O-2024-12 Repealing Chapter 13 Article 13.08 Right-of-Way Management, Replacing with New Article 13.08TOWN OF PROSPER, TEXAS
ORDINANCE NO. 2024-12
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF PROSPER,
TEXAS, REPEALING EXISTING ARTICLE 13.08, "RIGHT-OF-WAY
MANAGEMENT," OF CHAPTER 13, "UTILITIES," OF THE CODE OF
ORDINANCES OF THE TOWN OF PROSPER, TEXAS, AND REPLACING IT
WITH A NEW ARTICLE 13.08, "RIGHT-OF-WAY MANAGEMENT"; PROVIDING
FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING
FOR A PENALTY; PROVIDING FOR AN EFFECTIVE DATE; AND PROVIDING
FOR THE PUBLICATION OF THE CAPTION HEREOF.
WHEREAS, the Town of Prosper, Texas (the "Town"), is charged with maintaining control
of and access to the public right-of-way in order to protect the health, safety and welfare of its
citizens and the public; and
WHEREAS, the Town has found that work performed by right-of-way users in the public
right-of-way can significantly interfere with public use of the right-of-way and existing utility
facilities, and negatively affect public safety, public resources, air quality, level of service on
streets and sidewalks, community aesthetics, parking and business; and
WHEREAS, pursuant to the Town's home -rule powers, the Town Council has found that
it is necessary to amend certain regulations governing the installation, operation, maintenance,
repair, modification and replacement of facilities in the public right-of-way in order to protect the
health, safety and welfare of the Town's citizens and the public by minimizing and reducing
impacts to public safety within the public right-of-way and to minimize and reduce impacts to the
Town, its citizens and visitors
WHEREAS, the Town has determined that these amendments will be in the best interests
of the public; and
WHEREAS, pursuant to Chapters 51 and 54 of the Texas Local Government Code, the
Town is authorized to adopt any such ordinances necessary to preserve and protect its
wastewater resources.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, THAT:
SECTION 1
The findings set forth above are incorporated into the body of this Ordinance as if fully set
forth herein.
SECTION 2
From and after the effective date of this Ordinance, existing Article 13.08, "Right -of -Way
Management," of Chapter 13, "Utilities," of the Code of Ordinances of the Town of Prosper, Texas,
is hereby repealed and replaced with a new Article 13.08, "Right -of -Way Management, to read as
follows:
"ARTICLE 13.08. RIGHT-OF-WAY MANAGEMENT
DIVISION 1. GENERALLY
Sec.13.08.001 Administration.
The Town Manager shall appoint a right-of-way (ROW) Manager, who is the principal town
official responsible for the administration of the ROW, ROW permits, the regulation of same and
ordinances related thereto. The ROW Manager may delegate any or all of the duties hereunder.
The ROW Manager shall have the duties, responsibilities and authority as specified for the ROW
Manager stated herein.
Sec. 13.08.002 Definitions.
The following definitions apply in this article. The terms, phrases, words, abbreviations and
their derivations shall have the same meanings herein. When not inconsistent with the context,
words used in the present tense include the future; words in plural number include the singular
number, and words in the singular include the plural. The word "shall" is mandatory and not merely
permissive.
Abandoned facilities means facilities no longer in service or physically disconnected from the
operating facilities, or from any other facilities, or from any other facilities that are in use or that
still carry service.
Administration fee means the fee charged by the town to recover its costs incurred for ROW
management; including, but not limited to, costs associated with registering applicants; issuing,
processing, and verifying ROW permit applications; inspecting job sites and restoration
improvements; determining the adequacy of the ROW restoration; revoking ROW permits, and
other costs the town may incur in implementing the provisions of this article.
Applicant means an owner or authorized agent of an owner, who submits an application for
a permit under the provisions of this article.
Area of influence means area around a utility excavation where the pavement and sub -grade
is impacted by the excavation and is subject to more rapid deterioration due to the trench
excavation.
Backfill:
(1) The placement of new dirt, fill, or other material to refill an excavation; or
(2) The return of excavated dirt, fill or other material to an excavation.
Certificated telecommunications provider or CTP means a person who has been issued a
certificate of convenience and necessity, certificate of operating authority, or service provider
certificate of operating authority by the state public utility commission or "PUC" to offer local
exchange telephone service or a person who provides voice service as defined by V.T.C.A., Local
Government Code Ch. 283 or "the act."
Collector Street means any roadway or street classified on the town thoroughfare plan, as it
exists or may be amended, as a collector.
Compaction means consolidating backfill material in a trench to prevent future settlement.
Comprehensive plan means the town comprehensive plan, as it exists or may be amended.
Ordinance No. 2024-12, Page 2
Construction means boring, the breaking of pavement, or the installation, modification,
upgrade, maintenance, removal, or similar activities, within the ROW. The definition includes, but
is not limited to, providing primary service, restoration, or maintenance of existing facilities within
the ROW.
Contractor means any public or private person, subcontractor or organization, other than the
town.
Day means business day unless otherwise specified
Department means the Town Department of Engineering Services or a successor
department that is responsible for management of the ROW and roadway infrastructure.
Emergency operations means those operations and repairs necessary to prevent damage
or injury to the health or safety of the public or any person and the work necessary to address or
prevent an immediate service interruption. Upgrading of facilities, new service installation and
neighborhood improvement projects are not emergency operations.
Excavation means any activity that removes or otherwise disturbs soil, pavement, driveways,
curbs, or sidewalks in the ROW and does not include landscaping activity unless the activity
removes or disturbs the paved portion of the ROW.
Facilities means the equipment, and property, including but not limited to, lines, poles, mains,
pipes, conduits, ducts, cables, valves, manholes, hand holes and wires located under, on, or
above the surface of the ground within the ROW, and related facilities and equipment used or
useful for the provision of utility services.
FCC means the Federal Communications Commission.
Governing body means the Mayor and the Town Council of the town.
Governmental entity means any county, township, city, town, village, school district, library
district, road district, drainage or levee district, sewer district, water district, fire district or other
municipal corporation, quasi -municipal corporation or political subdivision of the state or of any
other state of the United States and any agency or instrumentality of the state or of any other
state of the United States.
Holiday means days in which town offices are closed in observance of a holiday.
Local Street means roadway or street not classified on the town comprehensive plan, as it
exists or may be amended, as a highway toll -way, major thoroughfare, minor thoroughfare or
collector.
Main line means lines other than service connections used to convey the ROW user's
product.
Major project means any project, which includes 500 or more linear feet of excavation or any
excavation under pavement. Network node means equipment at a fixed location that enables
wireless communications between user equipment and a communication network.
Network provider means a wireless service provider, or a person that does not provide
wireless services and that is not an electric utility but builds or installs, on behalf of a wireless
service provider, network nodes or node support poles or any other structure that supports or is
capable of supporting a network node.
Ordinance No. 2024-12, Page 3
Pavement means streets containing Portland cement, asphalt, brick or other rigid or
semirigid material that covers the surface of a street and their underlying sub -grade and base.
Permit means permit issued under this article authorizing excavation in the ROW.
Permittee means person or ROW user to whom a permit is issued to excavate a ROW.
Perpendicular excavations means any trench with a centerline that when projected toward
the centerline of the street, the two lines intersect at an angle of 90 degrees.
Person means any person, company, partnership, contractor, subcontractor, agency or other
public or private entity, excepting the town.
Public inconvenience penalty means penalty assessed to the ROW user who denies the
public the use of public property for a time period greater than allowed by this article.
PUCT means public utility commission of the state.
Registration means the annual application process of the ROW user to use any portion of
the ROW.
Registration certificate means the document provided by the town, annually, upon approval
of the application for registration.
Repair means the temporary or permanent construction work necessary to make the ROW
usable.
Repair area means area around excavation where the pavement and sub -grade is impacted
by an excavation.
Restoration means the process by which an excavated ROW and surrounding area,
including, but not limited to, pavement and foundation structures, ground cover, landscaping, and
monuments are returned to the same condition, or better than that which existed before the
commencement of the work.
Resurfacing means any repaving, overlay, seal or reconstruction which creates a new
pavement surface over the entire width of the street, excluding crack seals and localized base
and pavement repairs.
Right-of-way or public right-of-way (ROM means the surface of, and the space above and
below, any street, road, highway, freeway, toll -way, lane, path, drainage way, channel, fee
interest, public way or place, sidewalk, alley, boulevard, parkway, drive, fire lane or other
easement now or hereafter held by the town or over which the town exercises any rights of
management or control and shall include, but not be limited to, all easements now held, or
hereafter held, by the town, but shall specifically exclude private property.
Right-of-way (ROVI0 Inspector means person assigned by the ROW Manager to oversee
inspections of work conducted within the town's ROW.
Right-of-way (ROVV9 Manager means the ROW Manager of the town, or his/her designee.
Right-of-way (ROVI9 user means person, its successors and assigns, that uses the ROW for
purposes of work, excavation, provision of services, or installing, constructing, maintaining, or
repairing facilities thereon, including, but not limited to, landowners and service providers.
Routine service operation means a work activity that makes no material change to the
facilities and does not disrupt traffic.
Ordinance No. 2024-12, Page 4
Service means a commodity provided to a person by means of a delivery system that is
comprised of facilities located or to be located in the ROW, including, but not limited to, gas,
telephone, cable television, internet services, open video systems, alarm systems, steam, electric,
water, telegraph, data transmission, petroleum pipelines, or sanitary sewage.
Service connection means the line that serves no more than two individual customers or two
meter banks.
Street means the paved portion of the ROW that has been constructed, reconstructed, or
resurfaced with concrete or asphalt or some other surface.
Surface -mounted markers means any sign, post or other marker, which rises above the
surface of the ground to show the location of an underground utility.
Temporary Lines means facilities that are installed temporarily above ground (or can be
below) and not in their ultimate location. This can be as a result of an existing main line being hit
or damaged by other construction, and a temporary solution to re-establish the connection is
made until a more permanent fix is complete. Temporary lines can also be individual connections
to individual residence (typically above ground) until a permanent connection is placed
underground.
Thoroughfare means any roadway or street classified on the town comprehensive plan, as it
exists or may be amended, as a highway, toll -way, major thoroughfare or minor thoroughfare.
TMUTCD means the state manual on uniform traffic -control devices, as it exists or may be
amended.
Town. The town and the town's officers and employees.
Town project means the construction, location, maintenance, relocation, alteration,
improvement, repair, removal or other work performed by the town, or its designee, in the public
ROW, on any town utilities, on any town facilities, in pursuant of its governmental functions or for
the benefit of the public.
Town utilities means any water, sewer or drainage line owned and operated by the town, the
North Texas Municipal Water District (NTMWD), the Upper Trinity Regional Water District
(UTRWD), or any other utility district providing water or sewer service to the town.
Traffic -control representative means the designated representative of the ROW user who is
responsible for work zone safety and compliance with TMUTCD. The ROW user shall ensure
such person has adequate training, knowledge and authority to perform the responsibilities listed
above.
Transport facility means each transmission path physically within a public ROW, extending
with a physical line from a network node directly to the network, for the purpose of providing
backhaul for network nodes.
Trench means excavation deeper than 24 inches. This shall include linear trenches, holes,
pits, etc.
Underground Facility Damage Protection Safety Act means the V.T.C.A. Utility Code §
251.001 et seq., as it exists or may be amended.
Ordinance No. 2024-12, Page 5
Utility means any privately or publicly owned entity which uses ROW to furnish the public
any general public service, including, without limitation, sanitary sewer, gas, electricity, water,
traffic management, streetlights, fiber communications, telephone, petroleum products, telegraph,
heat, steam or chilled water, together with the equipment, structures, and appurtenances
belonging to such entity and located within and near the ROW. Poles are regulated herein only
as specifically set forth in this article.
White lining means marking the excavation site with white washable marking paint or flags
prior to requesting a utility locate in order to further identify the site.
Wireless service means any service using licensed or unlicensed wireless spectrum,
including the use of wi-fi, whether at a fixed location or mobile, provided to the public using a
network node.
Wireless service provider means a person that provides wireless services to the public.
Sec. 13.08.003 Penalty.
This is not a traffic ordinance authorized under the Texas Motor Vehicle Statutes, and is not
governed by the penal provision thereunder. Any person, firm, corporation or business entity
violating this article shall be deemed guilty of a misdemeanor, and upon conviction thereof shall
be subject to a fine not to exceed the sum of $500.00, unless the violation relates to fire safety or
public health and sanitation, including dumping and refuse, in which the fine shall not exceed the
sum of $2,000.00. Each continuing day's violation under this article shall constitute a separate
offense. The penal provisions imposed under this article shall not preclude the town from filing
suit to enjoin the violation. The town retains all legal rights and remedies available to it pursuant
to local, state and federal law.
(a) A person commits an offense if they:
(1) Perform, authorize, or supervise construction without a valid permit issued under this
article;
(2) Fail to comply with restrictions or requirements of a permit issued under this article;
(3) Fail to comply with a lawful order or regulation of the ROW Manager issued pursuant
to this article; or
(4) Violate other provisions of this article.
(b) A person commits an offense if, in connection with the performance of construction in the
public ROW: they
(1) Damage the public ROW beyond what is incidental or necessary to the performance of
the construction;
(2) Damage public or private facilities within the public ROW;
(3) Fail to immediately clear debris associated with construction from a public ROW after
construction is complete; or
(4) Fail to stabilize any disturbed area from erosion within 14 days after construction is
completed, unless an alternative timeframe is approved by the ROW Manager.
Ordinance No. 2024-12, Page 6
(c) The ROW Inspector will provide the contractor with a Notice of Violation Form that identifies
the violation(s) and corrective measures to be taken by a certain date as specified by the
ROW Manager. The contractor is required to acknowledge receipt on the Notice of Violation
Form.
(d) A culpable mental state is not required to prove an offense under this article. A person who
violates a provision of this article is guilty of a separate offense for each day or portion of a
day during which the violation is committed, continued, or authorized or directed. An offense
under this article is punishable by a fine of $1.00 to $2,000.00.
(e) Prior to initiation of civil litigation, the public service provider, or any other person, who has
violated a provision of this article, shall be given the opportunity to correct the violation within
a time frame specified by the ROW Manager. The subsection does not prohibit the ROW
Manager of the town from taking enforcement action as to past or present violations of this
article, notwithstanding their correction.
(f) If a permitee is in violation of this article, no additional permits will be granted to the public
service provider and/or permitee until the offense has been corrected and any direct or
indirect costs incurred by the town have been reimbursed.
Sec. 13.08.004 Existing franchise.
If any provision of this article conflicts with an existing franchise agreement, the franchise
agreement shall prevail until the expiration thereof.
Sec. 13.08.005 Bridge weight limit violation.
It shall be unlawful for the operator of any vehicle to drive, haul, push or tow, wholly or
partially, any load upon a posted weight limited bridge, which collectively exceeds the officially
designated and posted maximum bridge weight, whether or not all load -bearing wheels travel on
the bridge.
Sec. 13.08.006 Utility coordination committee.
Each utility shall name a utility coordinator who shall participate in the utility coordination
committee. All ROW users with open permits shall send one representative to the utility
coordination committee meetings at the time and location established by the town. In the event
that a ROW user's representative does not attend two or more meetings within a 12-month period,
the ROW user's permits will be placed on hold until the representative resolves all conflicts
discussed in the unattended meetings and attends the next scheduled meeting.
Sec. 13.08.007 Field utility coordination.
(a) The ROW user shall notify the Department at each of the following times during a project;
and failure to do so constitutes a violation of this article.
(1) Forty-eight hours before the start of construction; either through email and/or text ROW
Inspector must be informed;
(2) Daily Work Location Form;
(3) Potholing; when water main 16 inches or greater is exposed and visible to ROW
Inspector;
Ordinance No. 2024-12, Page 7
(4) When traffic control is required; ROW Inspector must be notified prior to starting work
in the designated area;
(5) Upon completion of the initial backfill; and
(6) Upon completion of the project, an email or text must be sent to the ROW Inspector as
documentation that the job has been completed.
(7) When an existing utility is damaged (water main, water service, sewer main, sewer
service, gas, electric, cable, irrigation) the ROW Inspector must be notified immediately.
In instances where a private water service, sewer service, or irrigation is damaged, the
ROW user must immediately hire a licensed plumber to make a permanent repair.
(b) The ROW user shall make a request for a utility locate in compliance with the Underground
Facility Damage Prevention and Safety Act.
(c) The use of markers, stakes, poles, barricades or other devices shall be used in such a way
to avoid damage to adjoining property. The use of non -washable markers is prohibited.
(d) Compliance with the Texas Utilities Code, as amended, is required at all times.
(e) All barricades, plates, cones, traffic directional equipment and all other traffic -control devices
owned, leased or used by the ROW user and used on or near any excavation shall be clearly
and visibly marked with the name of the permittee and/or ROW user or subcontractor, as
applicable, at all times such equipment is used on or near the ROW. An exception to the
marking requirement may be made in the sole discretion of the ROW Manager in the event
the traffic -control equipment is not owned by the permittee or ROW user.
(f) Locate to the extent of the ROW. The public service provider has the exclusive responsibility
to locate the extent of the public ROW. Acceptance of the plans and issuance of a permit
does not constitute liability of the town's part of any facilities placed on private property. If
facilities/utilities are placed on private property, it is the public service provider's responsibility
to contact the property owner and acquire easements.
(g) The town reserves the right under this article to take the following actions:
(1) Divide larger neighborhood permits into smaller more manageable permits, allowing
bores on no more than 2 streets concurrently. Failure to do so may result in shutdown
of work or temporary hold of permit until the issue has been resolved.
(2) Require ROW user to backfill any open holes (at any time during the scope of work) at
the request of the ROW Inspector. Failure to do so may result in shutdown of work or
temporary hold of permit until the issue has been resolved.
Sec. 13.08.008 Maps and records of registrants.
(a) Within 30 days of passage of this article, each ROW user shall provide the town an accurate
map of their service area. The map shall be in electronic format overlaid over the North
Central Texas Council of Government base digital map. In dual coverage areas, the town
may request additional information to enable identification of ROW users.
(b) Each ROW user must maintain accurate maps and records of its facilities. The town's road
network may be provided in digital format upon request. The ROW user is encouraged to
maintain their system maps geo-referenced to the town's street network, which is on the
North Central Texas Council of Government base digital map. The map should include true
Ordinance No. 2024-12, Page 8
bearings and distances to the nearest established street lines and official monuments, which
shall be accurately described on the map. The ROW user will provide the town with digital
information within 90 days of a request for maps from the town for any user with less than
50 miles of utilities within the town. All other ROW users shall provide the digital information
within one year of the request. Thereafter, the data is to be provided to the town on an annual
basis by January 1.
(c) If the maps and records submitted in response to any request by or requirement of the town
include information expressly designated by the ROW user as a trade secret or other
confidential information protected from disclosure by state law, the town and its agents,
employees, or other representatives may not disclose that information to the public without
the consent of the ROW user, 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 ROW user to designate all matters in its maps and records as confidential or
as trade secrets.
(d) Within 60 days of completion of each new permitted section of a person's facilities, the
person shall supply the town with a completed set of "as -built" drawings for the segment in
a format used in ordinary course of the persons business and as reasonably prescribed by
the town, and allowed by law.
Sec. 13.08.009 Notice.
Notice for purposes of this article shall be made to the town via electronic message (email),
overnight courier (generally used carrier with tracing available) or hand delivery with signed
receipt, facsimile to the department or United States mail return receipt required.
Sec. 13.08.010 Registration.
(a) Nothing in this section relieves a ROW user and/or utility from obtaining a permit under this
article to perform work in the ROW.
(b) In order to protect the public health, safety, and welfare, a utility maintaining or operating
existing facilities in the ROW must register with the ROW Manager in accordance with the
following requirements:
(1) The registration must be on a form furnished by the ROW Manager and made in the
name of the ROW user that owns the facilities.
(2) Registration expires the date the certificate of insurance provided to the town by the
ROW user the registration occurs. If the utility fails to renew registration by that date,
the town will send by certified mail a notice of noncompliance to the address listed on
the registration. If the utility fails to renew registration within 30 calendar days after the
date of sending the notification, the facilities of the utility will be deemed to have been
legally abandoned.
(3) If information provided as part of the registration changes, the utility must inform the
ROW Manager, in writing, not more than 30 days after the date the change occurs.
(4) The utility shall also include the following registration:
Ordinance No. 2024-12, Page 9
(A) The name of the utility using the ROW, including any business name, assumed
name, or trade name the utility operates under or has operated under in the town
within the past five years.
(B) If the utility is a CTP, the certificate number issued by the Texas Public Utility
Commission.
(C) The ordinance number of any franchise or license issued by the town that
authorizes the utility to use the ROW.
(D) The names, addresses and telephone numbers of at least two persons who will be
general, day-to-day contacts for the utility. At least one of the addresses must be
within the Dallas/Fort Worth metropolitan area.
(E) The name and mailing address of the officer or agent designated as the person
authorized to receive service of process on behalf of the utility.
(F) The name, address and telephone number of any contractor or subcontractor, who
will be working in the ROW on behalf of the utility. This list may be amended as
needed by the utility; however, no work shall be performed in the ROW by a
contractor or subcontractor that is not on the list, regardless of whether a permit is
required.
(G) The names and telephone numbers of at least two persons serving as emergency
contacts who can be reached by telephone 24 hours a day, 7 days a week.
(H) Proof of existing insurance that complies with division 4 of this article.
(5) Upon completion of registration, the town will provide the ROW user a registration
certificate valid until the end of the calendar year during which the registration was
completed. The ROW user may make as many photocopies of the registration certificate
as necessary. The ROW user is responsible for ensuring that all contractors, listed in
accordance with subsection (b)(4)(F) above have a copy of the registration certificate
on site when work is being conducted under the provisions of the registration certificate.
Sec. 13.08.011 Traffic handling training.
The ROW user is responsible for work zone safety including, but not limited to, traffic control
through the designated traffic -control representative. The representative is responsible for
compliance with the TMUTCD and the traffic -control plan (if required) at all work zone sites. The
traffic -control representative shall ensure employees on the job site have adequate training. In
instances where traffic control is required, ROW user must contact ROW Inspector to verify traffic
control before work commences. All vehicles must be parked in the direction of travel on one side
of the street.
Sec. 13.08.012 Reporting obligations.
All ROW users shall, upon request, provide proof of any necessary permit, license,
certification, grant, registration, franchise agreement or any other authorization required by any
governmental entity, including, but not limited to, the town, state, or federal government, or
railroad or pipeline company, including a description of the ROW user's intended use of the ROW,
information sufficient to determine whether the ROW user is subject to franchising or licensing by
the town, and information to determine whether the ROW user has applied for and received any
certificate of authority required by the PUCT. The information provided shall be sufficient enough
Ordinance No. 2024-12, Page 10
to determine whether the ROW user has applied for and received any permit or other approvals
required by the FCC. ROW user shall provide all such other information as may be reasonably
required by the town to complete the registration statement.
Sec. 13.08.013 Surface -mounted markers.
Where surface -mounted markers are needed, curb -mounted medallions shall be used
whenever possible.
Sec. 13.08.014 Relocation of facilities for public improvements.
(a) In the exercise of governmental functions, the town has first priority over all uses of the ROW.
The town reserves the right to, among other things, install curbs, gutters, inlets, aprons, traffic
signs or poles, with or without attached flashing lights, traffic signals and other traffic
management devices, light poles, guard rails, sidewalks, conduits, fiber, construct, maintain
and alter town projects, including but not limited to laying water, sewer, drainage, and other
pipelines or cables and conduits, and doing underground and overhead work, and
attachments, restructuring, or changes in street facilities in, across, along, over, or under a
public street, alley or ROW occupied by an agency or ROW user, and to change the curb,
sidewalks, or the grade of streets and any improvements reasonably associated therewith.
(b) The ROW user must relocate its facilities, at its own expense and in accordance with section
13.08.066, prior to the start of construction of a town project or any work described in
subsection (a) above. Failure to comply with this provision shall subject the ROW user to the
enforcement provisions contained herein.
(c) A permit will be required when making facility adjustments in preparation for town projects.
(d) Franchise utilities shall acknowledge in writing when they are not in conflict with ongoing
town projects upon request by the town.
Sec. 13.08.015 Permit required.
It is unlawful for any person, its agents, servants or employees to dig, plow, blast, make cuts,
openings, bore, tunneling, excavate or close lanes on any ROW, locate street, or town easement,
without first having made application and obtained a permit therefor except for as allowed by
section 13.08.016. It is unlawful for any person, its agents, servants or employees to make or
cause to be made any excavation in or under the surface of any ROW for the installation, repair
or removal of any facilities, or for any other purpose without first obtaining from the ROW Manager
a permit in compliance with this article.
(a) Before issuing a permit, the ROW Manager shall have been provided an online application,
on a form furnished by the ROW Manager, setting forth the name and residence or business
address of the applicant; the location and approximate area of the excavation, including its
approximate length and width, and, if the excavation is in a street, whether it is parallel or
transverse to the direction of the travel lanes; and, the purpose of the excavation. The
application form shall include plans prepared in accordance with town specifications. Plans
shall be drawn at a reasonable scale that legibly and accurately show all existing
improvements and proposed work. All proposed work must be shown in heavy or bold type
lines and fonts. If proposed work is in phases or part of another overall drawing, show all
existing and future work in lighter or faded out lines and fonts. If ROW user cannot show
distinctive line weights, the plans shall clearly label the above information using text. When
Ordinance No. 2024-12, Page 11
required by the Texas Engineering Practice Act, as amended, the plans must be sealed by
a professional engineer licensed to practice in the state.
(b) At the time the permit is issued, the applicant shall pay a nonrefundable permit application
fee in an amount as provided for in Division 3 of this article.
(c) The proposed location, depth and other characteristics of any facilities for which the permit
is issued shall be subject to approval of the ROW Manager, and all backfilling, compaction
and pavement restoration performed for any excavation shall comply with the requirements
of this article.
(d) No fee or requirement authorized or imposed pursuant to this article shall be construed to
affect or alter in any way any obligation of public and/or private utilities with facilities installed
in any ROW to relocate the facilities, at no cost to the town, subject to state law, if applicable,
in the event that relocation is required by the town to accommodate a proper governmental
use of the ROW.
(e) Combinations of permits shall be permitted at the sole discretion of the ROW Manager. Fees
shall be assessed based on the excavations permitted.
(f) Subdivision monuments, historical markers, and any other signs or structures with
foundations in the ROW, excluding billboards, are subject to this article.
(g) If no construction has commenced under a permit within 30 calendar days after issuance of
the permit, the permit becomes null and void, and a new permit is required before
construction may be performed in the public ROW. An extension to a permit may be granted
by the ROW Manager only before the permit expires.
(h) Storm water pollution prevention plan. The permittee shall submit with the permit application
two sets of storm water pollution prevention plan in cases where stream crossings are open
cut. The permittee shall contain all sediment within the work area using erosion control
measures and erosion limiting construction techniques as specified in other town ordinances,
including but not limited to any storm water management ordinance contained in state and
federal laws.
Sec. 13.08.016 Exceptions to require permit.
(a) The ROW Manager reserves the right in his/her discretion to require a ROW permit on
service connections. Unless otherwise required by the ROW Manager, service connections
do not require a permit if all of the following conditions are met:
(1) The service connection excavation shall not exceed 4 feet inside the ROW to property
line;
(2) All excavation shall be in accordance with service connection drawings;
(3) The address for the service connection is on the town -provided form, which is submitted
to the ROW Manager via hard copy or email. Work shall not begin until the electronic
form is transmitted to the ROW Manager;
(4) The excavation required is less than 18 inches in depth;
(5) The excavation is no wider than 2 inches or is hand dug; and
(6) The service connection does not require boring.
Ordinance No. 2024-12, Page 12
(b) Irrigation system installation does not require a permit if all of the following conditions are
met:
(1) The work is performed with an existing valid permit issued by the town for the installation
of irrigation.
(2) The excavation shall not exceed 12 inches in depth and no wider than one inch.
(3) The address for the service connection is on the town -provided form, which is submitted
to the ROW Manager via email and is approved. All requests which are not approved
within 48 hours are denied.
(4) Line locates from the town are requested.
Sec. 13.08.017 Permit application.
(a) Application for a ROW permit shall be submitted online in accordance with the procedures
and requirements stated herein and on the town's website. The online application form shall
be accompanied by maps of the existing facilities in the area, to the extent available, and the
location of the proposed facilities, methodology of construction, and proposed start and
completion dates. When the work includes excavation, which will exceed 5 feet in depth, a
trench safety design sealed by a licensed professional engineer shall also accompany the
application, unless otherwise provided by law.
(b) A permit shall only be valid for the area of the ROW specified within the permit. No permittee
may cause any work to be done outside the area specified in the permit, except as provided
herein. Any permittee who determines that an area is greater than that which is specified in
the permit must apply for and receive a new ROW permit.
(c) Applicants may apply jointly for permits to excavate the ROW at the same time and place.
Applicants who apply jointly for a ROW permit may share in the payment of the permit fee.
Applicants must agree among themselves as to the portion each shall pay. The town will
recognize only one point of contact.
(d) Permits will be issued or denied within 5 business days of town receiving a complete
application. Permits shall be valid for the dates specified in the permit. The applicant may
request but is not guaranteed the permit be valid for such longer period as may be necessary
in the circumstances, in advance, as part of the application. The town may approve or deny
the application for such extended permit period. No permittee may commence work before
the permit start date and, except as provided herein, no permittee may continue working
after the end date. If a permittee does not complete the work by the permit end date, the
permittee must apply for and may receive a new ROW permit or a permit extension for
additional time. This supplementary application must be submitted to the town prior to the
permit end date. Applicants are required to attend a pre -construction meeting for major
projects identified by the ROW Manager.
(e) An expedited permit may be requested, and shall be issued or denied within 2 days of
application upon a showing of good cause, as solely determined by the ROW Manager.
(f) If the owner fails to act upon any permit within 30 calendar days of issuance, the permit shall
become invalid, and the owner will be required to obtain a new permit. No permits shall be
transferable.
Ordinance No. 2024-12, Page 13
Sec. 13.08.018 Issuance of permit.
Every person making application for a permit in accordance with the provisions of this article,
and having complied with such provisions, shall be entitled thereto, and, upon filing such
application with the ROW Manager, it shall be his/her duty to issue the permit, when the provisions
of this article have been complied with.
(a) Upon receiving a completed online application for a permit and a plan prepared in accordance
with the town specifications, the ROW Manager's designee shall set forth all requirements,
approve or disapprove the application, sign and return it to applicant. Except only in
emergency excavations, at least one working day prior to the start of work, the applicant shall
notify the ROW Manager the date that the work will commence when traffic -control devices
are necessary on a thoroughfare.
(b) No permit shall be transferable. A permit shall be void unless the excavation to be made
pursuant thereto is commenced within the time stated therein and the work diligently
completed.
(c) Each permit shall state a time period for completion of all the work to be done hereunder.
The ROW Manager may in his/her sole discretion, grant extensions of time.
(d) No person in violation of any requirement of this article shall be issued a permit, nor shall any
contractor or agent apply for or be issued a permit on the person's behalf, until the
outstanding violation(s) is/are corrected or a plan for correction is approved by the ROW
Manager. The ROW Manager is authorized to grant exceptions upon showing of good cause.
The foregoing requirement is in addition to any penalty or remedy for violation that may be
imposed or sought by the town at law or equity.
(e) No work shall be done under any permit issued under this article except as stated in the
permit. If the permit is allowed to expire, the ROW user shall procure a new permit, paying
the applicable fee, prior to proceeding with any such work.
Sec. 13.08.019 Posting of signs.
The ROW user and contractor (if used) shall be identified by 3 feet by 3 feet information
signs on all work requiring a permit. The signs shall state the name and phone number of the
ROW user and contractor (if used). The signs shall be placed in the ROW on a breakaway pole
base on each approach to the location where construction is occurring from the time of the
beginning of work in the ROW and shall continue to be posted at the location during the entire
time the work is occurring. Informational signs shall be posted on the public ROW 100 feet before
the construction location commences and 100 feet thereafter, unless other posting arrangements
are approved or required by the director.
Sec. 13.08.020 Excavation to be under supervision of the ROW Manager.
(a) Any ROW user engaged in making or backfilling any excavation in any ROW shall, at all
times, while such work is in progress, keep at the job location the permit, or a copy thereof,
and shall provide the same, when requested by any authorized town employee. At all times
while the work is in progress, the ROW user shall also maintain, at the job location, a sign,
barricade or other device bearing the ROW user's name and a phone number in which the
ROW user can be reached.
Ordinance No. 2024-12, Page 14
(b) The ROW user shall protect from damage, utility conduits, sewer conduits, water conduits,
lawns, shrubbery, trees, fences, structures, irrigation, sidewalks, streets, signs, streetlights,
or other property at, near or encountered in its work. The ROW user shall determine the
boundary of the ROW.
(c) All excavations and other construction in the streets shall be conducted so as to interfere as
little as practicable with the use of ROW and with the use of private property, in accordance
with any lawful and reasonable direction given by or under the authority of the governing
body of the town pursuant to the policy and regulatory powers of the town necessary to
provide for public convenience. The ROW user shall not trespass upon private property. The
ROW user shall determine the boundary between ROW and private property and place
stakes/markers indicating this boundary to remain in place for the duration of the work.
(d) The town reserves the right to among others, lay, and allow to be laid, electricity, sewer, gas,
water and other pipe lines or cables and facilities, as well as drainage pipes, and channels
and streets, and to perform, and allow to be performed, any underground and overhead
installation or improvement that may be deemed necessary or proper by the governing body
of the town, in, across, along, over or under any ROW or public place occupied by a ROW
user and to change any curb or sidewalk or the grade of any street and to maintain all of the
town's facilities. In allowing such work to be performed by others, the town shall not be liable
to a ROW user for any damage caused by those persons or entities. Nothing herein shall
relieve any third party from responsibility for damages caused to a ROW user by such third
party.
(e) All transmission and distribution structures, lines, equipment and facilities erected by a ROW
user within the town shall be so located as to cause minimum interference with the proper
use of the ROW, and to cause minimum interference with the rights and reasonable
convenience of property owners who join any of said streets. No pole may be placed in an
area prohibited by another section of this article or which interferes with the public's
unimpeded use of the ROW.
(f) If the town requires a ROW user to adapt or conform its facilities, or in any way or manner to
alter, relocate or change its property to enable any other corporation or person, except the
town, to use, or to use with greater convenience, any ROW or public place, the ROW user
shall not be required to make any such changes until such other corporation or person shall
have undertaken, with solvent bond, to reimburse a ROW user for any loss and expense
which will be caused by, or arise out of such removal, change, adaptation, alteration,
conformance or relocation of a ROW user's facilities; provided, however, that the town shall
never be liable for such reimbursement.
(g) During excavations or boring performed within 10 feet of water main 16 inches or greater in
size, potholing of that line must take place. Potholing will require the ROW user to expose
the line so that it is visible and can be inspected by the ROW Inspector. Potholing will be
required every 150 feet along the water main.
Ordinance No. 2024-12, Page 15
Sec. 13.08.021 Registration certificate required.
It is unlawful for any person, its agents, servants or employees to perform construction in the
ROW without first having made either application and obtained a permit therefor or have in
possession a valid registration certificate. A registration certificate may only be used for
construction activities not requiring a permit in accordance with section 13.08.016. These
activities include tree trimming, general maintenance, line work and providing a service
connection from the property line to a customer provided that no excavation is required in the
ROW.
Sec. 13.08.022 Hours of operation for nonemergency work.
(a) Excavation and boring allowed. Excavation and boring shall be conducted between the hours
of 7:00 a.m. to 3:00 p.m. on Monday thru Friday, except on holidays. No excavation or boring
shall be performed on holidays. Excavation and boring will cease at noon the day before a
holiday, or a holiday weekend.
(b) All other work requiring an inspection shall be done between the hours of 7:00 a.m. to 3:00
p.m. on Monday thru Friday, except on holidays. No work shall be performed on holidays.
Excavation and boring will cease at noon the day before a holiday, or a holiday weekend. A
ROW user may work on Saturday subject to the approval of the ROW Manager. The
Saturday inspection fee must be paid prior to noon on Thursday prior to the Saturday in
which the work is to be performed and is nonrefundable.
Sec. 13.08.023 Denial, Suspension, or holding of permit.
A permit may be denied or suspended, or held for any of the following reasons:
(a) Failure to provide proof of a surety bond or liability insurance acceptable to the town or notice
of termination of the same.
(b) Failure to secure a contractor's license or other required license.
(c) Failure to perform in accordance with the requirements of this article.
(d) The excavation would be in a street and not otherwise permitted by this article.
(e) The proposed warning or other traffic -control procedures or equipment do not comply with
the requirements of the TMUTCD or the requirements of the ROW Manager.
(f) The proposed activity would violate any town article or state or federal law, rule, regulation
or statute.
(g) The permit application contains false or misleading information.
(h) The activity would cause a public health or safety hazard.
(i) The ROW user is not authorized within the town.
0) The ROW user is in violation of this article relative to work in progress.
(k) The ROW user has not compensated the town, or is not legally obligated to compensate the
town by contract, by agreement or by law, for using the public property; or the ROW user has
failed to timely make required payments.
Ordinance No. 2024-12, Page 16
(1) A representative of a franchise utility fails to attend two or more utility coordination meetings
within a 12-month period.
(m) The ROW user fails to comply with the construction timelines of the town's projects.
(n) Outstanding invoices or bills will result in denial.
(o) Failure to bury temp lines will result in holding of permits.
(p) Failure to restore a property owner's property to existing conditions or better, including
replacement of any damaged landscaping, sod, irrigation hardscape;_utility service and
pavement.
Sec. 13.08.024 Appeal.
A ROW user that: (1) has been denied registration; (2) has been denied a permit; (3) has
had a permit revoked; or (4) believes that fees imposed are invalid, may have the denial,
revocation, or fee imposition reviewed, upon written request as follows:
(a) If an applicant desires to appeal a decision, the applicant may file a written notice of appeal
with the ROW Manager within 5 business days of the date the decision was rendered. The
notice must state the alternatives available and routes explored, hardship encountered, cost
comparison of other alternatives and a statement of any other significant factors. The ROW
Manager shall provide a written decision within 5 business days. Failure to render a decision
within 5 business days shall constitute a denial.
(b) If a further denial is given, the appellant may thereafter file a written notice of appeal to the
Director of Engineering Services within 5 business days of receipt of the ROW Manager's
written decision. The Director of Engineering Services shall provide a written decision within
5 business days of receipt of an appeal in accordance with this section. Failure to render a
decision within 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
office of the Town Manager within 5 business days of receipt of the Director of Engineering
Services written decision. The Town Manager shall provide a written decision within 5
business days of receipt of an appeal in accordance with this section. Failure to render a
decision within 5 business days shall constitute a denial.
Secs. 13.08.025-13.08.050 Reserved.
DIVISION 2. TECHNICAL SPECIFICATIONS
Sec. 13.08.061 Lawful use of ROW.
(a) The use of the ROW in any manner which violates federal, state, or local laws, or town codes,
article and regulations, including, without limitation, those relating to health, safety, noise,
environmental protection, waste disposal and water and air quality, is prohibited. All
permittees shall provide satisfactory evidence of compliance with the foregoing upon request
of the town.
(b) Permittee shall dispose of all material removed from the ROW and any waste created by
Permittee in compliance with all state, federal and local laws and requirements. Temporary
Ordinance No. 2024-12, Page 17
storage of material may be placed in a pile no higher than 30 inches and not obstruct a
driver's view.
(c) If a permittee excavates any contaminated, regulated or hazardous materials in the ROW,
permittee shall be responsible for environmental assessment, excavation, testing,
transportation and disposal of that material in accordance with applicable law. The permittee
shall promptly notify the town, orally, of the condition within two hours of discovery of any
contaminated, regulated or hazardous materials in the ROW, and within eight hours provide
the aforementioned information to the town in writing. Permittee must consult with and
receive written authorization from the town before undertaking any of the steps/actions set
forth in this subsection.
Sec. 13.08.052 Compliance with safety regulations.
The permittee and ROW user shall comply with all applicable federal, state and local safety
regulations and requirements, including, by example and not limitation, the occupational safety
and health standards for the construction industry.
Sec. 13.08.053 Conformance with the thoroughfare plan.
A ROW user should consult the town's thoroughfare plan (TP) prior to the acquisition of any
interest in real property in the town for the installation or relocation of service lines or other
equipment or facilities along or adjacent to any street, ROW, thoroughfare, highway, or any
proposed street, ROW, highway or thoroughfare to attempt to minimize any future conflict
regarding the location of such facilities. All ROW users are charged at all times with constructive
notice of the TP subsequent to the effective date of this article. The town shall, at a minimum,
have no liability for the value of or loss by a ROW user of any improvements constructed in the
area shown on the TP, except as provided herein. Typical locations of town facilities are depicted
in Figure 1, attached to this Ordinance.
Sec. 13.08.054 Tree trimming and graffiti abatement.
Permission is granted to a ROW user, subject to the requirements of the town's tree
preservation ordinance, as exists or may be amended from time to time, to trim trees upon and
overhanging the ROW, so as to prevent the branches of such trees from coming in contact with
a ROW user's facilities. A ROW permit is required. Appropriate traffic control is also required,
and all ground surfaces must be restored and cleaned from equipment usage. When so directed
by the town, the tree trimming shall be done under the supervision and direction of the town. The
town shall report damage or vandalism to the ROW user's facilities as soon as practicable after
the town discovers or learns of such event. The ROW user shall make the necessary repairs or
restoration, including, but not limited to, cleaning of graffiti, as soon as practicable but not to
exceed 7 days after the ROW user discovers or learns of any misuse, destruction, damage or
vandalism to its facilities. Should the owner, its contractor or agent fail to remove such trimmings
within 24 hours, the town may remove the trimmings or have them removed, and upon receipt of
a bill from the town, the owner shall promptly reimburse the town for all costs incurred within 30
calendar days.
Ordinance No. 2024-12, Page 18
Sec. 13.08.055 Employee communication.
The ROW user shall ensure that there is at least one employee on the job site, during any
type of work activity, who can read, write and speak English fluently. The contractor shall
maintain at all times on the job site a responsible person authorized to receive and relay
instructions from the town.
a) The ROW user shall submit the "Daily Work Location Form" by 9:00 am each day the user
will be working.
b) The ROW inspector will promptly fill out and return the "Notice of Violation Form" after a
violation has occurred.
Sec. 13.08.056 Routing and spatial assignment.
The town reserves the right, in the permit or otherwise, to restrict or determine the route
(pathway) and/or spatial location, whether horizontal, vertical or depth, of any facility and/or
structure or improvement in the ROW. The town reserves the right to reserve space for future
utilities.
Sec. 13.08.057 Commencement and completion.
After obtaining the permit and prior to commencing the work, the permittee shall notify the
ROW Manager, and shall commence and complete all work within the time specified in the permit,
unless an extension of time is granted by the ROW Manager. No work shall commence until
erosion control measures (e.g. silt fence) and required traffic control devices are in place as
required by the ROW permit conditions. If no construction has commenced under a permit within
30 calendar days after issuance of the permit, the permit becomes null and void, and a new permit
is required before construction may be performed in the public ROW. An extension to a permit
may be granted by the ROW Manager only before the permit expires, for an additional 30 days.
Sec. 13.08.058 Notification of affected property owners.
Except in the case of an emergency, whenever excavation is required in the ROW adjacent
to an occupied property, the ROW user shall notify the property owner a minimum of 24 hours
and a maximum of 72 hours in advance of the activity through use of a door hanger, which shall
include the following information:
(a) Door Hangers
(1) Permit number;
(2) Contractor's name and the ROW user, including a contact name and phone number by
which more information regarding the project could be obtained 24 hours a day, 7 days
a week and;
(3) The anticipated duration of the construction work.
(b) Vehicle and Equipment Identification:
(1) This information must be displayed on each vehicle on site and on both sides of the
vehicle in a manner that is legible from a property owner's porch. This shall include
equipment such as bore rigs, excavators, and vac -machines.
Ordinance No. 2024-12, Page 19
(c) If ROW user MUST be on private property at any time during the scope of the work, the ROW
user is required to first get permission from the property owner
Sec. 13.08.059 Safe conduct of work.
Every permittee and ROW user shall prosecute its work diligently and in a good, safe, and
workmanlike manner, and shall safeguard and protect the public, using the street or ROW where
the work is being performed, from accidents or damage by placing barriers, lights and other
sufficient safeguards around all cuts, openings and excavation. All material, implements and tools
stored upon the premises and used in connection with the excavation shall be stored in a safe
and non -hazardous manner. Cones must be placed around all trucks, reels, vac -machines, or any
other equipment that are allowed by the ROW Inspector to be parked in the street.
Sec. 13.08.060 Revocation or suspension of permit.
The town reserves its right, as provided herein, to revoke or suspend any permit, without
refund of the permit fee, in the event of a breach by the permittee of the terms and/or conditions
of the permit, this article and/or any other town ordinance. A breach of the terms of the permit
shall include, but not be limited to any of the following:
(a) The violation of any provision of the permit.
(b) An evasion or attempt to evade any provision of the permit, or the perpetration or attempt to
perpetrate any fraud or deceit upon the town or its citizens.
(c) Any material misrepresentation of any fact in the permit application.
(d) The failure to meet insurance, surety bond or indemnification requirements.
(e) The failure to complete the work as specified in the permit.
(f) The failure to correct a condition indicated on an order issued pursuant to this article.
(g) Repeated traffic -control violation.
(h) Failure to protect facilities or repair facilities damaged in the ROW.
(i) Violation of any part of this article.
0) Recognition by the ROW Manager that a permit was issued in error.
(k) Failing to comply with an order of the ROW Manager on the permit and any other valid permit
held by the ROW user.
(1) Any safety violation or other action that threatens the health, welfare and/or safety of the
public as solely determined by the ROW Manager.
(m) If the ROW Manager determines that the permittee has committed a breach of any law or
condition of the ROW permit, the ROW Manager shall make a written demand upon the
permittee to remedy such violation. Continued violation may be cause for revocation of the
permit or legal action, or both. The ROW Manager may, in his/her discretion, revoke the
permit, provide specifications to cure the breach, or both. Within 5 days of receiving
notification of the breach, permittee shall contact the ROW Manager with a plan, acceptable
to the ROW Manager, for correction of the breach. Permittee's failure to do so or permittee's
failure to timely implement the approved plan shall be cause for revocation of the permit.
Ordinance No. 2024-12, Page 20
(n) A representative of a franchise utility fails to attend two or more utility coordination committee
meetings within a 12-month period.
Sec. 13.08.061 Work not in accordance with permit declared unlawful
(a) It shall be unlawful for any person to make, cause or allow to be made, any excavation, or to
install, cause or allow to be installed any tank, pipe, conduit, duct, tunnel, utility pole or other
utility or appliance in or under the surface of any street, alley, sidewalk, ROW or other public
place, at any location, other than that described in the application for the permit and as shown
on the plans filed with the ROW Manager, and in accordance with the requirements of the
permit. If the circumstances appearing after the excavation is commenced make it impossible
to comply with the permit, the ROW Manager may, in his/her sole discretion, grant a written
waiver to take the circumstances into account.
(b) Failure to comply with requirements set forth in this article or on any permit shall be cause
for revocation of the subject permit and of any other permits held by the same permittee until
the violations have been corrected or the ROW Manager has approved alternative
requirements.
Sec. 13.08.062 Work done without a permit.
No cut, excavation, grading or disturbing of the ROW, in any way, shall be made, other than
excavations necessary for emergency work, without first securing a permit. For an emergency
job, the ROW user must submit a permit within 2 business days after the work is commenced and
clearly label the subject area of the permit as an emergency. No person or ROW user shall, at
any time, open or encumber more of the ROW than shall be reasonably necessary to complete a
project in the most expeditious manner.
Sec. 13.08.063 Cease work.
At any time, the ROW Manager may order the immediate cessation of any work that poses
a threat to the health, safety or well-being of the public. The ROW Manager may revoke the permit
of any permittee in any instance where there is a threat to the health, safety or well-being of the
public.
Sec. 13.08.064 Requirements.
The ROW Manager may issue a written notice to the permittee indicating work that does not
conform to the terms of the permit, applicable standards, conditions, codes or other applicable
regulation. Within 10 days after issuance of written notice, the permittee shall present proof to the
ROW Manager that the violation has been corrected. If such proof has not been presented within
the required time, the ROW Manager may revoke the permit.
Sec. 13.08.065 Location and relocation of facilities.
Subject to applicable federal, state, and local laws, the ROW user shall, upon the request of
the town, which shall be in writing, locate and/or relocate its facilities situated within any ROW, at
no expense to the town, where reasonable and necessary to accommodate any town project. The
written request provided by the town shall state the date by with the relocation by the ROW user
shall be completed and a reasonable amount of time shall be provided by the town. When
relocation is necessitated by federal government requirements, which includes reimbursements
Ordinance No. 2024-12, Page 21
of costs, the town will reimburse applicant for its proportionate share from funds provided to the
town in such reimbursements.
Sec. 13.08.066 Relocation facilities for the town.
In the event the town finds it necessary to move a ROW user's facilities to protect the ROW,
any town utilities and/or street, the town shall notify the local representative of the ROW user.
ROW user shall promptly move or facilitate the relocation of the subject facilities at ROW user's
sole expense.
Sec. 13.08.067 Abandoned facilities.
(a) A ROW user owning abandoned facilities in the ROW shall:
(1) Remove its facilities and repair, at its sole expense, any damage caused by the removal.
The ROW Manager may ailow some or all facilities to remain if the ROW Manager
determines same is in the best interest of the public to do so; or
(2) Provide information satisfactory to the town that the ROW user's obligations for its
facilities in the ROW have been lawfully assumed by another authorized ROW user.
(b) The facilities of the ROW user who fails to comply with this section, and those facilities which
remain unused for two years, shall be deemed to be abandoned unless, within the aforesaid
two-year period, the town receives written confirmation and reasonable evidence, as solely
determined by town, that the ROW user intends to use the facilities. The town may exercise
any remedies and/or rights it has at law or in equity, including, but not limited to, taking
possession of the abandoned facilities or requiring the removal of the facilities by the ROW
user at the ROW user's sole expense.
Sec. 13.08.068 Underground service requirements
Placement of new utility support structures (poles) shall be prohibited for electrical
distribution lines with 60,000 volts and less and all communication utilities, unless otherwise
allowed by an existing franchise agreement between the ROW user and the town or a PUCT tariff.
(This does not prohibit replacing existing poles for maintenance purposes.)
Sec. 13.08.069 Location of poles and conduits.
All poles in the ROW shall be of sound material and straight, and shall not interfere with the
flow of water in any gutter or drain, and shall be placed so as not to unduly interfere with vehicular
and pedestrian travel. All poles in the ROW shall be located within 3 feet of the ROW. Poles with
bases greater than 36 inches in diameter shall not be placed within the ROW. Poles shall not be
placed within the center median of the street. The location and route of all conduits, fiber, cables,
utilities and facilities placed and constructed by a ROW user in the construction and maintenance
of its system in the town shall be subject to the reasonable and proper control, direction and
approval of the town. The specifications in this article modify the provisions of the American
National Standards Institute. Incorporated, the National Electrical Safety Code and such other
codes and standards that are generally accepted by the industry to the extent of any conflict.
Typical placement of poles and anchor guys along curvilinear streets are shown in Figure 2,
attached to this Ordinance. Placement of poles and anchor guys along curvilinear streets shall
comply with town ordinances and regulations.
Ordinance No. 2024-12, Page 22
Sec. 13.08.070 Size and location of aboveground facilities.
The maximum dimensions for utility structures above the ground in the ROW adjacent to
streets are 7 feet long (parallel to the road), 2 feet wide (perpendicular to the road) and 6 feet in
height. For structures 3 feet or less in height, the width may be 44 inches. This does not include
poles. The height of utility structures shall be measured from the lowest grade at any point 18
inches or less from the side of the structure that faces the street to the highest point of the
structure. Utility structures exceeding those dimensions shall not be located in the ROW adjacent
to streets, unless otherwise approved in writing by the ROW Manager. All aboveground facilities
shall be located outside of the corner visibility triangle at all intersections, future intersections and
all driveways. No aboveground facilities may be placed in a parkway that is across from a median
opening.
Sec. 13.08.071 Height of overhead line.
The user shall ensure all overhead lines are constructed and maintained so that the minimum
clearances are in compliance with the National Electrical Code as it exists or may be amended.
Sec. 13.08.072 Attachments to poles.
(a) Nothing shall obligate or restrict a ROW user from exercising its rights to enter into pole
attachment, pole usage, joint ownership or other wire space or facilities agreements with
light and/or power companies or with other wire -using companies authorized to operate
within the town.
(b) A ROW user shall utilize existing pole space, conduit, and other facilities whenever
reasonably and/or economically possible.
(c) Antennas must be mounted to the top of the pole, or flush to the pole near the top, in a screen
that is coated or painted an approved color to match the pole to camouflage the installation.
(d) Equipment, other than antennas, must be in an underground vault. Vaults must be flush to
the ground.
(e) If the existing pole already has more than two existing riser/drops, the pole must be replaced
with a metal pipe and all wires and cables must be run in a conduit inside the pole. The
existing drops will also be relocated inside the new pole and underground entry into the pole
through the foundation is required. When installation will result in two or fewer riser/drops
on the pole, the wires and cables may be installed as a riser/drop in the conduit painted an
approved color.
Sec. 13.08.073 Temporary rearrangement of aerial wires.
The ROW user shall rearrange its transmission media temporarily as necessary to permit
the moving of houses or other bulky structures. The requesting parties shall pay the reasonable
and necessary expense of such temporary rearrangements. The ROW user shall in a reasonable
time frame and reasonable cost, remove its transmission media in connection with the demolition
of unsafe structures, including emergency or ordered demolitions at no cost to the town. The
ROW user may invoice the requesting parties for the cost of this work, where applicable.
Ordinance No. 2024-12, Page 23
Sec. 13.08.074 Street closures.
(a) All lane closures on any thoroughfare or collectors shall comply with TMUTCD, and shall
include a lane closure exhibit to be submitted with the permit to the ROW Manager. The
ROW Manager may require a traffic -control plan. Arrow boards and message boards may
be required for lane closures on thoroughfares and collectors.
(b) Except in an emergency, no thoroughfare or collector street shall be closed on weekdays
during the hours of 6:30 a.m. to 9:00 a.m. and 3:30 p.m. to 7:00 p.m. Every day of the week,
all roadways shall be open to traffic by sunset on the same day as the construction.
(c) All lane closures require twenty-four hours notification of the police and fire departments prior
to closing. Such notification will be made by the ROW Manager.
Sec. 13.08.075 Site maintenance during construction and prior to full restoration.
(a) Erosion control and stormwater management. The ROW user shall be responsible for
stormwater management, erosion control and excavation safety measures that comply with
town, state and federal guidelines. Requirements shall include, but not be limited to,
construction fencing around any excavation that will be left overnight, silt fencing in erosion
areas until reasonable vegetation is established, barricade fencing around open holes, high
erosion areas will require wire -backed silt fencing, and the removal of slurry used when
running boring equipment. Upon request of ROW Manager, the ROW user may be required
to furnish documentation submitted or received from the federal or state government.
(b) Dust control. The ROW user shall ensure that the work is conducted and site maintained to
minimize blowing dust. At any time dust leaves the job site so that it is a nuisance, the work
will stop until measures can be taken to eliminate the dust.
(c) Traffic -control safety. In the event of noncompliance with the TMUTCD, the ROW user shall
be notified of the violation. In the event of continued noncompliance, the ROW Manager may
revoke the permit, in addition to any other remedies available to the town. At any time the
ROW Manager determines the work threatens public safety, he/she may take immediate
action as necessary including but not limited to, stopping all work, or have a third party make
the repairs at the expense of the applicant.
(d) Responsibility for signs, barricades and warning devices. The ROW user working in any
ROW is responsible for the safe movement of traffic, both pedestrian and vehicular, through
the construction area. The ROW user shall meet all requirements for barricading and traffic
control as specified in the TMUTCD.
(1) Only those individuals who are qualified by means of adequate training in safe traffic -
control practices and have a basic understanding of the principles established by
applicable standards and regulations, including without limitation, those in TMUTCD,
may place and maintain the traffic -control devices in a construction area.
(2) The ROW user must either (A) subcontract the barricading to a firm specializing in traffic
control; or (B) submit the qualifications and name(s) of employees to the ROW Manager
for approval prior to the work commencing. The ROW user must also submit a traffic -
control plan for review and approval by a town traffic engineer when required by this
article. All signs and barricades must conform to the requirements of the TMUTCD.
Ordinance No. 2024-12, Page 24
(3) All barricades, plates, and other traffic -control equipment must conform to TMUTCD
specifications and must be inspected and maintained by the traffic -control
representative.
(4) All barricades, plates and other traffic -control equipment must display accurate and
sufficient information including without limitation, the name of the ROW user.
(5) Noncompliance with the TMUTCD shall be cited in writing. In the event of
noncompliance after citation, the ROW Manager may place the necessary devices as
required, and the ROW user shall reimburse the town for all such expenses as well as
$500.00 for noncompliance. Failure to comply with this provision may result in denial of
application for future permits.
(6) All traffic -control devices must be removed immediately upon completion of work.
(7) Streets shall be restored to existing conditions or better within 21 calendar days from
the date that a portion of the street is closed and/or opened to traffic by using a steel
roadway plate unless the ROW Manager grants approval to extend the time period and
affected property.
(e) Duty to barricade. At all times during construction activity, the contractor and/or ROW user,
as applicable, shall place and maintain all necessary and proper barriers and other
safeguards, including without limitation, watchmen certified in accordance with the safety
training described in this article, if necessary, upon and around the work and for the
prevention of accidents, and after daylight hours, shall place, maintain and keep suitable
sufficient lights, in accordance with the TMUTCD.
Sec. 13.08.076 Inspection.
The permittee shall make the worksite accessible to the town, and others as authorized by
law, for inspection at all reasonable times during performance of the work. All boring by a public
service provider along or across a public ROW which contains an existing storm sewer or sanitary
sewer must be checked with a camera upon completion of boring activity. The camera recording
must sufficiently record storm sewer or sanitary sewer, and activity. The camera recording of the
existing storm sewer or sanitary sewer must be completed on the same day the public service
provider completes the boring activity. A copy of the camera recording must be delivered to the
ROW Inspector within 24 hours of completion of the boring activity. In instances where excavation
has taken place the ROW user must notify the ROW Inspector prior to backfill.
Sec. 13.08.077 Materials testing.
The department may require testing of materials used in construction in or near the ROW to
determine conformance with town construction specifications, including, but not limited to,
compaction tests on backfill materials, sub -grade, aggregate base course, Portland concrete (rigid
pavement), asphaltic concrete (flexible pavement) and other construction materials as deemed
necessary by the Department. The ROW user shall, at his expense, hire a testing laboratory with
current accreditation by the American Association for Laboratory Accreditation, American
Association of State Highway and Transportation Officials (AASHTO) or another nationally
recognized accreditation agency that verifies compliance with ASTM E 329 and that demonstrates
the laboratory's capabilities to perform applicable ASTM or AASHTO test procedures, as may be
required.
Ordinance No. 2024-12, Page 25
Sec. 13.08.078 Duties of persons making excavations or creating obstructions.
Any person who shall cause to be made any excavation or obstruction in any street or ROW
shall not allow the same to remain there beyond a 21 calender days or another time period
required by the ROW Manager for the completion of the work and/or removal of the obstruction,
and shall repair the subject portion of such street and/or ROW so as to restore the same to its
condition previous to the making of such excavation or obstruction. It shall be the duty of such
excavators to protect the area while such condition exists and promptly to repair the same so as
to leave the street or ROW in as good condition as before the excavation.
Sec. 13.08.079 Emergency excavations.
Nothing in this article shall be construed to prevent any person maintaining any pipe, conduit
or duct in or under any street, or ROW by virtue of any law, article or permit, from making such
excavation as may be necessary for compliance with law or for the preservation of life or property
when the necessity arises, provided that the person making the excavation shall notify the ROW
Manager within 24 hours. Except as specifically provided otherwise in this article for excavations
authorized by this section, permittee shall be subject to all fees and requirements of this article.
Sec. 13.08.080 Excavation in streets.
Except in case of an emergency, there shall be no excavation in any street without the prior
written approval of the ROW Manager. Any request for a permit to excavate a street shall include
a description of the proposed work and proposed restoration of the area, as well as a statement
of clear and convincing evidence provided to the ROW Manager as to why alternate procedures
cannot or should not be used in lieu of excavating a street. All pavement cuts and repairs shall be
performed by a contractor with experience in street repair work. Any damage to pavement outside
the removal area shall also be repaired subject to approval of the ROW Manager. All streets and
alleys shall be repaired from panel to panel unless otherwise approved in writing by the ROW
manager. All town pavement repairs shall comply with the town's design standards.
(a) Responsibility of excavated area maintenance. A permittee or ROW user shall maintain its
repairs in the ROW for two years from the completion date of any repair. The town reserves
the right to require a maintenance bond on any work that is deemed substantial.
Sec. 13.08.081 ROW restoration requirements.
(a) The work to be done pursuant to the permit and any repair and/or subsequent restoration of
the ROW must be completed within the dates specified in the permit. In the event of
circumstances beyond the control of the permittee or when work is prohibited by
unseasonable or unreasonable conditions, the ROW Manager may, in his/her sole discretion,
extend the dates on receipt of a substantiated supplementary application for a permit
extension.
(b) All earth, materials, sidewalk, pavement, utilities, conduits, crossing, irrigation, landscaping,
monuments, manhole covers, valve covers, meter box lids or improvements of any kind,
which are owned or possessed by the town, and damaged, disturbed, or removed by a ROW
user shall be fully repaired promptly by the ROW user, at its sole expense, to the reasonable
satisfaction of the ROW Manager.
(c) After any excavation, the ROW user shall, at its expense, restore the ROW, trench envelope,
pavement structure and the surrounding area, to the same or better condition than it was
Ordinance No. 2024-12, Page 26
prior to the excavation. The restoration shall be made in accordance with specifications set
forth herein, and the repair shall endure without failure for two years from the completion
date of any repair.
(d) In the event the ROW user fails to restore the ROW in the manner and to the condition
required herein, or fails to satisfactorily and/or timely complete all restoration, the town may,
at its option, serve written notice upon the ROW user that, unless within 5 days after serving
of such notice a satisfactory arrangement can be made for the proper restoration of the ROW
by the ROW user, the town may take over the work and prosecute same to completion, by
contract or otherwise, at the sole expense of the ROW user, and ROW user, and its surety,
shall be liable to the town for any and all cost incurred by the town by reason of such
prosecution and completion including, without limitation, the applicable public inconvenience
penalty. Nothing contained herein shall limit any other remedies available to the town.
(e) If any excavation cannot be backfilled immediately, the ROW user shall securely and
adequately cover the excavation and maintain proper barricades, safety fencing and/or lights
as required; from the time of the opening of the excavation until the excavation is surfaced
and opened for travel.
(f) In all ROW restoration, the ROW user guarantees its work and shall maintain it two years
from the date of completion of any restoration. During the period following completion, the
ROW user shall, in the event of any failure of the restoration, and upon notification from the
ROW Manager, reimburse the town for pavement restoration costs as provided for in this
article. Additionally, the ROW user, in the event of such failure, shall within 48 hours of notice
from the town, repair the subject trench envelope.
(g) The two-year guarantee period shall be applicable to, among others, failure of the pavement
surface as well as failure of the trench envelope. Notwithstanding remediation of the
pavement structure by the town, the ROW user retains repair responsibility at all times during
the guarantee period for the trench envelope. In locations where two or more ROW users
have made repairs in the exact same location, the last ROW user to excavate shall be
responsible for the two-year guarantee in that location, unless the ROW Manager
determines, in his/her sole discretion, that a failure was most likely a result of work performed
by another ROW user. That ROW user shall be responsible for the two-year maintenance
period.
(h) All street excavations shall be perpendicular excavations, unless otherwise approved by the
ROW Manager. Excavations in streets, which are not perpendicular excavations require: (1)
block -to -block and curb -to -curb pavement reconstruction; or (2) other method of repair
approved by the ROW Manager. All repairs shall be equal to or better than those which
existed prior to the commencement of any work.
(i) No trench shall be opened for the purpose of laying pipes, conduits or ducts for a distance
greater than can be backfilled on the same work day before sunset. Any variance from this
requirement must be granted in writing from the ROW Manager prior to work beginning.
Q) Temporary Lines: Upon failure of an owner to perform restoration from the result of installing
a temporary line, and 5 days after written notice has been given to the owner by the town,
and in the event restoration has not been initiated during such five-day period, the town may
repair such portion of the public ROW as may have been disturbed by the owner, its
contractors or agents. Upon receipt of an invoice from the town, the owner will reimburse
the town for the costs so incurred within 30 calendar days from the date of the town invoice.
Ordinance No. 2024-12, Page 27
Sec. 13.08.082 Restoration of pavement.
Unless otherwise specified in the permit, restoration of the pavement of any street, alley,
ROW or other public place shall be performed by the permittee.
(a) No trench shall be opened in any street for the purpose of laying pipes, conduits or ducts
more than 200 feet in advance of the pipe, conduit or ducts being placed in the trench, other
than with the prior written consent of the ROW Manager.
(b) All excavations shall comply with the town construction standards, as amended, and
requirements of this article. Unless otherwise required by town standards, as amended, or if
unusual conditions are encountered, the ROW Manager may require new standards for
compaction, backfill and pavement restoration.
(c) Any excavated pavement, debris and/or other rubble shall be removed, together with any
surplus material, within one working day from the time such material is placed upon the street.
After backfilling is completed, and prior to repaving the cut, the ROW user shall remove all
loose paving material and trim the edges of the excavation at the street surface to the
satisfaction of the ROW Manager.
(d) Whenever any caving occurs in the sidewalks of any excavation, the pavements above such
caving shall be cut away, trench backfilled, compacted and sidewalk pavement restored. In
no case shall any side or lateral tamping fill any void under a pavement.
Sec. 13.08.083 Permanent pavement repairs.
The ROW user will maintain the excavated area until permanent pavement restoration of the
excavated area is complete. The ROW user shall make the final repairs within 7 days on
thoroughfares and collector streets and within 21 days on residential, local and alley streets after
the ROW Manager makes final inspection. Backfill failures shall remain the responsibility of the
ROW user.
Sec. 13.08.084 Substandard repair of pavement of ROW.
In case the pavement or the surface of the street, alley, or ROW in, over or near any
excavation should become depressed, cracked or broken at any time or fails in any way at any
time after the excavation has been made and during the two-year warranty, the ROW user shall
comply with any applicable obligations of this article, including, without limitation, reimbursement
to the town of the cost to restore the street and/or ROW.
Sec. 13.08.085 Failure to complete work within specified time.
In the event any work governed by this article is not completed by the ROW user within the
time required or in accordance with the specifications required herein or by the ROW Manager,
the ROW Manager may cause such work to be performed as is necessary to secure the work
area to a safe and passable condition. The ROW user shall reimburse the town for the costs of
securing the site.
Sec. 13.08.086 Removal and reconstruction where work is defective.
All construction work in the streets, ROW, sidewalks and public places of the town is declared
to be subject to the exclusive control of the town, and whenever, in the sole opinion of the ROW
Manager, any such work shall not have been duly completed within a reasonable time or shall
Ordinance No. 2024-12, Page 28
have been executed in a defective manner, whether because of bad workmanship or materials or
because not true to the lines or grades or specification therefor given to him by the ROW Manager,
then upon written demand or notice from the ROW Manager, such ROW user or contractor shall
promptly remedy, complete and/or remove and reconstruct such incomplete or defective work all
as the ROW Manager may require, and these provisions shall also apply to all repair and
maintenance work. If the contractor or ROW user shall fail or refuse to do so within a reasonable
time to be specified by the ROW Manager, then, if required by the ROW Manager, such work
shall be completed or corrected or removed and wholly or partially reconstructed by the town, in
such a manner as in the opinion of the ROW Manager may be necessary to make such work as
good as originally required, and such work may be done by contract or otherwise, under the
direction of the ROW Manager, and the contractor or ROW user shall reimburse town for any and
all cost incurred by the town performing the work described in this subsection.
Sec. 13.08.087 Cleanup of ROW.
In every case, and at all times, the work of removing from the ROW all obstructions, surplus
materials, debris and waste matter of every description caused by and/or accumulated from the
excavation shall be the sole responsibility of the ROW user. The ROW user shall maintain the
area on and around the excavation and related to the work in a clean, safe, and orderly fashion
at all times during the conduct of the excavation and shall clean the same area upon completion
of the work. Streets shall be cleaned by use of a regenerative air or vacuum street sweeper. All
Traffic Control devices must be removed at the completion of each work day and then re-
established the next working day. The ROW user shall clean the surrounding area, as outlined
above, within one day upon completion and approval of all trench work and pavement restoration
unless the ROW Manager, sufficient reason therefor having been given to his/her satisfaction,
grants a written extension of time.
Sec. 13.08.088 Completion of Work
When the work under permit hereunder is completed, the permittee shall notify the town in
accordance with the requirements placed on the permit. The town will schedule a final walk-
through with the contractor to develop a final punch list of items to be remedied.
Sec. 13.08.089 Effect of article on persons engaged in construction.
Any permit issued prior to the adoption of this article will remain subject to the terms and
conditions of town article and requirements in effect at the time of issuance of the permit and is
not affected by this article, except that, upon expiration or conclusion of the permit, a new or
renewal permit must be obtained in accordance with this article.
Secs. 13.08.090-13.08.130. Reserved_
DIVISION 3. FEES, ENFORCEMENT AND PENALTIES
Sec. 13.08.131 Fees.
The fees in this section shall apply to all ROW users, unless governed by an existing
agreement, such as a franchise agreement with the town.
(a) Permit application fee. There is a permit application fee of $25.00. Permits shall be issued
or denied within 5 days from the town's receipt of the application. There is an expedited
Ordinance No. 2024-12, Page 29
application fee of $250.00 for permits, which shall be issued or denied within 2 days. An
applicant shall pay the fees when a permit is issued. The fees are charged for administration
and input of permit data. An expedited permit may be requested upon a showing of good
cause, including but not limited to, a pending order for service that cannot be met by means
of existing facilities of the ROW user.
(b) Saturday inspection fee. The Saturday inspection fee shall be $150.00 per Saturday.
(c) Permit expiration fee. A fee of $30.00 will be charged for any permit that has not been
extended before its expiration date and for any permit wherein work has not been
completed by the expiration date provided for in the permit.
(d) Electronic maps submittal fee. A fee of $40.00 per hour will be charged for each hour of
labor necessitated by information submitted to the town in hard copy format in lieu of
submittals to the town in electronic format. There is a minimum of two hours.
(e) Registration fee. There is a fee of $100.00 per ROW user per year for processing
registration information fee, which will be collected by town upon registration.
Sec. 13.08.132 Public inconvenience penalty.
Public inconvenience penalties are assessed and calculated from the date of expiration of
the permit until date of completion of work or repair or of final backfill if turned over to the
Department for repair. This penalty shall not exceed and is capped by statutory limits. Public
inconvenience penalties are charged per day as follows:
Type of
Facility
Unit of Cost
(Per Day)
Penalty
31-75 days
79-90 days
90-100 da s
>100 days
1
Sidewalk
Per square ft.
$0.0026
$0.0052
$0.0078
$0.0104
2
Driveway
Per each
$39.00
$78.00
$117.00
1 $156.00
(3)
Metered
traffic lane
"In addition to traffic lane fee
Secs. 13.08.133-13.08.160 Reserved.
DIVISION 4. INDEMNIFICATION, INSURANCE, BONDING AND LIABILITY
Sec. 13.08.161 Liability of ROW user.
To the extent allowed by law, the ROW user shall be liable to the town for any damage or
loss occasioned by any act and/or omission occurring in connection with its excavation, and
subject to state law, the ROW user shall fully indemnify, hold harmless and defend the town, its
council members, officers, employees, agents, representatives and volunteers from and against
any and all suits, actions, judgments, losses, costs, demands, claims, expenses (including
attorney's fees), damages, and liabilities of every kind to which the town, its council members,
officers, employees, agents, representatives and volunteers may be subjected for injury of any
type, death or property damage arising from or connected with any such act and/or omission. The
town shall promptly notify a permittee, or ROW user, at the address set forth in the permit, or last
known address, of any claim, suit or demand served upon the town and alleging negligent or
wrongful conduct by the permittee or ROW user in connection with an excavation.
Ordinance No. 2024-12, Page 30
Sec. 13.08.162 Insurance.
(a) ROW users shall furnish an original completed certificate of insurance to the Department
which shall be completed by an agent authorized to bind the named underwriter(s) and their
company to the coverage, limits, and termination provisions shown thereon, and which shall
furnish and contain all required information referenced or indicated thereon. The original
certificate(s) must have the agent's original signature, including the signer's company
affiliation, title and phone number, and be mailed directly from the agent to the town. The
town shall have no duty to perform under this article until such certificate has been delivered
to the Department. The certificate holder must be the Town of Prosper.
(b) The town reserves the right to review the insurance requirements of this section to modify
insurance coverage and limits when deemed necessary and prudent by the town based upon
changes in statutory law, court decisions, or circumstances surrounding this article, but in no
instance will the town allow modification whereupon the town may incur increased risk.
(c) Subject to the ROW user's right to maintain reasonable deductibles in such amounts as are
approved by the town, ROW users shall obtain and maintain in full force and effect for the
duration of the permit, and any extension thereof, and/or duration of time it maintains facilities
in the public ROW, at the ROW user's sole expense, insurance coverage written on an
occurrence basis, by companies authorized and admitted to do business in the state and
rated A- or better by A.M. Best Company and/or otherwise acceptable to the town, in the
following types and amounts:
Type
Amount
1
Worker's compensation
Statutory
Employer's liability
$500,000/$500,000/$500,000
(2)
Commercial general (public) liability
insurance to include coverage for the
following:
Bodily injury and property damage of
$2,000,000 per occurrence
$5,000,000 general aggregate or its
equivalent in umbrella or excess liability
coverage
A Premises/o erations
B Independent contractors
C) Products/com leted operations
D Contractual liability
E Personal injury
F Ex losion, collapse, underground
(G) Broad form property damage, to include
fire legal liability
(3)'
Business automobile liability
Combined single limit for bodily injury and
property damage of $1,000,000 per
occurrence or its equivalent
A Owned/leased vehicle
B Nonowned vehicles
C Hired vehicles
Ordinance No. 2024-12, Page 31
(4)'
Professional liability (claims made from)
$1,000,000 per claim to pay on behalf of the
insured all sums which the insured shall
become legally obligated to pay as
damages by reason of any act, malpractice,
error or omission in professional services
(5)"
Contractor's pollution liability coverage
$1,000,000 written on a claims made form
with a two-year extended reporting period
(6)"
Pollution liability motor carrier and trucker
Combined single limit for bodily injury and
coverage endorsing the upset, overturn and
property damage of $1,000,000 per
remediation of a load in transport
occurrence written or an occurrence form
" If applicable.
(d) The town shall be entitled, upon request and without expense, to receive copies of the
policies and all endorsements thereto as they apply to the limits required by the town, and
may make a reasonable request for deletion, revision, or modification of particular policy
terms, conditions, limitations or exclusions (except where policy revisions are established by
law or regulation binding upon any party to the policy or the underwriter of such policy). Upon
such request by the town, the ROW user shall exercise reasonable effort to accomplish such
changes in policy coverage, and shall pay the cost thereof.
(e) ROW users shall ensure that all insurance contracts and certificate(s) of insurance contain
the following required provisions:
(1) Name the town and its council members, officers, employees, volunteers, agents and
representatives as additional insured with respect to the operations and activities of, or
on behalf of, the named insured performing in the ROW under provision of this article,
with the exception of the professional liability, workers' compensation and liability policy;
(2) ROW user's insurance shall be deemed primary with respect to any insurance or self-
insurance carried by the town;
(3) Provide for an endorsement that the "other insurance" clause shall not apply to the town
where the town is an additional insured shown on the policy; and
(4) Workers' compensation and employers' liability will provide for a waiver of subrogation
in favor of the town.
(f) ROW user shall notify the town in the event of any notice of cancellation, nonrenewal or
material change in coverage and shall give such notices not less than 30 days prior to the
change, or 10 days' notice for cancellation due to nonpayment of premiums, which notice
must be accompanied by a replacement certificate of insurance. All notices shall be given to
the town at the following address:
ROW Manager
Department of Engineering Services
250 W. First Street
P.O. Box 307
Prosper, TX 75078
Ordinance No. 2024-12, Page 32
(g) Nothing herein contained shall be construed as limiting in any way the extent to which the
ROW user may be held responsible for payments of damages to persons (including death)
or property resulting from the ROW user's, or its subcontractors', performance of the work
performed in the public ROW.
(h) The town -owned utilities shall not be required to provide the insurance specified herein.
(i) With respect to the ROW user's obligation to comply with the requirements for commercial
general (public) liability insurance coverage to include pollution coverage, the town may allow
the ROW user to self -insure upon annual production of evidence that is satisfactory to the
town. With respect to the ROW user's obligation to comply with the requirements for
automobile liability insurance and for workers' compensation insurance, a ROW user may
self -insure, provided the ROW user tenders satisfactory evidence of self-insurance as
contemplated by the State Motor Vehicle Financial Responsibility Law, V.T.C.A.
Transportation Code § 601.124, and the Texas Workers' Compensation Act, V.T.C.A. Labor
Code § 407.001 et seq., as amended.
Sec. 13.08.163 Performance/assurance bond and maintenance bond.
(a) Before a permit shall be issued, the applicant shall execute and deliver to the town, to be
kept on file with the town, a good and sufficient bond of performance or assurance, in the
sum of $10,000.00 to be approved by the town and conditioned that the person making the
application shall promptly adjust, pay and settle all legitimate claims for damages that may
result by reason of carelessness or negligence in the manner of performing such work or by
reason of any defects therein caused or arising from careless, negligent or imperfect
construction thereof, and to hold the town, its council members, officers, employees,
volunteers, agents, and representatives, free and harmless from liability on all such claims
for damages to the performance or assurance bond which shall cover the cost of repairs in
or upon the street, sidewalk or other public place where the work is to be done that may
become necessary by reason of such cut or excavation having been made. The bond shall
be maintained until the work is accepted by the town. With respect to the ROW user's
obligation to comply with the requirements for a performance/assurance bond, the town may,
in the town's sole discretion, allow the ROW user to self -insure such obligation upon
production of evidence that is satisfactory to the town.
(b) Before a permit shall be issued, the applicant shall execute and deliver to the town, to be
kept on file with the town, a good and sufficient maintenance bond, in a sum equal to the
estimated costs of reconstruction of town facilities related to the work the permit was for,
including but not limited to costs of returning streets, sidewalks, ROW and other public
property to its original condition as it existed prior to the work performed by the permittee
and to insure maintenance required by section 13.08.082, be approved by the town and in
favor of the town that indemnifies the town against any repairs that may become necessary
to any part of the work performed in connection with the permit arising from defective
workmanship or materials used therein for a period of two years from the date of the time
period provided for completion of the work in the permit, or as such time may have been
extended by the ROW Manager, whichever is later.
Ordinance No. 2024-12, Page 33
Sec. 13.08.164 Optional continuing bond and deposit.
In lieu of a bond of performance or assurance required for each permit issued under the
performance/assurance bond section of this article, the applicant may maintain a one-time bond
of performance or assurance with the ROW Manager in the sum of $100,000.00 for the purposes
specified in section 13.08.163, and shall have on file, with the town, an approved bond of
performance or assurance in like amount, being then in full force and effect, against which claims
shall not have been presented aggregating more than $100,000.00; provided, further, that section
13.08.163 shall not apply to applications for permits to make cuts, openings or excavations in any
street, plaza or other public place paved under contract with the town, unless the contract of
maintenance and the maintenance bond therefor all have expired. The bond shall be maintained
until the applicant is no longer working in or on the ROWs.
Sec. 13.08.165 Liability of contractor and sureties for maintenance and repair work.
Any defects of workmanship or material relating to work done by an excavator during the
initial project or becoming known, or which should have been known, during the guarantee period
(the two years) shall be known as maintenance or repair work, and both the excavator and the
sureties and/or the contractor's bond shall be fully liable for any default of such contractor under
this section. In the event of a failure in the restoration of an excavation, the ROW user shall, at its
sole expense, have one opportunity to repair, in a timely manner, the section of the restoration
that has failed, which repair shall be in accordance with the standards set forth in this article. In
the event of any subsequent failure of that section of the restoration, the town retains the right
and option to terminate the ROW user's guaranty, upon written notice to the ROW user. In such
event, the ROW user shall reimburse the town for its direct costs associated with the repair of the
failure of the restoration work.
Sec. 13.08.166 When additional security required.
In the event the ROW Manager reasonably believes the contractor's or ROW user's solvency
is threatened, the ROW Manager may, at any time, make written demand on a contractor and/or
ROW user for bonds, and the contractor and/or ROW user shall immediately furnish such
additional bond or bonds to the town.
Sec. 13.08.167 Bonds generally.
All bonds required under this article shall be executed by a surety company holding a license
to do business in the state which is solvent and reputable.
Sec. 13.08.168 Decision of ROW Manager binding on contractor, ROW user and sureties.
If any question arises as to when any work was actually begun or other specific dates, the
decision of the ROW Manager shall be conclusive on the contractor, ROW user, and the sureties
on all such bonds.
Secs. 13.08.169-13.08.190 Reserved.
Ordinance No. 2024-12, Page 34
DIVISION 5. VARIANCES AND EXEMPTIONS
Sec. 13.08.191 Procedure.
A permittee or ROW user may request a variance from any of the requirements of this article
by filing a written request with the ROW Manager stating the requirement and the basis for the
variance. The ROW Manager may reject incomplete variance requests. The applicant shall bear
its own expenses of the application process.
(a) Any request for a variance from any ROW restoration requirement shall be made in writing,
in advance of any contemplated work and shall be accompanied by digitally formatted
detailed plans of the substituted reconstruction and/or repair of the excavated area, if
applicable.
(b) Any request for an exemption and/or variance from any penalty and/or fee, other than as
provided in this article, shall be made in writing, and shall be accompanied by a written
detailed request stating the reasons therefor.
(c) Any request for an exemption and/or variance from any permit, or any other requirement of
this article shall be made in writing, stating in detail all reasons for the requested exemption
and/or variance.
(d) The department shall grant or deny an application for a variance and/or exemption within 10
days of receipt of the application for variance and/or exemption.
(e) Denial of the variance may be appealed in accordance with section 13.08.024 of this article.
Secs. 13.08.192-13.08.220 Reserved.
DIVISION 6. CERTIFIED TELECOMMUNICATIONS PROVIDERS
Sec. 13.08.221 Authority required/nonexclusive use.
The CTP must provide evidence that the CTP has acquired authorization from the PUCT
pursuant to state law, prior to obtaining a permit to use a public ROW. The CTP's right to use and
occupy the public ROW shall not be exclusive and the town shall have the right to exercise its
police powers and manage its public ROW, based on the act and all other state or federal laws.
Sec. 13.08.222 Additional authority required.
The CTP, and any of its affiliates, are not authorized to provide cable television service as a
cable operator or to operate an open video system in the town, but must first obtain a separate
franchise agreement from the town for that purpose, under such terms and conditions as may be
required by law. This section does not preclude the CTP from providing its services to cable
television companies. Unless a cable television operator shows proof of appropriate town
authorization, nothing herein shall authorize the CTP to license, sublicense, lease, sublease or
by any instrument authorize any cable television operator the right to use or utilize the
transmission media or facilities of the CTP.
Ordinance No. 2024-12, Page 35
Sec. 13.08.223 Transfer and notice.
A CTP shall notify the ROW Manager of any sale, transfer, merger or assignment of the
ownership or control of a CTP's business within 30 days of such sale, transfer, merger or
assignment. A CTP shall also maintain and provide current point -of -contact information with the
ROW Manager at all times during which the CTP uses the ROW.
Sec. 13.08.224 Exemption from fees.
CTPs are exempted from the following fees provided for in this article:
(a) Permit application fee, including expedited application fee and permit expiration fee;
(b) Additional permit fee;
(c) Saturday inspection fee; and
(d) Registration fee.
Sec. 13.08.225 Waiver bonds.
Unless determined otherwise by the ROW Manager, a CTP will be exempt from the bonding
requirements of this article, including sections 13.08,163 and 13.08.164, however, in the event
that the ROW Manager determines, based upon reasonable grounds, that a bond is necessary to
protect the public assets, and/or the health and safety of the public, then the ROW Manager may
require that a CTP post a reasonable bond not to exceed $100,000.00. Factors to be considered
in determining reasonable grounds may include, but are not limited to, a conviction for violation
of this article, a general pattern of substandard adherence to the provisions of this article or the
failure to comply with this article. If three years pass from the date that the ROW Manager requires
a bond of a CTP and it has not been necessary for the town to seek performance under the bond,
then a bond will no longer be required pursuant to this section.
Sec. 13.08.226 CTP indemnity.
A CTP shall indemnify the town as specified by V.T.C.A. Local Government Code § 283.057,
as may be amended. A CTP shall be exempt from all indemnity requirements of this article that
are inconsistent with V.T.C.A. Local Government Code § 283.057, as amended.
Secs. 13.08.227-13.08.250 Reserved.
DIVISION 7. NETWORK PROVIDERS
Sec. 13.08.251 Network provider's authority required/nonexclusive use.
A network provider must provide evidence that the network provider has acquired all required
authorization pursuant to state law, prior to obtaining a permit to use public ROW. The network
provider's right to use and occupy the public ROW shall not be exclusive, and the town shall have
the right to exercise its police powers and manage its public ROW, based on the V.T.C.A. Local
Government Code ch. 284, as amended, and all other state or federal laws.
Ordinance No. 2024-12, Page 36
Sec. 13.08.252 Transfer and notice.
A network provider shall notify the ROW Manager of any sale, transfer, merger or assignment
of the ownership or control of a network provider's business within 30 days of such sale, transfer,
merger or assignment. A network provider shall also maintain and provide current point -of -contact
information with the ROW Manager at all times during which the network uses the ROW.
Sec. 13.08.253 Network provider indemnity.
A network provider shall indemnify the town as specified by the Texas Local Government
Code, as may be amended.
Sec. 13.08.254 Compliance with design manual.
A network provider shall comply with the town's design manual, as amended, for the
installation of network nodes and node support poles, as amended by the ROW Manager.
Sec. 13.08.255 Fees.
The following fees shall apply to a network provider's use of the town's ROW, as follows:
(a) Small cell application fee. $500.00 (1-5 network nodes); $250.00 (each additional network
node); $1,000.00 per pole.
(b) Small cell user fee. $250.00 annually for each network node; $20.00 per year for town pole
attachment.
(c) Transport facility monthly user fee. $28.00 multiplied by the number of the network provider's
network nodes located in the public ROW for which the installed transport facilities provide
backhaul, until the time the network provider's payment to the town exceeds its monthly
aggregate per month compensation to the town."
SECTION 3
All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the
extent they are in conflict; but such repeal shall not abate any pending prosecution for violation of
the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced for
any violation if occurring prior to the repeal of the ordinance. Any remaining portions of said
ordinances shall remain in full force and effect.
SECTION 4
If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason
held to be unconstitutional or invalid by a court of competent jurisdiction, such decision shall not
affect the validity of the remaining portions of this Ordinance. The Town of Prosper hereby
declares that it would have passed this Ordinance, and each section, subsection, clause or phrase
thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses,
and phrases be declared unconstitutional.
Ordinance No. 2024-12, Page 37
SECTION 5
This Ordinance shall take effect and be in full force from and after its passage and
publication, as provided by the Revised Civil Statutes of the State of Texas and the Home Rule
Charter of the Town of Prosper, Texas.
DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS ON THIS 9TH DAY OF JANUARY, 2024.
APPROVED:
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David F. Bristol, Mayor
ATTEST:
Michelle Lewis Sirianni, Town Secretary
APPROVED AS TO FORM AND LEGALITY:
Terrence S. Welch, Town Attorney
Ordinance No. 2024-12, Page 38
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