07-009 - O TOWN OF PROSPER, TEXAS ORDINANCE NO. 07 - 009
AN ORDINANCE OF THE TOWN OF PROSPER; ADOPTING RIGHT OF
WAY MANAGEMENT AND PUBLIC EASEMENT REGULATIONS TO
MANAGE CONSTRUCTION, EXCAVATION, AND PLACEMENT OF
UTILITIES IN THE TOWN OF PROSPER, TEXAS; ESTABLISHING
FEES; PROVIDING FOR A PENALTY FOR THE VIOLATION FOR THIS
ORDINANCE; PROVIDING FOR REPEALING, SAVINGS AND
SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE
OF THIS ORDINANCE; 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 Right-of-Way ("ROW") in order to protect the health, safety and
welfare of its citizens; and
WHEREAS, the Town Council of the Town of Prosper, Texas (the "Town Council") has
investigated and determined that Excavations in Town Streets may significantly interfere with
public use of the Streets and resulting in negative impact to public safety, air quality, level of
service on streets and sidewalks, the aesthetics of the community, loss of parking, and business;
and
WHEREAS, the Town Council has further investigated and determined that Excavations
in paved Streets may significantly degrade and shorten the life of the surface of the Streets, and
increase the frequency and cost to the public of requisite resurfacing, maintenance and repair
regardless of the quality of restoration; and
WHEREAS,the Town Council has further investigated and determined that it is desirable
to adopt regulations that will provide the Town greater control over Excavations in Town Streets;
and
WHEREAS, the Town Council has further investigated and determined that substantial
public funds have been invested to build, maintain and repair the Town Streets and Town utilities
and the Town holds these Streets and Town utilities as an asset in trust for its citizens; it is
desirable to adopt regulations to protect the structural integrity of Town Streets and safeguard the
value of the public investment for the benefit of Town residents, by providing incentives to
reduce the number of Excavations in Town Streets. Such incentives will encourage coordination
among Utilities and minimize the number of service disruptions and/or the number of
Excavations where feasible, so as to ensure Excavations are performed to the extent possible in
Streets scheduled for resurfacing within the same or succeeding fiscal year as the Excavation;
and
WHEREAS, the Town Council has further investigated and determined that when a
repair fails in a paved Street that is not scheduled for resurfacing within the same or succeeding
fiscal year, the Excavator should be required to make repairs necessary for proper use and
appearance of the street, as Excavations and faulty repairs cause the greatest damage in newly
surfaced Streets; and
Ordinance Adopting Right-of-Way Management and Public Easement Page 1
WHEREAS, the Town Council has further investigated and determined that entities
making and benefiting from an Excavation in a Town Street also should comply with standards
and requirements for compaction, backfill and pavement restoration and resurfacing that ensures
the best possible restoration of the paved surface over and adjacent to the trench; and
WHEREAS, the Town Council has further investigated and determined that regulation of
Excavations in Town Streets and ROW helps reduce disruption of and interference with public
use of the Streets, helps prevent pavement and Town utility damage, helps maintain the safe
condition of the Streets, protects the public health, safety, welfare, and community aesthetics, is
a valid and appropriate exercise of the Town's police power, and is a municipal responsibility;
and
WHEREAS, the Town Council has further investigated and determined that there is
increasing demand for use of the ROW; and
WHEREAS, the Town Council has further investigated and determined that Chapter 283
of the Texas Local Government Code (the "Act"), sets forth certain regulations governing
municipalities and Certificated Telecommunications Providers ("CTP") and it is the Town's
intent to comply with these regulations; and
WHEREAS, the Town Council has further investigated and determined that the purpose
of the Act is to establish a uniform method of compensation for the use of ROW by CTPs that is
fair and reasonable, administratively simple, competitively neutral (relative to all CTP's),
nondiscriminatory, and consistent relative to the municipalities and CTP's; and
WHEREAS, the Town Council has further investigated and determined that this
Ordinance promotes compliance with the Texas Utilities Code; and
WHEREAS, the Town Council finds that all legal notices, hearings, procedures and
publishing requirements have been performed and completed in the manner and form set forth by
law.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF PROSPER, TEXAS:
SECTION 1: Finding; ingQfppx�d. The findings set forth above are incorporated into
the body of this Ordinance as if fully set forth herein.
SECTION 2: Purpose. This Ordinance provides principles and procedures for the
placement of structures and Facilities, construction, Excavation, encroachments, and work
activities within or upon a ROW and to protect the integrity and service level of Streets,
sidewalks and Town Utility systems and protect the beauty of the community's aesthetics. To
achieve these purposes, it is necessary to require Permits of private users of the ROW and to
establish Permit procedures, rules and regulations for work done within or upon the ROW.
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TABLE OF CONTENTS
ARTICLE 1: GENERAL PROVISIONS Page
Section 1.1: Administration...................................„.,....... ,„....... 6
Section 1.2: Definitions......................„....,,.,.„.„..„..,.,„„.„„.......................„ 6
Section 1.3: Utility Coordination Committee.............................................. 10
Section 1.4: Field Utility Coordination...............................................
Section 1.5: Maps and Records of Registrants................................„
Section 1.6: Notice..................................„............,.,,....,..„..,,„., „„„„,„„„., 12
Section 1.7: Registration................................................M..„.,.. „,.„.„,„...... 12
Section 1.8: Traffic Handling Training.......................................„„.„............ 13
Section 1.9: Reporting Obligations........................................................... 13
Section 1.10: Surface Mounted Markers............................................. 13
Section 1.11: Relocation of Facilities for Public Improvements.......................„,.. 14
Section 1.12: Permit Required...................................,...,...,„..,,.„„,............. 14
Section 1.12.1: Exceptions to Require Permit........................„.........,.,,.. 15
Section 1.13: Permit Application......................................................... 16
Section 1.14: Issuance of Permit...„.„.„„„.„„„........................... .......„„.....„.„.„„„, 17
Section 1.15: Posting of Signs.....................................................„„.„,........ 17
Section 1.16: Excavation to be Under Supervision of the ROW Manager................ 18
Section 1.16.1: Registration Certificate Required................................... 19
Section 1.17: Hours of Operation for Non-Emergency Work...........,,.,......,.„,,,.,„ 19
Section 1.18: Denial of Permit........„.„„,,....,....„........................„..„,.. „.„.,..... 19
Section1.19: Appeal....................................... ....„..„..„„.,..„,„............„..... 20
ARTICLE II: TECHNICAL SPECIFICATIONS
Section 2.1: Lawful Use of ROW.................................„..........,....,...,...... 20
Section 2.2: Compliance with Safety Regulations............................ „..„,....... 21
Section 2.3: Conformance with the Thoroughfare Plan................................„.. 21
Section 2.4: Tree Trimming and Graffiti Abatement........,...„.,........„.............. 21
Section 2.5: Employee Communication.................................................... 21
Section 2.6: Routing and Spatial Assignment.„„. .,.......„..............,..,.„...... 22
Section 2.7: Commencement and Completion............................................. 22
Section 2.8: Notification of Effected Property Owners..........................„,,,„..,. 22
Section 2.9: Safe Conduct of Work. ....... ........... ......... ....._„,, ....„„....... 22
Section 2.10: Revocation or Suspension of Permit........................ ................ 22
Section 2.11: Work Not in Accordance with Permit Declared Unlawful................ 23
Section 2.12: Work Done Without a Permit..................„..........,.....,,.„,..„.,„„.,, 24
Section 2.13: Cease Work................................................„..„..,...„,..„.....„. 24
Section 2.14: Requirements......................a,,....,.„..,..,,.,„„,.„,.,,...............,.., 24
Section 2.15: Location and Relocation of Facilities...................„.........,...a....... 24
Section 2.16: Relocation Facilities for the Town........................................... 24
Section 2.17: Abandoned Facilities.......................................„.,.,.,..,..„.„„..... 24
Ordinance Adopting Right-of-Way Management and Public Easement Page 3
TABLE OF CONTENTS
Section 2.18: Underground Service Requirements................................ ......... 25
Section 2.19: Location of Poles and Conduits............................................... 25
Section 2.20: Size and Location of Above Ground Facilities.............................. 25
Section 2.21: Height of Overhead Line........................................ .....,....,. , 25
Section 2.22: Attachments to Poles..................................................,.,...,,., 26
Section 2.23: Temporary Rearrangement of Aerial Wires............................ .... 26
Section 2.23.1: Street Closures........,,,.............................................. 26
Section 2.24: Site Maintenance During Construction and Prior to Full Restoration.., 26
Section 2.25: Inspection.................................. ............. 28
Section 2.26: Materials Testing................................................................ 28
Section 2.27: Duties of Persons Making Excavations or Creating Obstructions........ 28
Section 2.28: Emergency Excavations.. .................................................... 28
Section 2.29: Excavation in Streets........................................................... 29
Section 2.30: Backfill of Excavated Area....................................,..,...........,, 29
Section 2.31: ROW Restoration Requirements............................................... 30
Section 2.32: Restoration of Pavement......................... 31
Section 2.33: Permanent Pavement Repairs.................................................. 31
Section 2.34: Substandard Repair of Pavement of ROW................................... 32
Section 2.35: Failure to Complete Work Within Specified Time......................... 32
Section 2.36: Removal and Reconstruction Where Work is Defective. ................. 32
Section 2.37: Cleanup of ROW................................................................ 32
Section 2.38: Reporting......................................................................... 32
Section 2.39: Effect of Ordinance on Persons Engaged in Construction................. 33
ARTICLE III: FEES, ENFORCEMENT AND PENALITIES
Section 3.1: Fees for all ROW Users, unless governed by an existing agreement,
such as a franchise agreement with the Town............................... 33
Section 3.2: Public Inconvenience Penalty................................................. 34
Section 3.3: Clean Up Costs,... .....,,. ,...........................,,..........,........., 34
ARTICLE IV : INDEMNIFICA"I"'ION INSIIANCF1, BONDING AND LIABILITY
Section 4.1: Liability of ROW User..................................................„..,,,. 34
Section 4.2: Insurance......................................................................... 34
Section 4.3: Performance/Assurance Bond................................................. 37
Section 4.4: Optional Continuing Bond and Deposit..................,..........,.,,..,,,, 38
Section 4.5: Liability of Contractor and Sureties for Maintenance and Repair
Work................................................. ............................ 38
Section 4.6: When Additional Security Required.......................................... 38
Section 4.7: Decision of ROW Manager Binding on Contractor, ROW User and
Sureties......,.....,..,...,.................... ......................., ............ 39
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TABLE OF CONTENTS
ARTICLE V: VARIANCES AND EXEMPTIONS
Section 5.1: Variance/Exemptions.......................................................... 39
ARTICLE VI: CERTIFIED TELECOMM PROVIDERS
Section 6.1: Certificated Telecommunications Providers Authority
Required/Non-Exclusive Use................................................. 39
Section 6.2: Additional Authority Required.................... ... ...... 40
Section6.3: Transfer and Notice........................ ... ...,, ,.,..........,..,..... 40
Section 6.4: Exemption from Fees......—............., .....,...................,.,,.....,. 40
Section 6.5: Waiver Bonds................................................................... 40
Section 6.6: CTP Indemnity.................................................................. 41
ARTICLE VII: MISCELLANEOUS
Section 7.1: Bridge Weight Limit Violation............................................... 41
Section 7.2: Penalty Provision........................................w,....................... 41
Section 7.3: Savings/Repealing Clause........................................ ............ 41
Section 7.4: Existing Franchise........................................... .................. 41
Section 7.5: Severability................................................................... 41
Section 7.6: Effective Date................................................................... 42
Ordinance Adopting Right-of-Way Management and Public Easement Page 5
ARTICLE I
GENERAL PROVISIONS
SECTION 1.1: 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.
SECTION 1.2: Definitions. The following definitions apply in this Ordinance. 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 Ordinance.
Applicant means an owner or authorized agent of an owner, who submits an application
for a Permit under the provisions of this Ordinance.
Area of Influence means that area around a Utility Excavation where the pavement and
subgrade is impacted by the Excavation and is subject to more rapid deterioration due to
the trench Excavation.
Backfill means the following:
A. the placement of new dirt, fill, or other material to refill an Excavation; or
B. the return of excavated dirt, fill or other material to an Excavation.
Certified 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 Texas Public Utility Commission or
"PUC" to offer local exchange telephone service as defined by Section 283 of the Local
Government Code or"the Act".
Collector Street means any roadway or Street classified on the Town of Prosper's
Thoroughfare Plan, as it exists or may be amended, as a collector.
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Compaction refers to consolidating backfill material in a trench to prevent future
settlement.
Comprehensive Plan means the Town of Prosper's Comprehensive Plan, as it exists or
may be amended.
Contractor means any public or private Person, subcontractor or organization, other than
the Town of Prosper, Texas.
Construction means boring, the breaking of pavement, or the installation, modification,
upgrade, maintenance, removal, or similar activities, within the right-of-way. The
definition includes, but is not limited to, providing primary service, restoration, or
maintenance of existing facilities within the ROW.
Day means business day unless otherwise specified.
Department means the Town of Prosper Department of Public Works or a successor
department that is responsible for management of the ROW and roadway infrastructure.
Emergency operations are defined as 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, man holes, 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 of Prosper, Texas.
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 of Texas or of any other state of the United States and any
agency or instrumentality of the State of Texas or of any other state of the United States.
Holiday shall refer to days in which Town offices are closed in observance of a holiday.
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Local Street means any roadway or Street not classified on the Town of Prosper's
Comprehensive Plan, as it exists or may be amended, as a Highway / Tollway, Major
Thoroughfare, Minor Thoroughfare or Collector.
Main Line shall refer to lines other than service connections used to convey the ROW
User's product.
Major Project means any project, which includes three hundred (300) or more linear feet
of Excavation or any Excavation under pavement.
Pavement shall refer to Streets containing Portland cement, asphalt, brick or other rigid
or semi-rigid material that covers the surface of a Street and their underlying sub grade
and base.
Permit means a Permit issued under this Ordinance authorizing Excavation in the ROW.
Permittee means any Person or ROW User to whom a Permit is issued to excavate a
ROW.
Person means any person, company, partnership, contractor, subcontractor, agency or
other public or private entity, excepting the Town.
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 ninety (90)
degrees.
Public Inconvenience Penalty shall refer to a penalty assessed to the ROW User who
denies the public the use of public property for a time period greater than allowed by this
Ordinance.
PUCT means the Public Utility Commission of Texas.
Registration means the annual application process of the ROW User to use any portion of
the ROW.
Registration Certificate shall refer to 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 useable.
Repair Area means that area around Excavation where the pavement and subgrade is
impacted by an Excavation.
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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 (ROW) means the surface of, and the space above
and below, any Street, road, highway, freeway, tollway, 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 (ROW) Manager as used herein shall mean the ROW Manager of the
Town of Prosper, or his/her designee.
Right-of-Way (ROW) User means a 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.
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 shall refer to the line that serves no more than two (2) individual
customers or two (2) 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 refers to any sign, post or other marker, which rises above the
surface of the ground to show the location of an underground utility.
Thoroughfare means any roadway or Street classified on the Town of Prosper's
Comprehensive Plan, as it exists or may be amended, as a Highway, Tollway, Major
Thoroughfare or Minor Thoroughfare.
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TMUTCD shall mean the Texas Manual on Uniform Traffic Control Devices, as it exists
or maybe amended.
Town as used herein shall mean the Town of Prosper, Texas 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 Right-of-Way, 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
of Prosper, 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 shall refer to 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.
Trench shall refer to Excavation deeper than twenty-four (24) inches. This shall include
linear trenches, holes, pits and etc.
Underground Facility Damage Protection Safety Act shall refer to the Texas Utility
Code §251.001 et seq., as it exists or may be amended.
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, 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 Ordinance.
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.
SEC"ICON 1.3: L ti1itYL-C ordination Conirnittee. Each Utility shall name a Utility
Coordinator who shall participate in the Utility Coordination Committee. All ROW Users with
open Permits shall send one (1) representative to the Utility Coordination Committee Meetings at
the time and location established by the Town.
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SEWTION IA: H&I Utility Coordinatioij. The ROW User shall notify the Department
at each of the following times during a project: (a) forty-eight (48) hours before the start of
construction; (b) upon completion of the initial backfill; and (c) upon completion of the project.
The ROW User shall make a request for a Utility locate in conipliance with the Underground
L7, litv Daniage l�"reventioii and Safety Act.
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.
Compliance with the Texas Utilities Code, as amended, is required at all times.
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.
SECTION 1.5.: Maps and Records qfjf�c xistrants. Within thirty (30) days of passage of
this Ordinance, 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.
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 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 ninety (90) days of a request for maps from the Town for any user with less than fifty (50)
miles of utilities within the Town. All other ROW Users shall provide the digital information
within one (1) year of the request. Thereafter, the data is to be provided to the Town on an
annual basis by January 1.
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.
Ordinance Adopting Right-of-Way Management and Public Easement Page 11
SECTIO 1.6: Notice. Notice for purposes of this Ordinance shall be made to the Town
via Electronic Message (e-mail), 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.
SECTION 1.7: Il e istration.
A. Nothing in this section relieves a ROW User and/or Utility from obtaining a
Permit under this Ordinance 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:
I. 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 December 31 of the year 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 thirty (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 thirty (30) days
after the date the change occurs.
4. The Utility shall also include the following Registration:
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 (5) 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 (2)
persons who will be general, day-to-day contacts for the Utility.
At least one (1) of the addresses must be within the Dallas/Fort
Worth metropolitan area.
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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 (2) persons
serving as emergency contacts who can be reached by telephone
twenty-four (24) hours a day, seven(7) days a week.
h. Proof of existing insurance that complies with Article IV of this
Ordinance.
C. 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 paragraph (13)(4)(f) above
have a copy of the Registration Certificate on site when work is being conducted
under the provisions of the Registration Certificate.
SECTION' 1. : Traffic Handling "I raining; 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.
SECTION 1.9: Reporting., t bli ations. 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 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.
SECTION 1.10: Surface Mounted Markers. Where Surface Mounted Markers are
needed,� m.�
curb mounted medallions shall be used whenever possible.
Ordinance Adopting Right-of-Way Management and Public Easement Page 13
SECTION 1.11: 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,
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 2.16, prior to the start of construction of a Town Project or any work
described in paragraph 1.11.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.
SECTION lON l 12 Pernnit l eq aired It is unlawful for any Person, its agents, servants or
employees to dig, plow, blast, make cuts, openings, bore, tunnel, excavate or close lanes on a
Thoroughfare or Collector without first having made application and obtained a Permit therefore
except for as allowed by Section 1.12.1. 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 Ordinance.
A. Before issuing a Permit, the ROW Manager shall have been provided a written
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 required by the Texas Engineering
Practice Act, as amended, the plans must be sealed by a professional engineer
licensed to practice in the State of Texas.
Ordinance Adopting Right-of-Way Management and Public Easement Page 14
B. At the time the Permit issued, the Applicant shall pay a nonrefundable Permit
Application Fee in an amount as provided for in Article III of this Ordinance.
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 Ordinance.
D. No fee or requirement authorized or imposed pursuant to this Ordinance 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 Ordinance.
S FC°1'ION 1.12.1: Exce.)tions to Rea uire Perrnit:
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 four (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 E-Mail. Work shall not
begin until the electronic form is transmitted to the ROW Manager.
4. the Excavation required is less than twenty four(24) inches in depth;
5. the Excavation is no wider than two (2) inches or is hand dug; and
6. the Service Connection does not require boring..
Ordinance Adopting Right-of-Way Management and Public Easement Page 15
B. Irrigation system installation does not require a Permit if all of the following
conditions are met:
L the work is performed with an existing valid Permit issued by the Town
for the installation of irrigation;
2. the Excavation shall not exceed twelve (12) inches in depth and no wider
than an one (1) inch;
3, the address for the Service Connection is on the Town provided form,
which is submitted to the ROW Manager via E-Mail and is approved. All
requests, which are not approved within forty-eight(48) hours, are denied;
4. line locates from the Town are requested.
SECTION 1.13 1'e emit Application Application for a Permit shall be addressed to the
ROW Manager and made on a form furnished for that purpose, stating the extent, dimensions,
character and purpose of the cut or Excavation to be made, the location, by Street and number if
possible, where the work is to be done, and the time in which it is to be completed. The
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 five (5) feet
in depth, a trench safety design sealed by a Licensed Professional Engineer shall also accompany
the application, unless otherwise provided by law.
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.
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 (1)point of contact.
Permits will be issued or denied within five (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 encouraged to request a pre-submission meeting for large projects.
Ordinance Adopting Right-of-Way Management and Public Easement Page 16
An expedited Permit may be requested, and shall be issued or denied within two (2) days
of application upon a showing of good cause, as solely determined by the ROW Manager.
SEC"T"ION 1.14: Issuance of Permit. Every Person making application for a Permit in
accordance with the provisions of this Ordinance, 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 Ordinance have been complied with.
A. Upon receiving a written 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. Excepting only Emergency Excavations, at least one (1) 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 Ordinance shall be issued an
Excavation 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 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 Ordinance 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.
SECTION 1.15: Posting,of S : The ROW User and Contractor (if used) shall be
identified by three (3) feet by three (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 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.
Ordinance Adopting Right-of-Way Management and Public Easement Page 17
SECTION 1.16: Excavation to be Under Supervision of the ROW l liatia'rer. 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 of
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.
The ROW User shall protect from damage, Utility conduits, sewer conduits, water
conduits, lawns, shrubbery, trees, fences, structures, irrigation, sidewalks, Streets, signs, street
lights, or other property at, near or encountered in its work. The ROW User shall determine the
boundary of the ROW.
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.
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.
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 Ordinance.
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.
Ordinance Adopting Right-of-Way Management and Public Easement Page 18
SECTION 1.16.1: Regisuatioti C;erfificate 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 therefore 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 1.12. 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.
SI CTION 1..1.7: 11.ours ofl eration for Note-I mc:gene Work.
A. Excavation and Boring is Allowed. Excavation and boring shall be conducted
between the hours of 7:00 AM to 4:00 PM on Monday thru Friday, except on
holidays. No Excavation or boring shall be performed on Holidays.
B. All other work requiring an inspection shall be done between the hours of 7:00
AM to 4:00 PM on Monday thru Friday, except on Holidays. No work shall be
performed on Holidays. 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 non-refundable.
SECTION 1.18: Denial of Permit. A Permit may be denied or suspended 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 Ordinance.
D. The Excavation would be in a Street and not otherwise permitted by this
Ordinance.
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 Ordinance 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.
Ordinance Adopting Right-of-Way Management and Public Easement Page 19
J. The ROW User is in violation of this Ordinance 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.
SECTION 1.19: Appeal. A ROW User that: (i) has been denied registration; (ii) has
been denied a Permit; (iii) has had a Permit revoked; or (iv) 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 five (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 five (5) business days. Failure to render a decision within
five (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 Public Works within five (5) business days of receipt of
the ROW Manager's written decision. The Director of Public Works shall
provide a written decision within five (5) business days of receipt of an appeal in
accordance with this section. Failure to render a decision within five (5) business
days shall constitute a denial.
C. If a further denial is given, the appellant may thereafter file a written notice of
appeal to the office of the Town Manager within five (5) business days of receipt
of the Director of Public Works written decision. The Town Manager shall
provide a written decision within five (5) business days of receipt of an appeal in
accordance with this section. Failure to render a decision within five (5) business
days shall constitute a denial.
ARTICLE II
TECHNICAL SPECIFICATIONS
SECTION 2.1: Lawful Use of ROW.
A. The use of the ROW in any manner which violates federal, state, or local laws, or
Town codes, Ordinances and regulations, including, without limitation, those
relating to health, safety, noise, environmental protection, waste disposal and
water and air quality, is prohibited. All Permittee shall provide satisfactory
evidence of compliance with the foregoing upon request of the Town.
Ordinance Adopting Right-of-Way Management and Public Easement Page 20
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 storage of material may be placed in a pile no higher
than thirty(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 (2) hours of discovery of any contaminated, regulated or hazardous materials
in the ROW, and within eight (8) 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 paragraph.
SECTION 2.2: Co_pfiance with Safiety Re ulatiom. 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.
SECTION 2.3: Conformance with the Thoroughfare Plan. A ROW User should consult
the Town's Thoroughfare.m.__
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 Ordinance. 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.
SECTION 2.4: Tree 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. 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 seven (7) days after the ROW User discovers or learns of any misuse, destruction,
damage or vandalism to its Facilities.
SECTION 2.5: 1 nioloyee CominUllic tion. The ROW User shall ensure that there is at
least one (1) employee on the job site, during any type of work activity, who can read, write and
speak English fluently.
Ordinance Adopting Right-of-Way Management and Public Easement Page 21
SEC,TJON 2.6: &11 �ipd Spatial Assigpinient. 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.
SECTION 2.7: 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 advance warning signs, markers, cones and barricades are in place.
SECTION 2.8: Notification of Effectedcl Pt 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 of the activity through use of a door hanger, which
shall include the following information:
A, Permit number;
B. identity of the Contractor and the ROW User, including a contact name
and phone number by which more information regarding the project could
be obtained and a twenty four (24) hour a day Emergency phone number;
and
C. the anticipated duration of the construction work.
SECTION 2.9: 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.
SECTION 2.10: Revocation or Stis ension 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 Ordinance 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.
Ordinance Adopting Right-of-Way Management and Public Easement Page 22
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
Ordinance.
G. Repeated traffic control violation.
H. Failure to protect Facilities or repair Facilities damaged in the ROW.
I. Violation of any part of this Ordinance.
J. 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.
L. 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 five (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.
SECTION 2.11: 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.
Ordinance Adopting Right-of-Way Management and Public Easement Page 23
B. Failure to comply with requirements set forth in this Ordinance 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.
SECTION 2.12: 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. 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.
SECTION 2.1m: 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.
I:�cTiON 2.14: l ecadretnents. 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 ten (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.
SECTION 2.15: 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 of costs, the
Town will reimburse Applicant for its proportionate share from funds provided to the Town in
such reimbursements.
SECTION 2.16: 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.
SECTION 2.17: Abandoned Facilities. A ROW User owning Abandoned Facilities in
the ROW shall:
A. remove its Facilities and repair, at its sole expense, any damage caused by the
removal. The ROW Manager may allow some or all Facilities to remain if the
ROW Manager determines same is in the best interest of the public to do so; or
Ordinance Adopting Right-of-Way Management and Public Easement Page 24
B. 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.
The Facilities of the ROW User who fails to comply with this section, and those Facilities
which remain unused for two (2) 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 Users sole expense.
SECTION' 2.18: L)n&mrou d Service Requirements. Placement of new utility support
structures (poles) shall be prohibited for electrical distribution lines with sixty-thousand (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.)
SECTION 2.19: 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. 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. Typical placement of
poles and anchor guys along curvilinear Streets are shown in Figure 2. Replacement of existing
poles does not require a Permit.
SECTION 2.20: Size and Location of Above Ground Facilities. The maximum
ions for utility structures� _--
ures above the ground in the ROW adjacent to Streets are seven (7)
feet long (parallel to the road), two (2) feet wide (perpendicular to the road) and six (6) feet in
height. For structures three (3) feet or less in height, the width may be forty-four (44) inches.
This does not include poles. The height of utility structures shall be measured from the lowest
grade at any point eighteen (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.
SECTION 2.21: Height of(: verhe�td Line. The User shall ensure all overhead lines are
constructed and maintained so that the minimum clearances are in compliance with the National
Electric Code as it exists or may be amended.
Ordinance Adopting Right-of-Way Management and Public Easement Page 25
SECTION 2.22: 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.
SECTION 2.23: °I cnioorary Rearrai *�_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.
SECTION 2.23.1: 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 AM to 9:00 AM and 3:30 PM to 7:00 PM.
Everyday 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 (24) hour notification of the Police and Fire
Departments prior to closing. Such notification will be made by the ROW
Manager.
SECTION 2.24: Site Maintenance During Constriction and Prior to Full Restoration.
A. `.rosion Control and Storm Water Manauement. The ROW User shall be
responsible for storm water management, erosion control and Excavation safety
measures that comply with Town, state and federal guidelines. Requirements
shall include, but not 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, and high erosion areas will
require wire backed silt fencing. Upon request of ROW Manager, the ROW User
may be required to furnish documentation submitted or received from the federal
or state government.
Ordinance Adopting Right-of-Way Management and Public Easement Page 26
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 non-compliance with the TMUTCD, the
ROW User shall be notified of the violation. In the event of continued non-
compliance, 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. Res oe sibility °or Signs, _13a Jc,ades acid Warping 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 (i) subcontract the barricading to a firm
specializing in traffic control; or (ii) 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 when required by this Ordinance. All signs and barricades must
conform to the requirements of the TMUTCD.
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. Non-compliance with the TMUTCD shall be cited in writing. In the event
of non-compliance 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 Five Hundred and No/100 Dollars
Ordinance Adopting Right-of-Way Management and Public Easement Page 27
($500.00) for non-compliance. 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.
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 Ordinance, 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.
SECTION 2.25: Inspection. The Permittee shall make the work-site accessible to the
Town, and others as authorized by law, for inspection at all reasonable times during performance
of the work.
SECTION 2.26: Materials Testing. The Department will 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, subgrade,
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.
SECTION 2.27: Duties of Persons Making Excavations or Crcating Qbstru�. 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 time reasonably sufficient 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.
SECTIO 2.28: I;niereencv Excavations. Nothing in this Ordinance 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, Ordinance 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 twenty
four (24) hours. Except as specifically provided otherwise in this Ordinance for Excavations
authorized by this section, Permittee shall be subject to all fees and requirements of this
Ordinance.
Ordinance Adopting Right-of-Way Management and Public Easement Page 28
SECTION 2.29: 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 is provided to the
ROW Manager as to why alternate procedures can not 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.
A. Excavation in Portland Cement Concrete (I"CC) Pavement, Surface. If the existing
pavement is PCC, the concrete shall be cut first with a saw to a depth of the full
the thickness of the concrete, and the full width of the trench, which shall also cut
the reinforcing steel. A second cut shall be twelve (12) inches parallel to the first
cut to full thickness of the concrete and excavated to undisturbed soil. Further
criteria is set forth in Figure 3.
B. Excavation in Hot Mix As plialt Concrete 1IMAC Ilavemciit Stirf ce. If the
existing pavement is HMAC, the HMAC shall be cut first with a saw to a depth of
the full thickness of the concrete, and the full width of the trench, which shall also
cut the reinforcing steel. A second cut shall be twelve (12) inches parallel to the
first cut to full thickness of the concrete and excavated to undisturbed soil.
Further criteria is set forth in Figure 4.
C. ,lacks ar�cl Bc�µing. Refer to specifications shown in Figure 5.
D. lZesponsibility of =excavated Area Maintenance. A Permittee or ROW User shall
maintain its repairs in the ROW for two (2) years from the completion date of any
repair.
SECTION 2.30: BackfillofExcavated Area,. Open trenches may be temporarily
backfilled for the convenience of the Permittee or the public safety. Traffic bearing plates can be
used temporarily as shown in Figure 6 for pavement areas. At least one (1) hour prior to
beginning permanent backfill operations, the Permittee shall notify the ROW Manager of the
time the backfill will begin.
All excess water and mud shall be removed from the trench prior to backfilling. Any
backfill placed during a rainy period or at other times, where excess water cannot be prevented
from entering the trench, will be considered temporary and shall be removed as soon as weather
Permits. All disturbed base material or any base that has been undermined shall be removed and
discarded. Compaction of all backfill shall be ninety five (95) percent of maximum density with
a moisture content of 0% to +4% of optimum moisture content as determined by ASTM D698
under or near paved surfaces, future paved surfaces or otherwise as determined by ROW
Manager. Outside of pavement surfaces, compaction of all backfill shall be ninety (90) percent
of maximum density with a moisture content of -2% to +4% of optimum moisture content as
determined by ASTM D698.
Ordinance Adopting Right-of-Way Management and Public Easement Page 29
SECTION 2. tiff ROW Restoration Requirernepts. 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.
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.
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 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 (2) years from the completion
date of any repair.
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 five (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 an
completion including, without limitation, the applicable Public Inconvenience Penalty. Nothing
contained herein shall limit any other remedies available to the Town.
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.
In all ROW restoration, the ROW User guarantees its work and shall maintain it two (2)
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
Ordinance. Additionally, the ROW User, in the event of such failure, shall within forty-eight
(48)hours of notice from the Town, repair the subject trench envelope.
The two (2) 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 (2) or more ROW Users
Ordinance Adopting Right-of-Way Management and Public Easement Page 30
have made repairs in the exact same location, the last ROW User to excavate shall be responsible
for the two (2) 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 (2) year maintenance period.
All Street Excavations shall be Perpendicular Excavations, unless otherwise approved by
the ROW Manager. Excavations in Streets, which are not Perpendicular Excavations require (a)
block-to-block and curb-to-curb pavement reconstruction or (b) other method of repair approved
by the ROW Manager. All repairs shall be equal or better than that which existed prior to the
commencement of any work.
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.
SECTION 2.32: 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 two hundred (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 Ordinance. 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 (1) 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.
SECTION 2.33: Permanent Pavement Re aairs. 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 seven (7) days on Thoroughfares and collector
Streets and within fifteen (15) days on residential, local and alley Streets after the ROW Manager
makes final inspection. Backfill failures shall remain the responsibility of the ROW User.
Ordinance Adopting Right-of-Way Management and Public Easement Page 31
SI:
SECTION 2.39: Effect of Ordinance on l ersons lir ra . Any Permit
issued prior to the adoption of this Ordinance will remain subject to the terms and conditions of
Town Ordinances and requirements in effect at the time of issuance of the Permit and is not
affected by this Ordinance, except that, upon expiration or conclusion of the Permit, a new or
renewal Permit must be obtained in accordance with this Ordinance.
ARTICLE III
FEES, ENFORCEMENT AND PENALITIES
SECTION 3.1: The fees in this section shall aDDlv to all ROW lasers unless ,L) erred k)
an existiniz agreement. such as a franchise agreement with the Town.
A. Permit Application Fee. There is a Permit application fee of Twenty-Five
Dollars ($25.00). Permits shall be issued or denied within five (5) days
from Town's receipt of the application. There is an Expedited Application
Fee of Two-Hundred Fifty Dollars ($250.00) for Permits, which shall be
issued or denied within two (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
can not be met by means of existing Facilities of the ROW User.
B. Saturday litsectix Fee. The Saturday inspection fee shall be One
Hundred Fifty Dollars ($150.00)per Saturday.
C. erinit E )iiration Fee. A fee of Thirty Dollars ($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 Ma s Submittal Fee. A fee of Forty Dollars ($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 (2) hours.
E. Reaistration_Fee. There is a fee of One Hundred Dollars ($100.00) per
ROW User per year for processing registration information fee, which will
be collected by Town upon registration.
Ordinance Adopting Right-of-Way Management and Public Easement Page 33
SECTION 3.2: 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:
mmmIT mITITITITre -
Tvpe of FacilityUnit of Cost Penal _...
....................
(Per Day) 31-75 days 79-90 days 90-100 >100 days
days
Square Ft. $0.0026 $0.0052 $0.0078 $0.0104
(a) Sidewalk Per Sq � ... ... ... ........ ._._.�._. ... ............................. ... .....
(b) Driveway Per Each $39.00 $78.00 $117.00 $156.00
......... ._ _... ............. .........
Metered Traffic Lane *In addition to Traffic Lane Fee
SECTION 3.3: Clean UP Costs. The ROW User shall maintain the area on and around
the Excavation and related work in a clean, safe and orderly fashion at all times during conduct
of the Excavation and shall clean the same area upon completion of work.
ARTICLE IV
INDEMNIFICATION, INSURANCE,BONDING AND LIABILITY
SEC11ON 4.1: 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.
SECTION 4.2: 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 Ordinance until such certificate has been
delivered to the Department.
Ordinance Adopting Right-of-Way Management and Public Easement Page 34
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 Ordinance, 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 of Texas 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:
a) Premises/Operations Bodily Injury and Property Damage of
b) Independent Contractors $2,000,000 per occurrence
c) Products/completed operations $5,000,000 General
d) Contractual Liability aggregate or its equivalent in umbrella or
e) Personal Injury excess liability coverage
f) Explosion, collapse, underground
g) Broad form property damage, to
include fire legal liability
*3. Business Automobile Liability Combined Single Limit For Bodily Injury
a) Owned/Leased Vehicle and Property Damage of $1,000,000 per
b) Non-Owned vehicles occurrence or its equivalent
c) Hired vehicles
*4. Professional Liability $1,000,000 per claim to pay on behalf of
(Claims made from) 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 $1,000,000 written on a claims made form
Ordinance Adopting Right-of-Way Management and Public Easement Page 35
Coverage with a two (2) year extended reporting
period
*6. Pollution Liability Motor Carrier & Combined Single Limit for Bodily Injury
Trucker Coverage endorsing the upset, and Property Damage of $1,000,000 per
overturn and remediation of a load in occurrence written or an occurrence form
transport
*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 Ordinance, 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 of Prosper 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, non-
renewal or material change in coverage and shall give such notices not less than
thirty (3 0) days prior to the change, or ten (10) days notice for cancellation due to
non-payment 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:
Ordinance Adopting Right-of-Way Management and Public Easement Page 36
ROW Manager
Department of Public Works
601 W. Fifth Street
P.O. Box 307
Prosper, TX 75078
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, TEx.
TRANSP. CODE §601.124, and the Texas Workers' Compensation Act, TEx. LABOR
CODE §407.001 et seq., as amended.
SECTION 4.3: 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 Ten Thousand Dollars ($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.
Ordinance Adopting Right-of-Way Management and Public Easement Page 37
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 2.3 1, 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 (2) 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.
SECTION 4.4; Q tional 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 Ordinance, the Applicant may maintain a one-time bond of performance or assurance with
the ROW Manager in the sum of One Hundred Thousand Dollars ($100,000.00) for the purposes
specified in Section 4.3, 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 One Hundred Thousand Dollars ($100,000.00);
provided, further, that Section 4.3 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 therefore shall have
expired. The bond shall be maintained until the Applicant is no longer working in or on the
ROWs.
SECTION 4.5: Liability of Contractor and Sureties for Maintenance alld Reel it 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 (2) 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 (1) 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 Ordinance. 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.
SECTION 4.6: When Additional Security Required.uired. 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.
Ordinance Adopting Right-of-Way Management and Public Easement Page 38
SECTION 4.7: Bonds Gengral[y. All bonds required under this Ordinance shall be
executed by a surety company holding a license to do business in the State of Texas which is
solvent and reputable.
SECTION 4.8: Decisioii of Rl4�OW ana ger Binding on Contractor.. ROW lJser and
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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.
ARTICLE V
VARIANCES AND EXEMPTIONS
SES','I'ION 5.l: Varia_nce�`f-xeintions. A Permittee or ROW User may request a variance
from any of the requirements of this Ordinance 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 Ordinance, shall be made in writing, and shall be
accompanied by a written detailed request stating the reasons therefore.
C. Any request for an exemption and/or variance from any Permit, or any other
requirement of this Ordinance 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 ten (10) days of receipt of the application for variance and/or
exemption.
E. Denial of the variance may be appealed in accordance with the Section 1.19 of
this Ordinance.
ARTICLE VI
CERTIFIED TELECOMM PROVIDERS
SECTION 6.1: Certificated Telecommunications Providers ALIthorit F R uiredlNon
Exclusive Use. A CTP must provide evidence that the CTP has acquired authorization from the
Ordinance Adopting Right-of-Way Management and Public Easement Page 39
PUCT pursuant to state law, prior to obtaining a Permit to use 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.
SECTION 6.2: Addition al. ALjtliorit [ex ,. 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.
SECTION 6.3: 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 thirty (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.
SECTION 6.4: Lxc�njj io�g from 1 r s. CTPs are exempted from the following fees
provided for in this Ordinance:
A. Permit Application Fee, including Expedited Application Fee and Permit
Expiration Fee,
B, Additional Permit Fee,
C. Saturday Inspection Fee,
D. Registration Fee.
SECTION 6.5: Waiver Bonds. Unless determined otherwise by the ROW Manager a
CTP will be exempt from the bonding requirements of this Ordinance, including Sections 4.3 and
4.4, 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 One
Hundred Thousand Dollars and No/100 ($100,000.00). Factors to be considered in determining
reasonable grounds may include, but are not limited to, a conviction for violation of this
Ordinance, a general pattern of substandard adherence to the provisions of this Ordinance or the
failure to comply with this Ordinance. If three (3) 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.
Ordinance Adopting Right-of-Way Management and Public Easement Page 40
SECTION 6.6. CTP Indem!it . A CTP shall indemnify the Town as specified by
Section 283.057 of the Texas Local Government Code, as may be amended. A CTP shall be
exempt from all indemnity requirements of this Ordinance that are inconsistent with Section
283.057, Texas Local Government Code, as amended.
ARTICLE VII
MISCELLANEOUS
SI C,I`ION 7.1: Brid ae Wei�jt 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.
51:{,'C" ION 7.2: Penalty Provisim. This is not a traffic ordinance authorized under the
Texas Motor Vehicle Statues, and is not governed by the penal provision hereunder. Any person,
firm, corporation or business entity violating this Ordinance shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be subject to a fine not to exceed the sum of
FIVE HUNDRED DOLLARS ($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 TWO THOUSAND AND NO/100 DOLLARS ($2,000.00). Each continuing day's violation
under this Ordinance shall constitute a separate offense. The penal provisions imposed under
this Ordinance 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.
SIXTION 7.3: Savin gs/Re pealing Clause. 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 7.4: Existinp Franchise. If any provision of this Ordinance conflicts with an
existing franchise agreement, the franchise agreement shall prevail until the expiration thereof.
SECTION 7.5: Sever btli�Y. Should any section, subsection, sentence, clause or phrase
of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it
is expressly provided that any and all remaining portions of this Ordinance shall remain in full
force and effect. The Town 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 or invalid.
Ordinance Adopting Right-of-Way Management and Public Easement Page 41
SECTION 7.6: Effective Date. This Ordinance shall become effective from and after its
adoption and publication as required by law.
DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS on this 23 day of January, 2007.
Char es Niswatngcr, Ma
ATTESTED TO AND
CORRECTLY RECORDED BY:
-------------------
attlew Denton, TRMC
Town Secretary
Date(s) of Publication/259 , Dallas Morning News (Collin County Edition)
...
Ordinance Adopting Right-of-Way Management and Public Easement Page 42
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