. As a condition to a
permit with exceptions, the Building Official may require the abutting owner to record an
appropriate notice in the real property records.
(e) Standard Procedures. Each permittee shall, in accordance with standard procedures set
by the Building Official: (i) notify the Building Official before the beginning of each phase of the
work, (ii) provide adequate opportunity for the Building Official to examine the work
immediately before any concrete is poured and immediately before any part of the work is
otherwise covered up, (iii) cause the work to be done in a good and workmanlike manner by
trained and skilled persons, (iv) minimize disruption and inconvenience to other users of the
same public areas, (v) remove, reconstruct and correct any work that does not comply with this
section, (vi) clean and restore the affected areas and (vii) properly dispose of all debris, trash,
rubbish, etc.
(f)Standard street structures (PWSF's). The standard design of a streetlight and a street
structure, as set out in Appendix B of Ordinance No. 1650, adopted July 24, 2000, is formally
adopted and approved for joint use with a PWSF, as authorized by the PWSF Schedule of the
Zoning Ordinance.
Subchapter C. Sidewalks
Sec. 19.301. Sidewalks required.
(a)In General. Persons are required to construct sidewalks in the circumstances required by
Chapter 6. In addition, the City Council has the authority to order certain work on sidewalks in
accordance with this Chapter. Exception: This subchapter does not apply to sidewalks that have
been formally accepted by the City for maintenance (see Section 19.102, above), unless they are
damaged or destroyed by an act or omission of: (i) the abutting owner or other person in control
of the abutting property, (ii) a tenant, invitee, contractor, officer, agent, employee or other person
acting with the consent or approval of either the abutting owner or a person in control of the
abutting property.
(b) Ordering Work. If, after a public hearing, the City Council finds it necessary that side-
walks be constructed, reconstructed, repaired or brought to grade in the street area abutting the
side, front or rear of any property in the City, the City Council may: (i) designate the locations,
and (ii) order that the work be done within a specified time period.
(c)Notice To Owners. If the City Council orders such work, the Building Official shall
notify the owners of the abutting property. The notice shall include a copy of the order and
specifications for the work promulgated by the Building Official or Public Works Director.
(d)Performing The Work. Each owner who receives such a notice shall have the specified
time period in which to cause the work to be done. If the work has not been done when the time
period expires, the City may: (i) cause the work to be done (or completed, in case it is partially
done) and (ii) determine the reasonable cost and assess it to the abutting owner. The work may
be done (or completed) by City forces or by a City contractor.
(e) Costs; Lien. The City Council's determination of cost is conclusive. The cost of the work
shall: (i) be billed to the abutting owner, (ii) be payable, with interest, at the City's finance office,
(iii) shall bear legal interest from the date payment is made for the work, and (iv) shall be a lien
against abutting property.
(f)Recorded Statement. The Mayor may make a statement, under oath, showing the cost of
such work done in a street area abutting a parcel of property. The statement may include more
than one parcel. The statement shall give the name of each owner of abutting property (as known
to the Mayor) and a description of each parcel sufficient to identify it. No mistake of name of the
owner or description of the parcel shall vitiate or defeat any claim for payment or lien. The
APPENDIX A Page A-6
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statement shall be filed for record in the office of the county clerk. When filed for record, it
shall: (i) fix the amount stated as a preferred lien against each respective parcel of property,
superior to all other liens, claims or titles except lawful taxes, (ii) constitute a personal demand
against the owner of each parcel, and (iii) be prima facie evidence that all necessary preliminary
things have been done to establish each lien and the amount thereof
(g)Er forcement. Any such lien may be foreclosed by the institution of suit in any court of
competent jurisdiction in the county. If the claim is placed in the hands of an attorney for
collection, or if suit is filed thereon, the costs thereof including a reasonable attorney's fee, shall
be added thereto.
Sec. 19.302. Change of street, sidewalk grade or line.
This section applies to projects where the City changes or alters the lines or grades of streets
or sidewalks. The City may make such changes without liability to abutting owners or others on
the part of the City by reason of said change. If the line or grade of a sidewalk is changed, but is
in good condition and does not, in the opinion of the Building Official require entire
reconstruction, the owner or owners of the abutting property may be given notice to: (i) break
said sidewalk back to a point fixed by the Building Official, and (ii) remove the broken portion
and reconstruct said portion on the line and grade determined by the Building Official, at the cost
of said owner. This work may be required, and the cost may be assessed, in the same manner as
other work on sidewalks.
Subchapter D. Street Rental Charge
Sec. 19.401. Imposed; amount; when payable.
Upon the first day of February of each year, every person occupying or using the streets, high-
ways, easements, alleys, parks or other public places in the City with gas mains, pipes and other
fixtures for the distribution of gas shall, as a condition to such further occupancy, pay to the City
annually for such privilege, a rental equal to three percent of the gross receipts received by such
person from gas sold and delivered to residential and commercial consumers at residential and
commercial rates within the City for the preceding calendar year. Amounts paid under this
section shall be credited against amounts, if any, paid as ROW fees for a municipal consent
under Subchapter G.
Sec. 19.402. Report of gross receipts of payor.
All persons using or maintaining any gas pipe lines, pipes and other fixtures in any of the
streets, highways, easements, alleys, parks or other places within the corporate limits of the City
shall, on the first day of February of each year, file with the City Secretary a sworn report
showing the gross receipts from gas sold and delivered to residential and commercial consumers
at residential and commercial rates by such persons within the corporate limits of the City for the
preceding year ending the last day of December.
Sec. 19.403. Examinations of books and records of payor.
The City Council may, when it may see fit, have the books and records of any person
rendering the statement required in this subchapter examined by a representative of the City to
ascertain whether such statement is accurate, but nothing in this section shall be construed to
prevent the City from ascertaining the facts by any other method.
APPENDIX A Page A-7
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Sec. 19.404. Receipt for payment.
Upon receipt of the rental charge imposed by this article by the City, the City Secretary shall
deliver to the person paying the same a receipt therefor, which receipt shall authorize such person
to use and occupy the streets, highways, easements, alleys, parks and other public ways of the
City in carrying on his business for twelve months from January first of such year.
Sec. 19.405. Charge additional to taxes.
The rental charge imposed by this article is not charged as a tax but is made for the privilege
now enjoyed by the persons upon whom it is imposed of using the streets, easements, alleys and
other public ways of the City in the conduct of their business, and such charge is additional to all
ad valorem and franchise taxes and to all taxes of every nature whatsoever against such persons.
Sec. 19.406. Other laws and ordinances.
Nothing in this article is intended to relieve any person of any condition, restriction or
requirement imposed by the law, this Code or other ordinance of the City.
Sec. 19.407. Not a franchise; cancellation.
This subchapter does not grant a franchise to any utility or person to use the streets,
easements, alleys and other public ways and shall never be so construed by the courts or
otherwise, and the City reserves the right to cancel the privileges granted hereunder and refund
the unearned rentals paid to the City.
Sec. 19.408. Restrictions, regulations, etc.
The City hereby reserves the right to put into effect at any time other restrictions and
regulations as to the erection and maintenance of gas mains, pipes and other appurtenances in the
streets, easements, alleys and other public ways of the City and from time to time to require such
gas mains, pipes and other property, equipment and fixtures as it may deem proper to be removed
on such terms as the City may deem proper.
Subchapter E. Building Moving
Sec. 19.501. Definitions.
In this subchapter:
(1) "Building" has the same meaning as in the zoning ordinance, except that: (i) a part of
a building is included in this definition, and (ii) a small portable building, as defined
in Chapter 6 of this Code, is excluded from this definition. Disassembling or altering
a building so that it can be moved does not remove it from this definition, and the
parts are considered the same as the whole building for purposes of this article.
(2) "Licensee" means any person holding a valid, unexpired license under this subchapter.
Sec. 19.502. License and permit required.
(a)In General. It shall be unlawful for any person to move a building, or to attempt to move
a building, upon or over any street area, unless:
(1) a licensee controls such activity; and
(2) a valid building moving permit issued to such licensee authorizes the move; and
(3) all conditions in the permit are complied with.
(b)Inside to Outside Only. Permits may be issued only for moving buildings from inside the
City to outside the City.
(c) Compliance Required. It shall be unlawful for any person to fail or refuse to comply
strictly with the provisions of this chapter in connection with the moving of any building.
APPENDIX A Page A-8
• •
Sec. 19.503. Equipment.
(a) Generally. No person shall move or attempt to move any building by means of any
equipment, unless:
(1) the equipment has been registered with the Building Official;
(2) the Building Official has issued a certificate of compliance for such equipment; and
(3) the equipment is owned or leased (long-term) by the licensee moving the building, is
being purchased by that licensee, or is on loan from another licensee.
(b)Marking. All moving equipment shall be plainly marked in letters not less than four
inches in height, showing the name of the licensee who owns it, leases it or is purchasing it.
(c)Lights. Amber or red lights at least four inches in diameter, with two units to each side on
the back, not less than three feet nor more than six feet above the ground, with one on each side
in the center of the load, shall be required when the building is being moved. There shall be
comparable lights of amber color across the front of the load, and these lights shall be in
operation at all times while the building is upon a street area.
(d)Barricades, warning lights, etc. Barricades, warning lights and other danger warning
devices shall be placed wherever any building is stopped on any street area for any period of time
in excess of ten minutes.
Sec. 19.504. Additional safety equipment.
The Building Official is authorized to require a licensee to use additional safety equipment
while any building is within a street areas.
Sec. 19.505. Establishment of times, routes, etc.
(a)Permit Conditions. The Building Official may establish and direct, as conditions of a
permit: (i) the earliest and latest times when the house moving shall start and the time within
which it shall be completed, (ii) the routes over which buildings may be moved, (iii) whether an
observer designated by the Building Official must be present, and (iv) other reasonable and
necessary regulations and conditions.
(b)Notice Of Start. No move shall begin until the building is loaded on the equipment, an
inspection of the loaded rig by the Building Official has been requested and the Building Official
has been given at least twelve hours' advance notice of the exact time when the move is planned
to start. The licensee may give notice of cancellation of such a scheduled start. If such notice is
given not less than four(4) hours prior to the scheduled start, no additional fee is required for the
rescheduling of a move.
(c)Route Changes. Route changes may be authorized by the Building Official or his
authorized agent.
(d)Maximum Sizes. In no event may the height of a loaded building exceed 14.5 feet (except
that a central peak may extend to a height not to exceed 17.5 feet), nor may the width exceed
thirty feet. The Building Official may impose smaller size limits, especially to minimize
disruption to trees, public facilities, use of the street areas or other activities or facilities. Height
and width are determined by measuring the building as loaded on the equipment, including any
vehicle, braces or wheels that may be used for the move.
Sec. 19.506. Maximum time limit.
No move may use the street areas for a total period of time in excess of twelve hours.
Sec. 19.507. Inspection of route prior to moving.
All routes over which a building is to be moved shall be physically inspected prior to each
move by the licensee and may be inspected by the Building Official and other persons.
APPENDIX A Page A-9
• •
Sec. 19.508. Escort.
Unless an exemption is approved by the Chief of Police, every building being moved upon or
over any street area must be accompanied by a police officer of the City, except when it is
temporarily stopped and marked as provided for herein. The licensee shall be responsible for
scheduling the move and the availability of the police officer with the Chief of Police.
Sec. 19.509. Authority to stop, etc.
The police escort and the Building Official's designated observer are each empowered to stop
any move at any time to inspect the rigging, trucks and lighting and trees, power lines or other
obstructions. The observer is authorized to aid and assist the police escort in traffic control.
Sec. 19.510. Continuous motion, etc.
(a)Motion. During the entire time that a building is occupying the street area, or any portion
thereof, the licensee shall make every reasonable effort to keep it continuously in motion toward
its destination and, insofar as practical, he shall not allow the work of moving to stop during such
time.
(b)Not Unattended. No building shall be left unattended on any street area.
(c)Removal; Costs. When a building is left on a public street area, and, in the opinion of the
Chief of Police, the mover is not proceeding with all diligence, or appears to have no reasonable
likelihood of successfully moving the building from the street area, the Chief of Police shall have
authority to remove or cause the removal of such building, and all costs pertaining to such
removal shall be paid by the licensee.
Sec. 19.511. Utilities.
(a)Disconnecting utilities. It shall be unlawful for any licensee to disconnect any utility
connection or facility without the consent of the utility serving such connection.
(b)Removing or destroying poles or wires. It shall be unlawful for any licensee to remove,
tear down or destroy any pole, street name signs, traffic sign, utility facility, wire or other
property belonging to the City or to any franchisee of the City without the consent of the owner.
Sec. 19.512. Trees.
It shall be unlawful for any licensee engaged in moving a building to cut down any tree or to
cut any branches therefrom without prior approval of the Building Official. This approval must
be obtained in addition to any tree permit required by another ordinance of the City and in
addition to the approval of any other person who may own the tree in question (in the case of
trees outside the street area).
Sec. 19.513. Removal of equipment and debris.
(a)In General. It shall be the e dut of the licensee, at the times required duty s e wired b this section:
q by
(1) to remove and properly dispose of all equipment, slab, porches, beams, rubble, steps
and other debris resulting from the moving of any building; and
(2) to grade the surface of all ground occupied by the building moved or otherwise
affected by the move, such grading to be accomplished so that water will not
accumulate and the ground can be mowed with ordinary domestic lawnmowing
equipment.
(b) Time To Comply. The removal, disposal and grading shall be commenced by the licensee
as soon as practicable after the building is moved and must be prosecuted diligently to
completion by the licensee. In all cases, the licensee must complete the removal, disposal and
grading on or before the tenth day following the day the building is moved. It is an affirmative
APPENDIX A Page A-10
•
defense to prosecution for a delay in completion that: (i) inclement weather prevented the
completion and (ii) diligence was used to complete the work at the earliest practicable time.
(c)Affirmative Defense. It is an affirmative defense to any prosecution under this section that
another responsible person has signed and filed with the Building Official a written document
(on a form prescribed by the Building Official) assuming the licensee's duties under this section
with respect to the violation alleged in the prosecution.
Sec. 19.514. Removal of debris, trash, etc.
It shall be the duty of the licensee to remove and properly dispose of all trash or debris in any
street area resulting from the moving of any building, and such work shall be done within four
hours following the time that the move is completed.
Sec. 19.515. Completion; repairs.
(a)Notice Of Completion. Within 24 hours following completion of each move, the licensee
shall notify the Building Official of such fact. The Building Official shall cause an inspection to
be made of the route of moving. If the Building Official finds that the move has caused damage
to the street areas, curbs, gutters, sidewalks or other public property, the Building Official shall
notify the licensee, specifying the damage. The licensee shall proceed within two working days
from the date of such notification to begin the work of repairing the damage, which work shall be
promptly done and completed under the supervision of and to the entire and complete satisfaction
of the Building Official.
(b)Repairs By City; Certificates. If the licensee fails to begin work within two working days,
or fails to continuously proceed therewith promptly and expeditiously, or fails to complete it to
the entire and complete satisfaction of the Building Official, the Building Official may cause the
damage to be repaired on behalf of the City. In such case, the Building Official shall make and
execute a certificate, setting out the relevant facts pertaining to the transaction, and shall certify
therein the amount of damage sustained by the City and shall file the certificate with the City
Manager. The licensee, by accepting the permit provided for in this article, does thereby
constitute and appoint the Building Official as his agent and representative with full power and
authority to bind the licensee and his surety to prepare and file such certificate. Upon the filing
of the certificate, the amount stated therein shall be and become a sum, liquidated and certain,
owing to the City by the licensee and the surety on his bond and, in any suit involving such sum,
the facts recited in the certificate and the amount of damage certified therein shall in all things be
presumed to be true and binding upon the licensee and his surety in the absence of clear,
convincing and unmistakable proof that the Building Official has acted arbitrarily and without
any evidence whatsoever of such facts.
(c) City Option. Notwithstanding the foregoing provisions, the City may, as an alternative,
and at the City's option, make or cause to be made repairs to its property damaged by the licensee
and the licensee shall be obligated to pay the City reasonable costs of such repairs.
Sec. 19.516. Completion certificate.
The Building Official shall issue a completion certificate after the move has been completed,
all inspections are made and approval has been given by the Building Official. Such certificate
shall not be issued until repairs or replacements have been made for any public property damaged
in such move and the removal, disposal and grading work required by this chapter have been
completed.
APPENDIX A Page A-11
• •
Sec. 19.517. Business license.
(a) Generally. A person desiring to engage in the business of building moving must make
application for a license to the Building Official together with a bond, proof of insurance and the
required fee. Fees are set by separate ordinance and are not refundable.
(b)Inspection. Prior to the issuance of a license (other than a renewal license), the Building
Official or his duly authorized agent shall inspect the moving equipment intended to be used by
the applicant, and, if such equipment appears safe, adequate and in compliance with this chapter,
a certificate shall be issued for display upon or within each approved tractor or towing unit.
(c)Issuance. The Building Official shall examine the application for a license under this
article and make such investigation as may be necessary and if, in his opinion, based upon such
application and investigation, the applicant is entitled to a license, he shall issue to the applicant
a license upon the execution and delivery of the bond and insurance documents required by this
article.
(d)Expiration; Renewal. Each license (and each renewal) is valid only during a calendar
year. Prior to expiration, a license in good standing may be renewed, if the licensee pays the
required fee and provides proof that the bond and insurance will continue in effect. If a license is
under suspension, the license may not be renewed until the suspension period has ended, and
there is no proration of the renewal fee.
(e)Bond. Before a license is issued, the licensee must file with the City a bond signed by the
licensee as principal and by a good and sufficient corporate surety approved by the Building
Official. The amount of the bond must be at least $10,000, or such greater amount as is set by
other ordinance. The condition of the bond shall be that the licensee will engage in the business
of building moving within the City in strict accordance with the terms of this chapter, and will
pay to the City any and all damages to street areas, curbs, gutters, water lines, traffic signals and
signs, fire hydrants and other public property occasioned in any manner by the licensee's moving
of buildings or related items. Each such bond shall contain a provision that it shall not be
exhausted until a recovery or recoveries have been obtained by the City totaling the full amount
of the bond.
(f)Insurance. In addition to the requirement for a bond, each licensee must carry general
liability insurance and motor vehicle liability insurance with limits of at least $500,000 per
person and $100,000 for property damage, with an overall limit per occurrence of at least
$1,000,000. In addition, the licensee must have worker's compensation and employer's liability
coverage to at least the extent required by state law. The Building Official shall prescribe
requirements for the carriers, endorsements and coverages of such insurance so that they are
substantially similar to the insurance requirements on City construction contracts. The Building
Official shall prescribe the documents which a licensee must submit to prove the existence of
such insurance.
Sec. 19.518. Moving permit.
A licensee desiring a permit shall, no later than the third working day before the move, apply
to the City building inspection office, showing the present location of the building, the proposed
route of moving, the size and type of construction and such other information as the Building
Official may require. The fee is set by separate ordinance.
Subchapter F. Regulated Facilities
Sec. 19.601. Definitions.
In this subchapter and in Subchapter G:
(1) "Affiliate" means a person who controls, is controlled by, or is under common control
with a user.
APPENDIX A Page A-12
• •
(2) "Certificated telecommunications provider" means the same as in Section 283.002(2),
Texas Local Government Code [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].
(3) "Non-certificated telecommunications provider" means a person, excluding any
certificated telecommunications provider, that delivers telecommunications service
within the City to person(s) by way of facilities that are placed in, on or over ROW.
To the extent allowed by law, this also includes a person that does not deliver
telecommunications service within the City, but who places, constructs or maintains
facilities within ROW for the delivering of telecommunications service outside the
City, except a certificated telecommunications provider.
(4) "Regulated facilities" means any and all of the wires, cables, fibers, duct spaces,
manholes, pipes, poles, conduits, underground and overhead passageways and other
equipment, structures, plant and appurtenances and all associated physical equipment
placed in, on or under ROW, other than: (i) facilities owned by the City or other
governmental agencies authorized by the City, and (ii) facilities owned by abutting
property owners such as driveways, sidewalks, landscaping, utility"drops," "taps" or
laterals and similar facilities serving only their property.
(5) "ROW" means the same as in the Section 283.002(6), Texas Local Government Code
[i.e., 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.]
(6) "ROW work" means to place, install, construct, maintain, alter, operate, inspect,
connect, or disconnect any regulated facility.
(7) "Telecommunications service" means the providing or offering to provide
transmissions between or among points identified by the user of the service, of
information of the user's choosing, including voice, video or data, without change in
content of the information as sent and received, if the transmissions are accomplished
through regulated facilities, expressly excluding cable services or open video systems
as defined in Title VI of the Communications Act of 1934, as amended, and any
service that may only be offered by certificated telecommunications providers.
(8) "User" means a person owning, controlling, using or placing regulated facilities in, on
or over ROW in the City.
Sec. 19.602. Authorization required.
(a)In general. All the following requirements must be met for each regulated facility, as
applicable:
(1) There must be City Council authorization in effect for the regulated facility, in the
form of a franchise, right-of-way agreement, municipal consent under Subchapter
G or similar authorization. Exception: This requirement does not apply to
telecommunications facilities, to the extent the franchise requirement is
preempted by Chapter 283, Texas Local Government Code.
(2) There must be a construction permit in effect for the regulated facility, in those
circumstances described in Subchapter B.
(3) All related ROW work must comply with this chapter subcha-pter and with any
applicable City Council authorization.
(4) The regulated facility must comply with this chapter subchapter and with any
applicable City Council authorization.
APPENDIX A Page A-13
•
• •
(5) Each user of the regulated facility must comply with the applicable provision of
this subchapter.
(b) Compliance required It shall be unlawful for any person to place, install, construct,
maintain, alter, operate, control, use, rent or lease (as owner or tenant), control or own any
regulated facility, if: (i) a requirement imposed by this chapter section applies to that facility, or
to that person, but (ii) the requirement is not met or satisfied.
subsection (b), ahove, that:
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Sections 19.603, 16.604, 19.605 and 19.606 of this chapter.
Sec. 19.603. Administration and enforcement.
(a)In general. The Public Works Director shall administer and enforce this subchapter,
subject to the jurisdiction of the BSC as provided for in this chapter. Under this subchapter
Chapter:
(1) Determinations of reasonableness, feasibility and practicality shall take into
account certain user-specific factors, in addition to other police power
considerations, if a user requests that they be considered and provides the requisite
supporting information. Such user-specific factors are: (i) possible service
interruptions, (ii) possible accidents, (iii) possible delays in construction or
availability of facilities, and (iv) unreasonable technical or economic burdens.
(2) Impacts upon ROW, residents and property are measured in terms of: (i) access
requirements, (ii) disruption or displacement of other facilities or activities, (iii)
visual intrusiveness or other aesthetic degradations, (iv) risk of physical impact
and (v) other external effects including and reduction in property values.
These determinations may take into account any: (i) unreasonable failure or refusal of a user to
submit and coordinate its system plans when requested by the BSC and any (ii) unreasonable
failure or refusal to participate in a common excavation, bore, etc., or allow others to do so, all as
more fully described in this subchapter.
(b)Information. Each user shall report information related to the use of the ROW in the form
and manner reasonabl y p rescribed by the Public Works Director, including but not limited to:
(1) information relating to the user's identity, address, telephone numbers, authorized
personnel, 24-hour contact persons, regulated facilities and ROW work, at
reasonable times specified by the Public Works Director, which information shall
thereafter be kept current by the user;
(2) "as built" drawings, in a format reasonably prescribed by the Director, and as
allowed by law, within sixty days of completion of any section of new or
reconstructed regulated facilities, and when otherwise requested by the Public
Works Director; provided, however, the Director may accept reasonable
alternatives to "as built" drawings if(i) the alternatives provide adequate
information about the regulated facilities and (ii) the user agrees, at its own cost,
APPENDIX A Page A-14
• •
to locate the facilities in the field and provide necessary location data to the
Director, including depths, upon request;
(3) written notice at least 15 days before any transfer of control or material change in
operations; and
(4) within 30 days following a written request, copies of-public petitions,
applications, written communications and reports submitted by the user to federal
or state regulatory agencies, but only if they relate to use of the ROW, and are
reasonably identified.
(c)Reimbursement of costs. If a user fails to perform any work required by this subchapter
(for example, work to move or remove facilities or to restore the ROW) within the prescribed
time(or within a reasonable time, if no time is prescribed), the City may perform the work or
have it performed. Except in case of an imminent threat to public health or safety, the City shall
give the user a final notice allowing the user at least five days to perform the work before the
City does it. The user shall reimburse the City for the costs so incurred within 30 days from the
date the user receives an invoice and a written determination by the Public Works Director that
the amounts are correct and owed by the user. The City incurs no liability by taking such action.
Reimbursement is not a bar to other enforcement action or to prosecution for any violation.
(d) Continuing duties. The provisions of this section shall be continuing and shall survive the
termination of any consent or other authorization for a period of one year.•- •s •• : . , ;; - • • " - : '" -. - . • - : - - • : •: . • ••• -. . ••••- .:• := • • • • . • • • •• - - • . - -, • : - - : . - - • : • • •
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Sec. 19.604. General regulations.
(a)New or reconstructed facilities. A user must deliver to the City construction plans and
maps showing the location and proposed routing of new (or reconstructed) regulated facilities at
least five business days before beginning construction or reconstruction. A user may not
undertake construction except in accordance with complete plans and specifications approved in
writing by the Public Works Director. (Note: Other permits and approvals are usually required.
See, e.g., Subchapters B and G.) The Director shall either grant such approval or deny it based
upon: (i) other provisions of this subchapter or other applicable regulations, (ii) sound
engineering practice, (iii) unnecessary or unreasonable impact upon surrounding area, (iv)
availability of an alternative location or routing or (v) a combination of these factors. For this
- - =:. _ - • : -•
APPENDIX A Page A-15
• •
(b) General standards. All ROW work must be performed:
(1) in accordance with this chapter and other applicable regulations;
(2) in a manner that minimizes interference with public and private property,
following all reasonable construction directions given by City officials to
minimize any such interference; and
(3) only after the required authorizations, permits and approvals are obtained (see
above) and the user has given the Public Works Director at least 48 hours advance
notice of the start of work and the specific location of the work.
(c) Underground requirements. All new or reconstructed regulated facilities shall be located
at or below ground level. Exceptions:
(1) Existing above-ground facilities may be maintained in their present locations, but
not substantially expanded or physically enlarged, until such time that they are
required to be replaced.
(2) Ventilators, connections to above-ground facilities, etc. may be located above
ground, if the Public Works Director determines that they will have insignificant
impact.
(3) Above-ground facilities may be authorized by a special exception issued by the
BSC. The BSC may only issue such a special exception if it finds that the user
has made a compelling demonstration that: (i) underground placement is not
reasonable or not feasible, (ii) underground construction is not required of other
similarly-situated users and (iii) above-ground regulated facilities will cause a
lower impact upon ROW and nearby residents and properties than other
reasonable alternatives.
(4) Above-ground facilities may be authorized by a system plan approved by the
BSC. The BSC may only approve such a plan if it finds that: (i) proposed facility
placements (both above ground and below ground) are reasonable and feasible,
(ii) similar placements are, or probably would be, required of other similarly-
situated users and (iii) the plan will produce an aggregate reduction in impacts
upon ROW, nearby residents and properties, as compared to the pre-existing
placements of facilities. The BSC may require request that two or more users
apply for system plans at the same time and coordinate their provisions, if the
users share (or could share) facilities such as, for example, conduits, excavations
or poles.
(5) Low-impact "standard street structures" which comply with the PWSF Schedule
of the zoning ordinance do not have to be located underground to the extent
above-ground placement is approved under that schedule.
(6) New wires, conduits and related facilities designed to provide local service (e.g.,
CATV) to substantially all premises in the City may be located above ground at
those locations where there are pre-existing, above-ground facilities of another
user providing the same type of local service, but subject to possible relocation
under applicable regulations.
PP
(7) Other regulated facilities (e.g., gas meters) which the Public Works Director
determines, by their very nature, should only be located above ground, do not
have to be located underground, to that extent.
(8) Above-ground facilities moved or altered at the request of the City under
subsection (f), (g) or (h), below, do not have to be located underground, unless
otherwise required by a system plan.
APPENDIX A Page A-16
. • •
Even if a special exception is issued, the BSC , after notice and hearing, may require any above-
ground facilities to be relocated underground upon a change in circumstance(such as, for
example, the relocation of other facilities, or the availability of underground conduit space),
unless otherwise prescribed by a system plan approved by the BSC. Underground work must use
trenchless technology, unless otherwise authorized by the Public Works Director based upon
sound engineering principles and the likelihood of disruption to other facilities and activities.
(d)Restoration. When any ROW work is completed, or when no substantial work is done at
the site of any ROW work for more than three consecutive business days, the user shall,
beginning within two business days thereafter, restore the ROW as follows:
(1) use properly-compacted cement-stabilized material for all backfill and provide a
reasonable opportunity for City inspection before the backfill is covered, unless
the Public Works Director approves a different backfill method;
(2) replace and properly relay and repair the pavement, curb, sidewalk and gutter
(including the surface and base), other structures, any irrigation system and any
landscape treatment that may have been affected by the ROW work;
(3) return the ROW and all structures therein to their pre-existing condition as nearly
as practicable; and
(4) otherwise comply with applicable regulations.
Such restoration must be completed as soon as practicable. Should the Public Works Director
determine, within one year from the date of any restoration work, that the work was ineffective,
defective in materials or workmanship or otherwise not in accordance with City standards or
other applicable regulations, the user shall again restore the ROW as required by this section.
Such work must begin within two business days following receipt of written notice and must be
completed as soon as practicable thereafter.
(f)Emergency action. If the Public Works Director, Fire Chief, City Manager or other
appropriate City official declares an emergency with regard to the health and safety of the
citizens and requests the removal, repair or alteration of regulated facilities, a user shall remove,
repair or alter the user's regulated facilities, at its own expense, as soon as reasonably possible
after receiving notice of the request. The user and the City shall cooperate to the extent
reasonable and feasible to assure continuity of service. The user is not required to delay taking
such action in order to comply with other provisions of this Chapter(e.g., advance notice,
submissions of plans, permits, etc.), if the user does comply as soon as reasonably practicable.
(g) Temporary moving. A user shall, at its own expense, temporarily remove, raise or lower
its regulated facilities to permit the moving of houses or other bulky structures, if the Public
Works Director gives at least 72 hours advance written notice. The user may require that its
costs be reimbursed, unless the work is to accommodate construction, operation, repair,
maintenance or installation of a City facility(including a change of width or grade) or another
City operation in the ROW.
(h) Other moving or alteration. Within 90 days following receipt of notice from the Public
Works Director, a user shall, at its own expense, permanently, remove, relocate, change or alter
the position of the user's regulated facilities. The Director shall grant reasonable requests for
time extensions for good cause shown. The user may require that its costs be reimbursed, unless:
(i) the work is to accommodate construction, operation, repair, maintenance or installation of a
City facility(including a change of width or grade) or another City operation in the ROW, or(ii)
the work is required to place regulated facilities underground as authorized by this subchapter.
(i) Trees. A user shall not trim or damage trees(including their roots) unless the work is: (i)
needed for the safe and reliable operation, use and maintenance of its regulated facilities and (ii)
authorized by a permit under Chapter 22 of this Code. Exception: A Chapter 22 permit is not
required if the urban forester issues a written determination that no permit is required. All
trimmings shall be immediately removed when work is completed at any given location.
APPENDIX A Page A-17
• S
(j)Destruction of new pavement. See Subchapter B, above. A user may not excavate, cut
through or de public pavement. (As used in this paragraph, "new" means that
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structural-condition.
(k)Sidewalks. Users must replace sidewalks in segments that end at logical division points
such as intersecting driveways and crosswalks, thus avoiding patched and piecemeal sections of
sidewalks. Permits for ROW work may prescribe the division points.
(1) Time and manner. Users must limit the length of facilities under construction at any given
time, and must also limit the time, place and manner of ROW work, to the extent necessary to
reduce impacts upon ROW, nearby residents and properties. Permits for ROW work may
prescribe reasonable limits for this purpose.
(m) Consolidation; Common use of trenches, etc. Each user and potential user shall, upon
request from the Public Works Director, furnish information about ROW work planned during
the upcoming five years that might provide an opportunity for common use of excavations, bores,
etc. From time to time, the Public Works Director may propose that users participate in common
excavations, bores, etc., either with other users or with the City. If reasonable and necessary to
avoid wasteful duplication of facilities excavations, bores, etc. in street areas or to reduce
impacts upon ROW, residents or properties, t C,the Public Works Director's proposals may
include special requests after notice and hearing, may:
(Examples.conduits;manholes, excavations); and
(2j-require that extra or oversized excavations, bores, conduits, manholes and
facilities be made , laid or installed and then made available to the City or its
designees, provided that: (i) the City or its designee pays a fair
and reasonable share of the cost of such work and (ii) any resulting joint use will
not cause significant interference with any user's operations or facilities or any
competitive disadvantage. ; and
provided that the use is not inconsistent or unreasonably burdensome, and
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question.
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reasonable time (not to exceed five years), a proposed use of ROW, ;f-the user had previously
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(n)Removal. Unless the Public Works Director approves another disposition by written
permit, a user shall remove any of its regulated facilities from the ROW and restore the affected
areas (as required in the case of other ROW work), if: (i) any required permit or authorization
expires or is terminated or (ii) the regulated facility is not used for a period of 90 days or longer.
Removal and restoration shall begin within 30 days following either such occurrence and must be
completed within 30 days thereafter.
Sec. 19.605. Priorities for use of ROW.
(a)Municipal use. For municipal or purposes, the City has first priority over all other uses of
the ROW. For example, the City has full authority to lay sewer, gas, water, and other pipes and
cables and conduits, to install and change all other facilities, to do underground and overhead
APPENDIX A Page A-18
• •
work, and attachments, restructuring or changes to regulated facilities, and to change the curb,
sidewalks or roadways and their grades.
(b) Standards. The City shall assign locations in, on or over ROW among users and other
persons with due consideration to public health and safety considerations of each use. If there is
limited space available for additional users, the City may limit new users, as allowed under state
or federal law.
(c)Abutting uses. If the City authorizes abutting landowners to occupy space under the
surface of any ROW, the grant to an abutting landowner shall be subject to the rights of any
previously authorized user already using that location. If the City closes or abandons a ROW that
contains a user's regulated facilities, the closure or abandonment shall be subject to the rights of
the user.
Sec. 19.606. Insurance.
(a)In general. At all times when work is done in the ROW or when regulated facilities are
present in the ROW, a user shall maintain in effect insurance(or self-insurance), subject to the
same standards and exemptions provided in Subchapter B. .: •-• •--. . . : .; • -
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(c)Submission of proof Proof of required insurance (or self-insurance) must be submitted to
the Public Works Director with applications for permits and other approvals and must be kept
current with updated filings. Additional proof shall be submitted at other times upon request.
The Public Works Director may prescribe the form of insurance certificates and other proof to be
submitted.
Sec. 19.607. Indemnity.
At all times when work is done in the ROW or when regulated facilities are present in the
ROW, a user shall maintain on file with the City a written indemnity, subject to the same
standards and exemptions provided in Subchapter B. (a)In general. Each user shall promptly
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APPENDIX A Page A-19
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Subchapter G. Municipal Consents
Section 19.701. Defined terms.
Words and phrases specially defined in Subchapter F of this chapter have the same meanings
in this subchapter.
Section 19.702. Consents in general.
(a)In general; non-exclusivity. Subject to the restrictions set forth herein, the City may
consent to use of ROW for regulated facilities. All municipal consents shall be non-exclusive.
(b) CATV video, etc. No municipal consent under this sulfelrapter authorizes: This
subchapter does not cover: (i) . : •'-', : . • - - - - . - - -. . : . ': - •
. '-' -: - , - •: ., .• • - • :, cable service and or open video systems as
defined in Title VI of the Communications Act of 1934 [Title 47, Chapter 5, Subchapter V-A of
the United States Code (47 U.S.C. § 521, et seq.)], Any(ii) any other content service or (iii) any
services not specifically described in the municipal consent. are expressly cxcluded. The use of
ROW for the delivery of any service not covered by this subchapter is subject to all other
applicable City requirements, including, for example, a conventional franchise ordinance.
(c) Other provisions. Use of the ROW shall be governed by the other provisions of this
chapter as well as other applicable regulations.
(d)Attachments. A municipal consent does not grant attachment rights or authorize the use
of City infrastructure or facilities.
(e)Fees. Every user shall be liable for the fees and charges as provided for herein, whether a
consent, franchise or other authorization is obtained, or not, unless expressly preempted by state
or federal law.
Section 19.703. Procedures.
(a)Applications. A person must submit an application to the Public Works Director to
initiate the process to obtain a municipal consent. The application must be on a form prescribed
by the City, and it must include the following:
(1) the identity of the applicant, including all affiliates of the applicant that may have
control of the regulated facilities, to the extent known at the time of the application,
(2) a general description of the services to be provided;
(3) a description of the effect on the ROW, including construction, post-application
activity, routine maintenance, etc., including:
(A) the location and route required for applicant's proposed facilities;
(B) the location of all overhead and underground public utility,
telecommunication, cable, water, sewer, drainage and other facilities at the
location or along the proposed route;
(C) the specific trees, structures, improvements, facilities and obstructions, if
any, that the applicant proposes to affect; and
APPENDIX A Page A-20
• •
(D) additional data that the Public Works Director reasonably requests; and
(4) a non-refundable application fee of$850 (which may be credited against the first
quarterly payment of ROW fees as provided below).
(b)Review. The City Manager shall review an application submitted and shall recommend to
the City Council that it grant or deny the application. The City Manager shall make a
recommendation to the City Council as soon as practicable, but no later than the next Council
meeting forty days after a completed application has been filed. The City Manager may
recommend that another type of authorization(e.g., a conventional franchise) in lieu of a
municipal consent. Upon agreement between the City Manager and an applicant, action may be
postponed for one or more periods.
(c) Council action. Except for delay caused by the applicant, the City Council will take
initial action on the City Manager's recommendation within thirty days after receipt of the City
Manager's recommendation. No City Council action is required to confirm a recommendation to
deny, but the City Council will provide an acknowledgment of receipt of the recommendation
upon request. As provided in the City Charter, an ordinance is ordinarily required to grant
consents, and referendum provisions may also apply.
(c)No guarantee, etc. Nothing in this Code requires the City to grant any consent or
authorization to use ROW. The City retains the full discretion allowed by applicable regulations.
Review and approval by the City does not constitute a guarantee or representations of sufficiency
of the design or adequacy of any facilities or services. The applicant retains full responsibility
for the design and adequacy.
Section 19.704. Preparation and contents.
(a)In general. If the City Manager finds that the application meets the requirements of this
chapter, the City Manager shall request the City Attorney to prepare a municipal consent
ordinance for the City Council's consideration at the same time the application is before council.
(b) Certain contents. A municipal consent submitted to the City Council must include the
following provisions:
(1) a term of not more than five years (which may be longer in the case of franchises);
(2) a requirement that the user comply with all applicable regulations;
(3) provisions incorporating all applicable provisions of the City Charter and this Code,
including, without limitation, this subchapter and Subchapter F; and
(4) other provisions recommended by the City Attorney or the City Manager.
Section 19.705. Reconsideration procedure.
Any person whose application for a municipal consent is denied or whose municipal consent
is terminated may petition the City Council for reconsideration. A petition for reconsideration is
considered denied if the City Council does not act within forty 40 days after the petition is filed
with the City Secretary.
Section 19.706. ROW fees.
(a)In general. Each user shall compensate the City by payment of a ROW fee as provided
below. Exception: This requirement does not apply to telecommunications facilities, to the
extent fees are prohibited or preempted by Chapter 283, Texas Local Government Code.
(b) Calculation. For each calendar quarter or part thereof during the term of a municipal
consent, the ROW fee is the greater of either the access line fee (if applicable) or the linear foot
fee, plus the street crossing fee, as follows:
(1) Access line fee (telecommunications). The access line fee applies if the user has
access lines in the City for which an access line fee is in effect under Chapter 283 of
APPENDIX A Page A-21
•
the Texas Local Government Code. The amount is as prescribed, per access line, by
the Public Utilities Commission, and as provided below.
(2) Linear foot fee. The linear foot fee is $0.10 per quarter for each linear foot of
regulated facilities up to two inches in diameter. Greater-diameter facilities have a
fee that is proportionally greater (i.e., a six-inch diameter facility has a fee of$0.30
per foot). Boxes, cabinets and other above-ground enclosures count as 50 linear feet
each, or one linear foot per 50 cubic inches of volume, whichever is greater.
(3) Street crossing fee. For each calendar quarter during which the surface of any ROW
is materially disturbed by a regulated facility crossing, or by work related to the
crossing, the fee is $850 per location. It shall be presumed to be a material
disturbance if a sidewalk or lane of traffic is blocked, in whole or in part, for more
than four hours, or if there is any physical alteration or disturbance of the ROW. If
the access line fee is greater than the linear foot fee (see above) in a quarter, the
amount of the access line fee is credited toward the street crossing fee for that same
quarter.
(c)Adjustments. ROW fees may be adjusted by the City. Unless supported by an
independent valuation study, adjustments should not exceed 3.3% per year, compounded from
the date of the last adjustment.
(d)End-users,franchises, etc. The ROW fees are used to calculate the compensation due the
City and are not to be construed as the setting of a charge for end-users. These fees are the
minimum due for use of the ROW. If a franchise, another ordinance (e.g., Subchapter D) or
other authorization requires a greater fee, the greater fee prevails.
(e)Access line details. The following apply to users with access lines:
(1) The access line fee is due for each access line owned or used by the user, counted
as of month-end, that is activated for use by an end-use customer in the City of the
user or by a non-certificated telecommunications provider, by lease or otherwise.
An access line fee is not due for any access line if the revenues for it are
uncollectible.
(2) Subject to City's agreement not to disclose this information unless required by
law, each user must provide quarterly(or within a reasonable time after receipt of
the City's written request), a report showing the number of access lines being
owned, used, maintained or operated by the user that are serving premises within
the City, on a month-end basis. The City agrees that the report shall be used
solely for the purposes of verifying the number of access lines. Upon written
request, each user must verify the information in the report and, upon reasonable
advance notice, all non-customer specific records and other documents required
for such verification shall be subject to inspection by the City, expressly excluding
any records, documents or other writings the disclosure of which is prohibited by
state or federal law, including the Electronic Communications Privacy Act, 18
U.S.C. § 2701 et seq.
(f) Confidential data. If a user notifies the City by a conspicuous written notation of the
confidential nature of any information, reports, documents, or writings, the City agrees to
maintain the confidentiality of the information, reports, documents, and writings to the extent
permitted by law. Upon receipt by the City of requests for confidential information, reports,
documents, or writings, the City shall notify the user of the request in writing or by facsimile
transmission. The City shall furnish the user with copies of all requests for Attorney General's
opinions pertaining to the information request. The City shall request an Attorney General's
Opinion before disclosing any such confidential information, reports, documents or writings, if
allowed by law.
APPENDIX A Page A-22
•
(g)No other fees. The ROW fees (if applicable) shall be in lieu of any construction, building
or other permit, approval, inspection, or other similar fees or charges, including, but not limited
to, all general business permit fees customarily assessed by the City for the use of the ROW.
Further, such fees shall constitute full compensation to the City for all non-certificated
telecommunications provider's regulated facilities, including interoffice-transport and other
facilities that do not terminate at an end-user customer's network interface device, even though
those types of lines are not used in the calculation of the ROW fee (and for this purpose, those
providers may claim, as a credit against ROW fee payments, the amount of any application fees
paid to the City). The compensation paid herein is not in lieu of any generally applicable ad
valorem taxes, sales taxes or other generally applicable taxes, fees, development impact fees or
charges, or other statutory charges or expenses recoverable under the Texas Public Utility
Regulatory Act, or other statutes.
(h)Payment schedule. Each user shall remit the ROW fees on a quarterly basis. Payment
shall be made on or before the 45th day following the close of each calendar quarter for which
the payment is calculated and shall be paid by wire transfer to an account designated by the City
Manager.
(i)Audits. On 30 days notice to a user, the City may audit the user for a period of time to the
fullest extent allowed by law. The user shall furnish information to demonstrate its compliance
with the municipal consent and other provisions of this chapter.
(j)Records. Each user shall keep complete and accurate books of accounts and records of
business and operations that reflect the monthly count of all access lines, the linear feet of
regulated facilities and street crossings, for a period of one year after the expiration of the term of
its municipal consent. The City Manager may require the keeping of additional records or
accounts that are reasonably necessary for purposes of identifying, accounting for, and reporting
the number of access lines, regulated facilities, or street crossings used to deliver
telecommunication services or for calculation of the payments due hereunder. The City may
examine the user's books and records referred to above, expressly excluding any records,
documents or other writings the disclosure of which is prohibited by state or federal law,
including the Electronic Communications Privacy Act, 18 U.S.C. §2701 et seq, but only to the
extent such records reasonably relate to providing information to verify compliance with this
chapter and the municipal consent.
(k)No circumvention. A person shall not circumvent payment of any fees payable hereunder
or evade payment of such fees by bartering, transfer of rights, or by any other means.
Sec. 19.707. Furnishing information.
Each user shall make available to the City or the City's designated agent (hereinafter "agent"),
for the agent to examine, audit, review and copy, its books and records referred to above,
including papers, books, accounts, documents, maps, and plans that pertain to compliance with
this chapter or the municipal consent. They shall be made available in the City, upon the City
Manager's reasonable written request. The user shall fully cooperate in making them available
and otherwise assist the agent. The agent shall not inspect or copy or otherwise demand
production of customer specific information or any records, documents or other writings the
disclosure of which is prohibited by state or federal law, including the Electronic
Communications Privacy Act, 18 U.S.C. §2701 et seq.
Section 19.708. Transfers.
(a)In general. Neither a municipal consent nor any related rights or privileges nor any
regulated facilities covered by a municipal consent may be sold, resold, assigned, conveyed or
otherwise transferred by the user, either separately or collectively, to any other person, without
the prior written approval of the City granted by ordinance or resolution. The City's approval
APPENDIX A Page A-23
• •
may be withheld if the transferee does not provide adequate information to the City to show that
it has the ability to perform and comply with the municipal consent and this chapter. Such
approval shall not otherwise be unreasonably withheld or delayed. Should a user make such a
transfer without the City's prior consent, the City may revoke the municipal consent for default,
in which event all rights and interest of the user under the municipal consent and this chapter
shall cease. Further, any transfer in violation of this section shall be null and void and
unenforceable.
(b) Change of control. Any change of control of a user shall constitute a transfer under this
section that requires consent of the City. There shall be a rebuttable presumption of a change of
control if there is a change of 25% or greater in the ownership of a user.
(c)Mortgages, etc. A mortgage or other pledge of assets to a bank or lending institution in a
bona fide lending transaction shall not be considered a transfer.
(d)Approval by inaction. Notwithstanding anything else in this section, if the City has not
approved or denied a request to transfer under this section at the next regular Council meeting
held after the elapse of 40 days from the date of written notice of such request, it shall be deemed
approved. Such time frame may be extended by mutual agreement of the parties.
(e)Exempt transfers. A non-certificated telecommunications provider may without City
approval, (i) transfer or assign the regulated facilities under a municipal consent to another non-
certificated telecommunications provider which has a municipal consent under this subchapter;
(ii) transfer or assign the municipal consent to an affiliate that is a certificated
telecommunications provider or (iii) collaterally assign the municipal consent to its lender as
security, and said lender may exercise its security interest and transfer the municipal consent to a
third party that is a certificated telecommunications provider; however, unless there is prior
consent by the City which releases the holder of the municipal consent ("assignor") from its
obligations and liabilities under the municipal consent, such assignor is not released from any
obligations or liabilities that arise from this chapter or the municipal consent. The non-
certificated telecommunications transferring or assigning the facilities or the municipal consent
must give written notice of such to the City Manager within 14 days.
Sec. 19.709. Interpretation of subchapter.
This subchapter shall be interpreted and construed to harmonize with other ordinances and
regulations and with the Constitution and laws of the United States and the State of Texas.
Section 19.710. Renewal.
A user may request renewal of a municipal consent by making written application to the City
Manager at least 90 days before the expiration of the consent.
Section 19.711. Boundary changes.
Within 30 days following the date of the passage of any action affecting the City's corporate
boundaries, the City agrees to furnish written notice of the action to each user. For the purpose
of ROW fees, users shall start including or excluding access lines within the affected area on the
effective date designated by the Comptroller of Public Accounts for the imposition of local sales
and use taxes, but in no case sooner than 30 days from the date the user is notified.
Section 19.712. Termination.
(a)In general. The City shall have the right to terminate any municipal consent and any
related rights or privileges in the event of a material breach of the terms and conditions of the
municipal consent or this chapter, but only after giving at least 30 days written notice to the user
and the opportunity to cure the breach during that 30 day period. Upon written request and
APPENDIX A Page A-24