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HomeMy WebLinkAboutOrdinance No. 03-1468 CITY OF THE COLONY, TEXAS ORDINANCE NO. 0j'7~Lgo~ AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS OF RELATING TO AND GOVERNING THE USE OF THE PUBLIC RIGHTS-OF-WAY; ALSO, REPEALING ARTICLE II, SECTIONS 18-20 THROUGH SECTIONS 18-26 AND ARTICLE III, SECTIONS 18-30 AND SECTIONS 18-31, PROVIDING DEFINITIONS; PROVIDING CERTAIN CONSTRUCTION OBLIGATIONS; ESTABLISHING CERTAIN CONDITIONS OF OCCUPANCY OF THE PUBLIC RIGHTS-OF-WAY; PROVIDING A PENALTY OF NOT LESS THAN THE SUM OF FIVE HUNDRED ($$00.00) DOLLARS AND NO MORE THAN TWO THOUSAND ($2,000.00) DOLLARS FOR EACH OFFENSE AND A SEPARATE OFFENSE SHALL BE DEEMED COMMITTED EACH DAY DURING OR ON WHICH A VIOLATION OCCURS OR CONTINUES; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE. WHEREAS, THE City o£ The Colony, located in Denton, County, Texas, is a Home Rule municipality possessing the full power of local self-government as provided by Article XI, Section 5, of the Constitution of the State of Texas, Section 51.072 of the Texas Local Government Code and its Home Rule Charter; and WHEREAS, the City of The Colony, Texas (the "City") seeks to facilitate an orderly use of the Public Rights-of-Way in a non-discriminatory and competitively neutral basis; and, WHEREAS, in accordance with applicable state and federal laws, the City seeks to exercise its historical right to control and manage its Public Rights-of-Way on a competitively neutral and nondiscriminatory basis; and implement certain police power regulations in the use of those Public Rights-of-Way. WHEREAS, the City Council of the City of The Colony, Texas, is empowered under the Texas Local Government Code § 54.001 to do all acts and make all regulations which may be necessary or expedient for the promotion of the public health, safety and general welfare; and WHEREAS, the City Council of the City of The Colony, Texas, is empowered under the Texas Local Government Code § 51.001 to adopt an ordinance or role that is for the good government of the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION !. CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 3 of 17 INCORPORATION OF PREMISES 1.01 The above and foregoing premises are true and correct and are incorporated herein and made a part hereof for all intents and purposes. SECTION 2.. DEFINITIONS 2.01 In this ordinance: (a) City means the City of The Colony, Texas and the City's officers and employees. (b) Certificated Telecommunications Provider (CTP) means the same as in Texas Local Government Code Section 283.002(2) [any entity that has been granted a certificate from the Texas Public Utility Commission under Chapter $4 of Texas Utility Code authorizing that entity to provide local exchange telephone service]. (c) Director means the Director of Planning and Development of the City or the Director's designee. (d) Emergency is defined as those operations and repairs necessary to prevent damage or injury to the health or safety of the pfiblic or any Person and the work necessary to restore a service interruption or prevent a potential service interruption. Upgrading of Facilities, new service installation and neighborhood improvement projects are not emergency operations (e) Excavation means any activity that removes or otherwise disturbs soil, pavement, driveways, curbs, or sidewalks in the Public Rights-of-Way and does not include landscaping activity unless the activity removes or disturbs the paved portion of the Public Right-of-Way. (f) Facilities means any and all of the wires, cables, fibers, duct spaces, manholes, poles, conduits, underground and overhead passageways and other equipment, structures, plant and appurtenances and all associated physical equipment placed in, on or under the Public Rights-of-Way. (g) Person means a natural person (an individual), corporation, company, association, partnership, finn, limited liability company, joint venture, joint stock company or association, and other such entity who places, constructs, reconstructs, maintains, or repairs Facilities on, in, over or under the Public Rights-of-Way excepting the City. (h) Public Rights-of-Way means the same as the term is defined in Texas Local Government Code, § 283.002(6), and as amended, and being the area within the City 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 a Public Right-of-Way with regard to wireless telecommunications. CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 4 of 17 ..... · SECTION 3. FINDINGS AND PURPOSES 3.01 The purposes of this Ordinance are to: (a) govern the use and occupancy of the Public Rights-of-Way; (b) assist in the management of Facilities placed in, on or over the Public Rights-of-Way in order to minimize the congestion, inconvenience, visual impact and other adverse effects, and the costs to the citizens resulting from the placement of facilities within the Public Right-of-Way; (c) assist the City in its efforts to protect the public health, safety and welfare; (d) conserve the limited physical capacity of the Public Rights-of-Way held in public trust by the City; (e) preserve the physical integrity of the streets and highways; (f) control the orderly flow of vehicles and pedestrians; (g) monitor and coordinate the activities of the different entities using the Public Rights- of-Way to prevent interference between them in the use of the Public Rights-of-Way; (h) assist with scheduling common trenching and street cuts; and (i) protect the safety, security, appearance, and condition of the Public Rights-of-Way. SECTION 4. PROCESS 4.01 A Person to whom this ordinance applies shall: (a) register with the City in accordance with Section 5.0 l(c); (b) secure from the City a franchise, license or other authorization as may be required by the City to use the Public Rights-of-Way (provided, however, that such requirement shall not apply to a Certificated Telecommunications Provider); (c) as part of the registration process, and before a permit is issued, be required to provide security. Such security may take the form of a bond, an irrevocable letter of credit, or a statement of fiscal responsibility, as set forth below. (i) A corporate surety bond in an amount not to exceed $25,000 issued by a corporate surety authorized to do business in the State of Texas. The rights reserved to the City with respect to the bond are in addition to all other rights of CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 5 of 17 the City and no action, proceeding, or exemise of a right with respect to such bond shall affect any other rights of the City. (ii) An irrevocable letter of credit, in a form satisfactory to the City Manager and the City Attorney. The letter of credit shall be issued by a federally insured commercial lending institution with a credit rate of BAA or BBB+ or higher. The federally insured commercial institution on which the irrevocable letter of credit is to be drawn shall be acceptable to the City and shall not exceed $25,000. (iii)Written evidence, in the form of its most recent audited financial statement, showing assets or rose,yes sufficient to cover the amount of the guarantee required by this Section. If the Person's assets or reserves are no longer adequate to comply with the amounts required by this Section, the Person shall immediately notify the City and shall obtain a bond or letter of credit as set forth above. (d) obtain a permit from the City prior to performing any work, except in emergency situations, as defined in Section 2.01(d) herein, which requires (i) the breaking of pavement within the Public Rights-of-Way, (ii) excavation, except for excavation that is required for new customer service installation (service drops) and service wire maintenance or repair, or (iii) the complete closure of any traffic lane for a period greater than four (4) hours; and (e) prior to construction of or on any Facilities, except in emergency situations, as defined in Section 2.01(d) herein, obtain approval from the City of construction plans and maps in connection with such work and give the City notice of the initiation of such work. SECTION 5 SCOPE 5.01 (a) This Ordinance applies to all Persons that place Facilities in, on or over Public Rights-of-Way. (b) Any Person with a current, unexpired consent, franchise, agreement or other authorization from the City ("Grant") to use the Public Rights-of-Way that is in effect at the time this Ordinance becomes effective shall continue to operate under and comply with that Grant until the Grant expires or until it is terminated by mutual agreement of the City and thc Person, or terminated as otherwise provided for by law. To the extent that a Grant is inconsistent with the terms of this Ordinance, the terms of the Grant shall control. (c) In order for the City to know which Persons own Facilities in the Public Rights-of- Way, each Person who owns Facilities shall register with the Director of Planning and Development and provide the following information: (i) the Person's name, (ii) a phone number at which the Person may be reached 24 hours a day; (iii) the current name, address, and telephone number(s) of a contact employed by the Person with binding and decision-making authority for the Person and who shall be responsible CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 6 of 17 for satisfying all information needs of the City(the "Contact"), and (iv) such other information as the Director may reasonably require. Each such Person shall update and keep current his/her registration with the City at all times, but no less than on an annual basis. SECTION 6. CONSTRUCTION AND MAINTENANCE 6.01 A Person is subject to reasonable police power regulation of the City to manage its Public Rights-of-Way in connection with the construction, expansion, reconstruction, maintenance or repair of Facilities in the Public Rights-of-Way, pursuant to the City's rights as a custodian of public property, based upon thc City's historic rights under state and federal laws. Such regulations include, but are not limited to, the following: (a) Any Facilities installed or constructed on, in, over or under thc Public Rights-of-Way shall: (1) be constructed, reconstructed and maintained in accordance with plans approved by thc City, and such approval shall not constitute a warranty that such plans conform with federal, state and/or local codes and regulations applicable thereto; (2) comply with all applicable laws or ordinances of the City, including, but not limited to, construction and/or excavation permits; (3) be done and in such manner as not to interfere unreasonably and unnecessarily with the use of the Public Rights-of-Way; (4) be constructed, reconstructed, and maintained so that the Public Rights-of-Way are kept in a neat and safe operating condition failing which, the City may do so at the expense of the Person owning the Facilities. (b) In the event a Person performs open trenching within the Public Rights-of-Way, the Person may be required by the City to conduct soil compaction testing of the trench backfill to ensure that them are no adverse impacts on any Facilities of the City. All costs incurred by the test, or any corrections thereof, shall be borne by the Person. (c) A Person may be required to place certain Facilities within the Public Rights-of-Way underground absent a compelling demonstration by the Person that, in any specific instance, this requirement is not reasonable, feasible or equally applicable to other similar users of the Public Rights-of-Way. (d) Unless the Person is a CTP or covered by an existing grant, a permit fee shall be charged by the City for the issuance of a permit which shall be in addition to all other fees for permits or charges relative to any proposed construction work. The excavation permit fee shall be in an amount of Fifty ($50.00) Dollars. (e) A Person shall perform operations, excavation and other construction in the Public Rights-of-Way in accordance with all applicable City requirements, including the CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 7 of 17 obligation to use trenchless technology whenever commemially economical and practical and consistent with obligations on other similar users of the Public Rights-of-Way. The City shall waive the requirement of trenchless technology if it determines that the field conditions warrant the waiver, based upon information provided to the City by the Person. All excavations and other construction in the Public Rights-of-Way shall be conducted so as to minimize interference with the use of public and private property. A Person shall follow all reasonable construction directions given by the City in order to minimize any such interference. (f) A Person must obtain a construction or other applicable permit prior to any excavation, construction, installation, removal, relocation or maintenance of the Person's Facilities; provided, however, that such a permit is not required for routine maintenance (i) that does not require excavation of the Public Rights-of-Way, alter the surface or interfere with any landscaping or public improvements located in the Public Rights-of-Way, or block traffic lanes or sidewalks, or (ii) that requires the blocking of traffic lanes or sidewalks for less than four (4) hours if the Person has first given to the Director notice of the date, time, location, general nature of the maintenance and such other information as may be required by the Director relating to such routine maintenance. Unless waived by the Director, an application for such a permit must be filed with the City at least five (5) business days prior to ~iny work in connection with the Person's Facilities. In connection with such permit, a Person shall furnish, among other information as may be reasonably required by the City, construction plans and maps showing the location and proposed routing of new construction or reconstruction. (g) A Person must comply with the Underground Facility Damage Prevention and Safety Act, Texas Utilities Code, §§ 251.001 et seq., as amended (the "One-Call Statute") before beginning construction. For a permit issued in connection with the excavation of any Rights-of-Way, the Person shall give to the City at least twenty-four (24) hours notice (which could be at the time of the issuance of the permit) which shall include the "One Call" ticket number prior to undertaking any of the above listed activities on its Facilities in, on, over or under the Public Rights-of-Way; provided, however, that this notice requirement may be waived by the Director. The failure of the Person to request and obtain a permit from the City prior to performing any of the above listed activities in, on, under or over any Public Rights-of-Way, except in an emergency as provided for in this Ordinance, shall subject the Person to a stop-work order from the City and enforcement action pursuant to the City's Code of Ordinances, other ordinances, roles or regulations. (h) Unless otherwise provided in a specific permit, if a Person fails to act upon any permit within ninety (90) calendar days of issuance, the permit shall become invalid, and the Person will be required to obtain a new permit or to obtain an extension on the existing permit as may be approved by the Director. (i) Emergency responses (customer service interruptions and/or eminent harm to property or people) may be undertaken without first obtaining a permit; however, the Director shall be notified as soon as practicable, and, if appropriate, the Person shall submit a permit application within five (5) days thereafter. (i) When a Person completes construction, expansion, reconstruction, removal, excavation CITY OF THE COLONY, TEXAS - RIGHTS~OF-WAY ORDINANCE PAGE 8 of 17 or other work, the Person shall promptly restore the Public Rights-of-Way to a condition that is equal to or better than the condition of the property prior to the performance of the work. A Person shall replace and properly re-lay and repair the surface, base, irrigation system and landscape treatment of any Public Rights-of-Way that may be excavated or damaged by reason of the erection, construction, maintenance, or repair of the Person's Facilities within thirty (30) calendar days (unless extended by the City for good cause) after completion of the work; provided, however, that such timetable shall apply only to the extent the same is not addressed in another ordinance, role or regulation of the City which requires a permit for any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of Facilities. (k) Upon failure of a Person to perform or to initiate the performance of any such repair or replacement work within five (5) business days after written notice has been received by the Person (such notice having been sent by the city to the contact by either hand- delivery, by facsimile transmission, or by certified mail, return receipt requested), or within such other agreed timeframe, the city may repair such portion of the Public Rights-of-Way as may have been disturbed by the Person, its contractors or agents. The Person will reimburse the City for the reasonable and verifiable costs incurred within sixty (60) calendar days from the date of the City invoice. Provided, however, that the provisions of this subsi:ction shall apply only to the extent the same is not addressed in another ordinance, rule or regulation of the City which requires a permit for any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of Facilities. (1) Should the City determine, within one (1) year from the date of the-completion of the original restoration, that additional restoration work is needed to return the affected property to a condition at least equal to the condition of the property immediately pr/or to the construction, a Person shall perform such additional restoration work as required. (~m)Notwithstanding the foregoing, if the City determines that the failure of a Person to properly repair or restore the Public Rights-of-Way constitutes a safety hazard to the public and after emergency notice to the Person has been provided (to the extent reasonable under the circumstances), if the Person does not begin the emergency repairs, as defined in Section 2.01(d) herein, within twenty-four (24) hours, the City may undertake emergency repairs and restoration efforts. A Person shall promptly reimburse the City for all costs incurred by the City within sixty (60) calendar days from the date of the City invoice; provided, however, that such timetable shall apply only to the extent the same is not addressed in another ordinance, rule or regulation of the City which requires a permit for any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of Facilities. (n_) If the City declares an emergency with regard to the health and safety of the citizens and requests by written notice the removal or abatement of Facilities, a Person shall remove or abate the Person's Facilities by the deadline provided in the City's request, unless otherwise agreed to by the City. The Person and the City shall cooperate to the extent possible to assure continuity of service. If the Person, after notice, fails or refuses to act, the City may remove or abate the facility, at the sole cost and expense of the Person, without paying compensation to the Person and without the City incurring liability for CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 9 of 17 damages. (o)The Person is responsible for work zone safety including, but not limited to, traffic control and appropriate handling of all equipment and materials. The Person, including its employees and contractors, shall comply with the Texas Manual on Uniform Traffic Control Devices ("TMUTCD"), as amended and adopted by the City, at all work zone sites. (p) The Person under this section shall take appropriate measures to assure that during the performance of the work, traffic conditions as nearly normal as practicable shall be maintained at all times so as to cause as little inconvenience as possible to the occupants of the abutting property and to the general public, provided that the Director may permit the closing of streets to all traffic for a period of time prescribed by him if, in his opinion, it is necessary. No lane closures on major arterials and Collector streets shall be permitted during the hours of 6:30 a.m. to 8:30 a.m. and 4:00 p.m. to 6:30 p.m., Mondays through Fridays. (q) Emergency closures (customer service interruptions and/or eminent harm to property or people) during these hours may be permitted upon notice to the Director. The Person shall route and control traffic.including its own vehicles as directed by the police department. SECTI6 7. ADDITIONAL OBLIGATIONS 7.01 Upon request by the City for the engineer plans for a specific location (intersection, street block, etc.), the Person shall provide such information to the City within ten (10) business days of the requests. However, requests for the engineer plans for larger areas shall be provided within a reasonable time of the request. All information furnished pursuant to this request shall be in a format used in the ordinary course of the Person's business. 7.02 If the release of the location of any utilities would jeopardize public safety, the information shall be considered confidential. In addition, if any plans include information expressly designated by the Person, and communicated to the City as being a trade secret or other confidential information protected from disclosure by state law, the City may not disclose that information to the public without the consent of the Person, unless otherwise compelled by an opinion of the attorney general pursuant to the Texas Public Information Act, as amended, or by a court having jurisdiction of the matter pursuant to applicable law. This subsection may not be construed to authorize a right-of-way user to designate all matters in its plans as confidential or as trade secrets. SECTION 8. INDEMNITY 8.01 Unless the Peraon is a CTP or the holder of a Grant containing an indemnity clause to the City, Person shall fully indemnify, hold harmless and defend the City and its officers and employees from all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney's fees and costs of defense), proceedings, actions demands, causes of action, liability, and suits of any kind and nature, including porsonal or bodily injury CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 10 of 17 (including death), property damage, or other harm for which recovery of damages is sought that is found by a court of competent jurisdiction to be caused solely by the negligent act, · error, or omission of the Person, any agent, officer, director, representative, employee, affiliate, or subcontractor of the Person, or their respective officers, agents, employees, directors, or representatives, while installing, repairing, or maintaining facilities in a right-of- way. The Person shall not, without the prior written consent of the City and the other parties hereby indemnified, which consent will not be unreasonably withheld, settle or compromise or consent to the entry of any judgment, any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder unless such settlement, compromise or consent includes an unconditional release of each affected indemnified part) from all liability arising out of such claim, action, suit or proceeding. 8.02 This indemnity provision shall not apply to any liability resulting from the negligence of the City, its officers, employees, agents, contractors, or subcontractors. 8.03 The provisions of this indemnity clause are solely for the benefit of the City and are not intended to create or grant any rights, contractual or otherwise, to any other Person or entity. 8.04 A CTP shall indemnify the City in accordance with Section 283.057 of the Texas Local Government Code. SECTION 9. INSURANCE 9.01 (a) Worker's compensation insurance meeting Texas' statutory requirements and employer's liability insurance with minimum limits of Five Hundred Thousand ($500,000.00) Dollars for each accident. (b) Comprehensive commemial general or excess liability insurance with minimum limits of Five Million ($5,000,000.00) Dollars as the combined single limit for each occurrence of bodily injury, personal injury and property damages. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor's liability; and coverage for property damage from perils of explosion and collapse or damage to underground utilities, commonly known as XCU coverage. (c) Automobile liability or exoess insurance covering all owned, hired, non-owned vehicles in use by the Provider, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of the Texas No-Fault Insurance Law, with minimum limits of Five Million ($5,000,000.00) Dollars as the combined single limit for each occurrence for bodily injury, personal injury and property damage. (d) At the start of and during the period of any construction, builders all-risk insurance, providing coverage on all building and structures which will be installed or constructed as part of the facilities together with an installation floater or equivalent property coverage covering cables, materials, machinery and supplies of any nature CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 11 of 17 whatsoever which are to be used in or incidental to the construction of the facilities. Upon completion of the construction of the facilities, the Provider shall substitute for the foregoing insurance policies: fire, extended coverage and vandalism and malicious mischief insurance on the entire completed system. The amount of insurance at all times shall be representative of the insurable values installed or constructed. (e) All policies other than those for Worker's Compensation shall be written on an occurrence or a claims-made-basis. (f) 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. 9.02 All policies, except for business interruption and worker's compensation policies, shall name the "City of The Colony, a municipal corporation of the State of Texas, and all associated, affiliated, allied and subsidiary entities of the Municipality, now existing or hereafter created, and their respective officers, boards, commissions, employees, agents and contractors, as their respective interests may appear" as additional insureds (herein referred to as the "Additional Insureds"). Each policy which adds Additional Insureds hereunder, shall contain cross-liability wording of a similar nature: "In the event of a claim being made hereunder by one insured for which another insured is or may be liable, then this policy shall cover such insured against whom a claim is or may be made in the same manner as if separate policies had been issued to each insured hereunder." 9.03 Certificates of insurance for each insurance policy required to be obtained by the Person in compliance with this Section, shall be filed and maintained with the City Secretary's office annually during the term of this Ordinance. The Provider shall immediately advise the Indemnitees of any claim or litigation that may result in liability to them. 9.04 All insurance policies maintained pursuant to this Ordinance shall contain the following: "At least thirty (30) days prior written notice shall be given to the City of The Colony by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same." 9.05 All insurance shall be effected under valid and enforceable policies, insured by insurers licensed or authorized to do business in the State of Texas or surplus line carders on the State of Texas Insurance Commissioner's approved list of companies qualified to do business in the State of Texas. All insurance carders and surplus line carders shall be rated "Aw" or better by A.M. Best. 9.06 The Person agrees to indemnify and save harmless the Indemnitees and Additional Insureds from and against the payment of any retainage or deductible and from the payment of any premium on any insurance policy required to be furnished by this Ordinance. CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 12 of 17 9.07 In lieu of the foregoing, a Person shall provide written proof of a self-insurance program and the financial ability to meet the above-stated requirements. 9.08 The above insurance requirements may be met by Persons with a current franchise or license and Persons governed by Chapter 283 of the Texas Local Government Code if the current franchise, license or statutory indemnity adequately provides for insurance or bonds or provides an indemnity in favor of the City. SECTION 10. CONDITIONS OF PUBLIC RIGHTS-OF-WAY OCCUPANCY 10.01 In the exercise of gnvernmcntal functions, thc City has first priority over all other uses of the Public Rights-of-Way, when such functions are not in competition with other Persons or ercatc a barrier for competition. The City reserves the right to lay sewer, gas, water, and other pipe lines or cables and conduits, and to do underground and overhead work, and attachments, restructuring or changes in aerial Facilities in, across, along, over or under a public street, alley or Public Right-of-Way occupied by a Person, and to change thc curb, sidewalks or thc grade of streets. 10.02 The City shall assign the location in or over the Public Rights-of-Way among competing users of the Public Rights-of-Way with due consideration to the public health and safety considerations of each user, type, and to the extent the City can demonstrate that there is limited space available for additional users, may limit new users, as allowed under state or federal law. 10.03 If thc City authorized abutting landowners to occupy space under the surface of any public street, alley, or Public Rights-of-Way, thc grant to an abutting landowner shall be subject to the rights of the previously authorized user of the Public Rights-of-Way. If the City closes or abandons a Public Right-of-Way that contains a portion of a Person's Facilities, the City shall close or abandon such Public Right-of-Way subject to the rights of the Person. 10.04 (a) If the City gives written notice that construction has not been completed in conformance with approved as-built plans submitted to thc City or that duc to widening or straightening of streets or protection of thc street or Right-of-way, a Person shall, at its own expense, unless provided otherwise by state law or an existing Franchise Agreement until that franchise expires or is otherwise terminated, temporarily or permanently, remove, relocate, change or alter thc position of the Person's Facilities that are in thc Public Rights-of-Way within one hundred twenty (120) days, except in circumstances that require additional time as reasonably determined by the City based upon information provided by thc Person. For projects expected to take longer than one hundred twenty (120) days to remove, change or relocate, the City will confer with the Person before determining the alterations to be required and the timing thereof. The City shall give notice whenever thc City has determined that removal, relocation, change or alteration is reasonably necessary for the construction, operation, repair, maintenance or installation of a City governmental public improvement in the Public Rights-of-Way. This section shall not bc construed to prevent a Person's recovery of the cost of removal or relocation, nor shall it be required if the improvements arc solely for bcantification purposes without CITY OF THE COLONY, TEXAS- RiGHTS-OF-WAY ORDINANCE PAGE 13 of 17 prior joint deliberation and agreement with the Person. Where a Person is entitled to reimbursement for the relocation of its Facilities, that Person may demand full payment of such relocation costs in advance. The City shall make a good faith effort to minimize conflicts with existing Facilities. (b) If the Person fails to relocate Facilities in the time allowed by the City in this Section: (i) the Person may be subject to liability to the City for such delay and as set forth in the City ordinances, now and hereafter enacted, and (ii) the City has the right, to the extent allowed by law, to relocate or cause to be relocated the affected portion of the Facilities and the Person shall promptly reimburse the City for all costs of such relocation. (c) Notwithstanding anything in this subsection 10.04, the Director and a Person may agree in writing to different time frames than those provided above if circumstances reasonably warrant such a change. 10.05 A Person may trim trees in or over the Public Rights-of-Way for the safe and reliable operation, use and maintenance of its Facilities. All tree trimming shall be performed in accordance with standards adopted by the City and shall be done in such a manner to preserve as much vegetation and natural shape of trees as reasonably possible, and still accomplish a safe and effective tree trimming program. Reasonable efforts shall be made to contact affected property owners prior to necessary tree trimming operations. Except for trimming debris generated as a result of emergency restoration work, defined in Section 2.01 (d) herein, should the Person, its contractor or agent, fail to remove such trimmings within twenty-four (24) hours (unless a longer period is required for extraordinary conditions and conditions beyond the control of the Person), the City may remove the trimmings or have them removed, and upon receipt of a bill from the City, the Person shall promptly reimburse the City for all costs incurred within sixty (60) working days. 10.06 A Person, upon request, shall temporarily remove, raise or lower its aerial Facilities within the City to permit the moving of houses or other bulky structures. The expense of these temporary rearrangements shall be paid by the party or parties requesting and benefiting from the temporary rearrangements, and the Person may require such payment in advance. The Person shall be given not less than five (5) business days advance notice to arrange for such temporary rearrangements. The commencement of the temporary alteration shall begin as soon as practicable after receiving payment, or other acceptable guarantee, from the person requesting the move. The clearance of aerial Facilities shall conform to the basic standards of the National Electrical Safety Code, National Bureau of Standards, and the United States Department of Commerce as promulgated at the time of erection thereof. SECTION 11. GOVERNING LAW 11.01 This ordinance shall be construed in accordance with the City Code of Ordinances and regulations in effect on the effective date of this Ordinance to the extent that such Code or regulations are not in conflict with or in violation of the Constitution and laws of the United States or the State of Texas, subject to the City's ongoing authority to adopt reasonable regulations to manage its Public Rights-of-Way, pursuant to the provisions of this Ordinance CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 14 of 17 or as otherwise provided by law. SECTION 12. UNAUTHORIZED USE OF PUBLIC RIGHTS OF WAY 12.01 The City may institute all appropriate legal action to prohibit any Person from knowingly using the Public Rights-of-Way unless the Person has complied with the terms of this Ordinance. SECTION 13. PRESERVATION OF MONUMENTS 13.01 The Person shall not disturb any surface monuments or hubs found on the line of excavation work until approved to do so by the Director. SECTION 14. INSPECTIONS 14.01 Director shall make such inspections as are reasonably necessary in the enforcement of this ordinance. The Director shall have the authority to promulgate and cause to be enforced such rules and regulations as may be reasonably necessary to enforce and carry out the intent of this ordinance. SECTION 15. APPLICABILITY OF ARTICLE TO CITY 15.01 The provisions of this ordinance shall be applicable to any excavation work under the direction of a competent City authority by employees of the City. Any contractor of the City performing work for or in behalf of the City necessitating openings or excavations in streets shall comply with this ordinance unless the Director shall, in writing, waive compliance of the requirements o£ this ordinance up on the terms and conditions he deems necessary. All provisions of this ordinance shall be applicable to all Persons and their contractors. SECTION 16. PERMIT SUSPENSION AND APPEAL 16.01 Permits may be suspended by the Director on the following grounds: (a) Failure of Person to diligently complete work al~er beginning. (b) Violation of any terms or provisions of this or any other city ordinance pertaining to excavation or construction. (c) Giving false information upon the application. (d) Failure of Person to finish the work on or before the finish date set forth in the application, or the date to which the permit has been extended. CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 15 of 17 16.02 A Person that has been denied registration, denied a permit, had a permit suspended or revoked, or has any other disputes regarding its use of the Public Rights-of-Way shall obtain a review, upon request, as follows: (a) Ifa Person desires to appeal a decision, the Person may file a written notice of appeal with the Director within ten (10) business days of the date the decision was rendered. The Director shall provide a written decision within five (5) business days. Failure to render a decision within five (5) business days shall constitute a denial. (b) Ifa further denial is given, the Person may thereafter file a written notice of appeal to the City Manager within ten (10) business days of receipt of the denial. The City Manager shall provide a written decision within five (5) business days of receipt of an appeal in accordance with this section. Failure to render a decision within five (5) business days shall constitute a denial. (c) If a further denial is given, the appellant may thereafter file a written notice of appeal to the City Council within ten (10) business days of receipt of the denial. The appeal shall be placed on the next appropriate agenda of the City Council, as determined by the City Manager, unless the parties agree to another date. SECTION 17. SEVERAI~iLITY 17.01 Thc provisions of this Ordinance arc severable. However, in thc event this Ordinance or any procedure provided in this Ordinance becomes unlawful, or is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to bc excessive, uncnforeeable void, illegal or otherwise inapplicable, in whole in part, the remaining and lawful provision shall bc of full force and effect and the City shall promptly promulgate new revised provision in compliance with the authority's decision or enactment. SECTION 18. PENALTY 18.01 Any person violating or failing to comply with any provision of this Ordinance shall bc fined, upon conviction, in an amount not more than Two Thousand Dollars ($2,000.00), and separate offenses shall be deemed committed each day during or on which a violation occurs or continues. SECTION 19. CUMULATIVE 19.01 This Ordinance shall be cumulative of all provisions of ordinances of the City of The Colony, Texas, except where the provisions of this Ordinance are in direct conflict with the provisions of such ordinance(s), in which event the conflicting provisions of such ordinances are hereby repealed. This Ordinance shall not be interpreted to void or repeal any Grant existing on the effective date of this Ordinance. SECTION 20. CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 16 of 17 SAVINGS CLAUSE 20.01 All rights and remedies of the City of The Colony, Texas are expressly saved as to any and all violations of the provisions of any other ordinance affecting providers or Public Right-of- Way use which have secured 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 court. SECTION 21. PUBLICATION 21.01The City Secretary of the City of The Colony is hereby directed to publish in two issues of the Official newspaper of the City of The Colony, the Caption, Penalty Clause, and Effective Date Clause of this Ordinance as required by Section 52.011 of the Texas Local Government Code. SECTION 22. ENGROSSMENT AND ENROLLMENT 22.01 The City Secretary is hereby directed to engross and enroll this Ordinance by copying the exact Caption, Publication Clause, Penalty Clause, and Effective Date clause in the minutes of the City Council and by filing this Ordinance in the Ordinance records of the City. SECTION 23. EFFECTIVE DATE 23.01 This Ordinance shall become effective from and after its date of passage in accordance with law. /._~/~7~j~_~.~PhaSSED AND APPROVED BY the City Council of the City of The Colony, Texas, this/~z_~day of ,2003. /~yor, Cf,~o f The Co~fy~xas [~?'-O t? ~ ~The Colony, Texa~~i'"~' City Secretary s CITY OF THE COLONY, TEXAS - RIGHTS-OF-WAY ORDINANCE PAGE 17 of 17