19-2439o�nvaNCE No. 19-2439
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS MUNICIPAL HOME-RULE
CORPORATION, REPEALING THE ENTIRETY OF DIVISION 3. - RIGHT-OF-WAY
CONSTRUCTION, ARTICLE II— CONSTRUCTION AND REPAIR, CHAPTER 25 —
STREETS, SIDEWALKS AND PUBLIC PLACES, OF THE CITY'S CODE OF ORDINANCES;
REPEALING THE ENTIRETY OF DIVISION 4. — BARRICADING OF CONSTRUCTION
AND PUBLIC RIGHTS-0E-WAY, ARTICLE II — CONSTRUCTION AND REPAIR,
CHAPTER 25 — STREETS, SIDEWALKS AND PUBLIC PLACES, OF THE CITY'S CODE OF
ORDINANCES; CREATING A NEW DIVISION 3. - RIGHT-OF-WAY CONSTRUCTION
MANAGEMENT, ARTICLE II — CONSTRUCTION AND REPAIR, CHAPTER 25 — STREETS,
SIDEWALKS AND PUBLIC PLACES, OF THE CITY'S CODE OF ORDINANCES;
PROVIDING FOR A PENALTY 1N THE MAXIMUM AMOUNT OF $2,000.00 FOR
VIOLATIONS THEREOF; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN
EFFECTIVE DATE.
WHEREAS, the State of Texas has delegated to each city the fiduciary duty, as a trustee,
to manage the Right-of-Way for the health, safety, and welfare of the public, subject to state law;
and
WHEREAS, the City Council has determined that construction in City of Denton's rights-
of-way significantly interfere with the public use of the streets and result in a negative impact to
public safety, air quality, level of service on streets and sidewalks, and aesthetics of the
community; and
WHEREAS, the City Council has determined that substantial public funds have been
invested to build, maintain and repair the City streets, utilities, and rights-of-way; and
WHEREAS, it is desirable to adopt regulations to manage construction in the City's rights-
of-way to protect and safeguard the public infrastructure; and
WHEREAS, the City Council finds that it is in interest of the public to adopt an ordinance
for the management of construction in the City's rights-of-way; and, NOW THEREFORE, BE
ORDAINED BY THE CITY COUNCIL OF THE CITY OF DENTON, THAT:
SECTION I. Division 3. — Right-of-Way Construction, Article II — Construction and
Repair, Chapter 25 — Streets, Sidewalks and Public Places, of the City of Denton Code of
Ordinances, is repealed in its entirety and replaced with the following:
"DIVISION 3. - RIGHT-OF-WAY CONSTRUCTION MANAGEMENT
Sec. 25-71. Construction; governing law; venue.
This Division shall be construed under and in accordance with the laws of the State of
Texas and the City's Charter, Code of Ordinances, and Development Code ("City Laws") to the
extent that the City Laws are not in conflict with or in violatio�n of the Constitution and laws of the
United States or the State of Texas. All obligations of the parties hereunder are performable in
Denton County, Texas.
Sec. 25-72. Purpose; objectives; applicability.
A. Purpose. This Division provides principles and procedures for the placement of
structures and Facilities, Construction, Excavation, and/or occupation of a Work Area within or
upon any Right-of-Way and to protect the integrity of the street and City Utility System. To
achieve these purposes, it is necessary to require Permits of all users of the Rights-of-Way, except
as prohibited by law, and to establish Permit procedures, rules, and regulations for work done
within or upon the Rights-of-Way.
B. Objectives. Public and private uses of Rights-of-Way for location of Facilities employed
in the provision of public services should, in the interests of the general welfare, be accommodated;
however, the City must insure that the primary purpose of the Rights-of-Way, safe passage of
pedestrian and vehicular traffrc, is maintained to the greatest extent possible. In addition, the value
of other public and private installations, streets, the City Utility System, Facilities and properties
should be protected, competing uses must be reconciled, and the public safety preserved. The use
of the Rights-of-Way by a Right-of-Way User is secondary to these public objectives and the
movement of traffic. This Division is intended to strike a balance between the public need for
efficient, safe transportation routes and the use of public Rights-of-Way for location of Facilities
by public and private entities. Thus, the Division has several objectives:
1. To ensure that the public safety is maintained, and that public inconvenience is
minimized.
2. To protect the City's infrastructure investment by establishing repair standards
for the pavement, Facilities, and property in the Rights-of-Way when work is
accomplished.
3. To facilitate work within the Rights-of-Way through the standardization of
regulations.
4. To maintain an efficient and effective Permit process.
5. To conserve and fairly apportion the limited physical capacity of the Rights-of-
Way held in public trust by the City.
6. To establish a public policy for enabling the City to discharge its public trust
consistent with the evolving federal and/or state law and regulations, industry competition,
and technological development.
7. To assure that the City can continue to fairly and responsibly protect the public
health, safety, and welfare.
C. Applicability.
1. The requirements of this Division apply to all Right-of-Way Users that place
structures and Facilities or that conduct Construction, Excavation, and occupation of a
Work Area within or upon any Right-of-Way except where:
a. Use of the Right-of-Way is established by an agreement, license or other
permit with the City which includes provisions in lieu of this Division.
b. Federal and/or state law conflicts with all, or part, of this Division, in
which case only the portions of this Division that are preempted will either:
i. not be enforced; or
ii. will be replaced with the appropriate federal and/or state law
requirements which preempted all, or part, of this Division.
2. Any Permit issued prior to January 1, 2020 will remain subject to the terms and
conditions of City Laws in effect at the time of issuance of the Permit and is not affected
by this Division, except that, upon expiration or conclusion of the Permit, a new or renewal
Permit must be obtained in accordance with this Division.
Sec. 25-73. Definitions.
The following definitions apply only to this Division:
Arterial means any major street as shown on the City of Denton Mobility Plan, as amended.
Applicant means a Person or authorized agent of a Person, who applies for a Permit under
this Division.
Bac�ll means the placement or return of soil, fill, or other material for restoring an
excavated area
Certificated Telecommunications Provider (CTP) means the same as the term is defined in
Section 283.002 (2), Texas Local Government Code, as amended.
City means the City of Denton, Texas. As used throughout, the term City also includes the
designated agent of the City.
City Construction Standards means specifications, details, and general requirements
adopted by City for the purposes of performing Construction in the Right-of Way.
City Attorney means the City Attorney of the City.
City Engineer means the City Engineer of the City, or designee, or any other Person
designated by the City Manager to administer this Division.
3
City Inspector means an inspector as designated by the City Engineer.
City Manager means the City Manager of the City.
City Risk Manager means the Risk Manager of the City.
City Secretary means the City Secretary for the City.
City Utility System means the water, wastewater, drainage, stormwater, fiber and electric
facilities owned and operated by the City.
Closure means a complete or partial closing of one or more lanes of traffic of an Arterial
and the complete Closure of any other type street or sidewalk.
Construction means any of the following activities performed by any Right-of-Way User
within a Right-of-Way:
a. Installation, Excavation, laying, boring, jacking, placement, repair, upgrade,
maintenance, or relocation of Facilities or other improvements, whether temporary or
permanent;
b. Modification or alteration to any surface, subsurface, or aerial space within the
Right-of-Way;
c. Performance, restoration, or repair of Pavement Cuts or Excavations; and/or
d. Other similar construction work.
Division means Division 3, of Division II, Chapter 25, of the City of Denton Code of
Ordinances.
Emergency Activity means an activity to respond to any event that may threaten public
health or safety, including, but not limited to, unexpected or unplanned outage, cut, rupture, leak
or any other failure of a Utility Facility that prevents or significantly jeopardizes the ability of a
utility to provide service to customers; or could result in danger to the public or a material delay
or hindrance to the provision of service to the public if the outage, cut, rupture, leak or any other
such failure of Utility Facilities is not immediately repaired, controlled, stabilized or rectified; or
any unforeseen occurrence involving a Utility Facility that a reasonable person could conclude
under the circumstances that immediate action by the Utility is necessary and warranted in order
to protect public safety and welfare. Upgrading of Facilities, new service installation and
neighborhood improvement projects expressly do not qualify as emergency operations.
Excavate or Excavation means to dig into or in any way remove or penetrate any part of a
Right-of-Way and does not include landscaping activity unless the activity removes or disturbs the
paved portion of the Right-of-Way.
Facilities means the plant, equipment, and property, including, but not limited to, lines,
transport service, poles, mains, pipes, conduits, ducts, cables and wires located under, on or above
the surface of the ground within the Right-of-Way and valves, and related Facilities and equipment
used or useful for the provision of Utility services, wireless or network services, or
communications services to the public.
Franchise Utility shall mean any utility that has an agreement with the City that outlines
certain requirements for the utility to use the City's Right-of-Way for purpose of providing utility
service such as electric, gas, cable to any person or area of the City. As used throughout, Franchise
Utility also includes contractors and subcontractors to do Construction on its behalf.
High-Risk Main means any City water or City wastewater main pipeline with a diameter
of 12 inches or larger, a wastewater force main of any size, or any other City-owned main
otherwise expressly established by the City Engineer as qualifying for significant preservation
measures to protect public health, safety, and welfare.
Network Provider means the same as the term is defined in Section 284.002 (13), Texas
Local Government Code, as amended.
Pavement Cut means a cut made into the paved surface of a public street, alley, curb,
sidewalk, or public easement.
Permit means a Permit issued under this Division authorizing Construction in the Right-
of-Way.
Person means a natural person (an individual), corporation, company, association,
partnership, firm, limited liability company, joint venture, joint stock company or association, and
other such entity who owns or controls Facilities.
Public Infrastructure Contractor means a Person hired or retained to do Construction of
Facilities that will be maintained by the City. "Public Infrastructure Contractor" includes all sub-
contractors.
Right-of-Way means the area on, below, or above a street, highway, sidewalk, alley,
waterway, utility easement in which the City has an interest, or other way and that is open for
public use, and that is owned by the City in full or in part, and that is managed and controlled by
the City. The term does not include:
a. a private easement of an entity external to the city;
b. public utility easement; or
c. private property.
Right-of-Way User means a means a Person, its successors and assigns, that uses the Right-
of-Way for purposes of Construction, Excavation, provision of services, or installing, constructing,
maintaining, or repairing Facilities thereon, including, but not limited to, landowners, Utilities,
Certified Telecommunication Providers, Network Providers, Public Infrastructure Contractors, ,
and the City.
Utility means any privately or publicly owned entity that uses Right-of-Way to furnish the
public any general public service, including, without limitation, wastewater, 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
Right-of-Way.
Vision Clearance Area means a triangle sight area at an intersection of two streets or
driveways as shown in the City's Transportation Design Criteria Manual.
WorkArea means the full extent of the geographical space impacted by the act or result of
Excavation, material storage, equipment use, or similar occupation by a Right-of-Way undertaking
any work within or adjacent to Right-of-Way. The Work Area for all pavement patches shall
extend a minimum of 3 feet beyond the patch.
Sec. 25-74. Police powers. A Right-of-Way User's rights hereunder are subject to the
police power of the City which includes the power to adopt and enforce City Laws, including
amendments to this Division, necessary for the safety, health, and welfare of the public. The Right-
of-Way User shall comply with all applicable laws and ordinances enacted, or hereafter enacted,
by the City or any other legally constituted governmental unit having lawful jurisdiction over the
subject matter hereof with the exception when in conflict with federal and/or state, rules, or
regulations. The City reserves the right to exercise its police powers, notwithstanding anything in
this Division or a Permit to the contrary. Any conflict between the provisions of this Division or a
Permit and any other present or future lawful exercise of the City's police powers shall be resolved
in favor of the latter.
Sec. 25-75. Authority of the City Engineer; enforcement; violations.
A. City Engineer, or designees(s), is authorized to:
1. Administer and enforce the provisions of this Division.
2. Enter a construction site for which a Permit is granted under this Division for
purposes of inspection to determine compliance with the Permit and this ordinance.
B. Violations. A Right-of-Way User commits an offense if:
l. Performance, authorization, direction, or supervision of Construction without a
Permit issued under this Division;
2. Any provision of this Division is violated;
3. There is a failure to comply with restrictions or requirements of a Permit issued
pursuant to this Division; and/or
4. There is a failure to comply with an order or regulation of the City Engineer
issued pursuant to this Division.
C. This Division may be enforced by civil court action in accordance with federal and/or
state law, in addition to any other remedies, civil or criminal, the City has for violation of this
Division.
D. Prior to initiation of civil enforcement litigation, a Right-of-Way User who has violated
a provision of this Division must be given the opportunity to correct the violation within the
timeframe specified by the City Engineer. This section does not prohibit the City Engineer or the
City from taking enforcement action as to past or present violations of this Division,
notwithstanding their correction.
Sec. 25-76. Penalties. Any violation of the following provisions or terms of this Division
by any Person and/or Right-of-Way User shall be a misdemeanor offense 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 Division shall constitute a separate offense. The penal provisions
imposed under this Division shall not preclude the City from filing suit to enjoin the violation. The
City retains all legal rights and remedies available to it pursuant to local, state and federal law.
Sec. 25-77. Permit required for use of Right-of-Way
A. Permit Required. Any Right-of-Way User seeking to place Facilities on, in or over a
Right-of-Way or to engage in Construction, Excavation, and occupy a Work Area within or upon
any Right-of-Way shall first file an application for a Right-of-Way Permit with the City and shall
abide by the terms and provisions of the Right-of-Way Permit and this Division pertaining to the
use of the Rights-of-Way.
B. Exemptions.
1. No application, Permit or fee is required of a Right-of-Way User for:
a. routine maintenance of existing Facilities that does not require
Excavation or closing of sidewalks or vehicular lanes in streets of a Right-of-Way;
b. a Network Provider replacing or upgrading a network node or pole with
a node or pole that is substantially similar in size or smaller and that does not require
Excavation or closing of sidewalks or vehicular lanes in a Right-of-Way;
i. Substantially similar shall mean the replacement or upgrade does
not include replacement of an existing Pole; and
ii. The determination of whether a replacement or upgrade is
substantially similar may include the location, size, material, quantity,
capacity, or other similar characteristic of the existing Facilities as approved
by the City Engineer.
C. Permits Generally.
l. Permits will be issued in the name of the Right-of-Way User that will own the
Facilities. Permits for public infrastructure will be issued in the name of the Public
Infrastructure Contractor.
2. Any Right-of-Way User with a current, unexpired consent, franchise, agreement,
or other authorization from the City (grant) to use the Rights-of-Way that is in effect at the
time this Division takes effect shall continue to operate under and comply with that grant,
unless prohibited by law, until the grant expires or until it is terminated by mutual
agreement of the City and the Right-of-Way User or as otherwise provided for by law.
3. Construction, Excavation, or Work Area. No Right-of-Way User shall perform
Construction, Excavation, or occupy a Work Area larger or at a location different, or for a
longer period than that specified in the Permit or Permit application. If, after Construction,
Excavation, or occupying the Work Area is commenced under an approved Permit, it
becomes necessary to perform Construction, Excavation, or occupy a Work Area larger or
different area than originally requested under the application or for a longer period of time,
the Right-of-Way User shall notify the City Engineer immediately and, within twenty-four
(24) hours, shall iile a supplementary application for the additional Construction,
Excavation, or occupation of a Work Area.
4. Permit transferability or assignability. The Right-of-Way User may subcontract
the work to be performed under a Permit if the Right-of-Way User is responsible for the
performance of the work under the Permit and all insurance and financial security as
required in this Division. Permits are transferable and assignable upon written notice to the
City Engineer that the transferee or assignee has posted all required security pursuant to
this Division. Any transferee or assignee shall be bound by all requirements of the Permit
and this Division.
5. The Construction of public infrastructure, excluding Franchise Utility
infrastructure, in new developments is the responsibility of the developer of the land.
Ownership of that infrastructure remains with the developer of the land until accepted by
the City.
6. Any Franchise Utility, Utility, or Public Infrastructure Contractor performing
work on infrastructure that is within a Right-of-Way, but prior to infrastructure acceptance
by the City, shall obtain a Permit from the City and permission from the owner of all the
infrastructure in the Right-of-Way. The Agency or Public Infrastructure Contractor shall
be financially responsible to the owner of the infrastructure to carry out all remedial work
necessary to receive acceptance by the City of that infrastructure. This financial obligation
shall apply only to the work in the Right-of-Way done by the Franchise Utility, Utility, or
8
Public Infrastructure Contractor. The City will not accept for dedication public
infrastructure if the work performed on that infrastructure is not in accordance with
applicable City Construction Standards.
7. Any Right-of-Way User found to be conducting any Excavation activity within
the Right-of-Way without having first obtained the required Permit(s) shall immediately
cease all activity (exclusive of actions required to stabilize the area) and be required to
obtain a Permit before work may be restarted.
8. The City may institute all appropriate legal action to prohibit any Right-of-Way
User from knowingly using the Rights-of-Way unless the Agency or Public Infrastructure
Contractor has complied with the terms of this Division.
Sec. 25-78. Right-of-Way Permit application; Permit contents
A. General to all Right-of-Way Permits.
1. Application submissions. Each application for a Permit shall be submitted using
the required form furnished by the City. Applicant must determine what type of Permit is
sought and complete the correct application. The City is not responsible for determining
that the correct application was completed by the Applicant and approval of a Permit
contrary to the provisions of this Division does not create a vested right.
a. Drawings. The Applicant shall provide detailed drawings when major
work such as pole placement, Excavations, and installation of Facilities of the
construction plans in accordance with City requirements.
b. Format. The Applicant requesting a Permit shall provide the City with
documentation in the format published by the City prior to the date the Permit is
submitted.
c. Completeness. The application is not complete unless it contains all
information required by this Division, requested on the application form, and
required by any supplemental list of required documentation provided by the City
with the application form.
2. No Person or Right-of-Way User shall install Facilities or otherwise encroach
upon the Right-of-Way or make a Pavement Cut or Excavate in a Right-of-Way without
first obtaining a Permit from the City Engineer, except for an Emergency Activity or
activities exempt from permitting under this Division.
3. If Construction crosses a Texas Department of Transportation or Railroad Right-
of-Way, the Applicant must provide evidence of a Permit or requisite permission from the
State, Federal Government or other appropriate agency at the time of application.
4. The City shall state on the Permit the activity for which the Permit is issued and
9
any additional restrictions or requirements that have been placed upon the Permit besides
those incorporated into the Permit by this Division, City Laws, or other law or regulation,
as applicable.
5. All Construction in the Rights-of-Way shall be in accordance with the Permit
issued for the Facilities. The City Engineer shall be provided access to the work and to
such further information as the City Engineer may reasonably require ensuring compliance
with the Permit.
6. A copy of the Permit and approved engineering plans shall be maintained at the
construction site and made available for inspection by the City Engineer always during
Construction
7. The Right-of-Way User shall update any new information on Permit applications
within two (2) business days after any change occurs.
8. Franchise Utilities or Public Infrastructure Contractors may apply jointly, in
advance, for Permits to work in Rights-of-Way at the same time and place.
9. All Permit holders must contact the City Engineer at least forty-eight (48) hours
before work begins under the Permit.
10. An extension to a Permit expiration date may be granted by the City Engineer
for a period reasonable to complete all outstanding work, if requested by the Right-of-Way
User in writing at least five (5) business days prior to the current Permit expiration date.
Additional extensions of the Permit for unforeseen circumstances may be granted at the
City Engineers discretion. The City Engineer may require the immediate backfill and
restoration of any Excavation within the Work Area which is outstanding after the extended
period, when doing so would safely restore the Work Area for public use.
B. Types of Permits:
1. Construction-related Permits.
a. A Permit is required whenever there is Construction within the Right-of-
Way.
b. A Right-of-Way User who undertakes any work adjacent to the Right-of-
Way that will store materials or equipment, cut, break, or otherwise damage the
Right-of-Way shall also obtain a Right-of-Way Permit.
2. Emergency Activity. Construction in the Right-of-Way may commence prior to
obtaining a Permit if the City Engineer or Right-of Way User determines a valid need to
perform Emergency Activity. Immediate verbal or written notice, including the reasons for
the Emergency Activity, must be given to the City Engineer and City Inspector if the
Emergency Activity requires Excavation of a Right-of-Way, impacts vehicular or
10
pedestrian traffic, or would otherwise require a Permit to be issued in advance if a similar
scope of work were performed under non-emergency circumstances. No later than the
second business day following commencement of the Emergency Activity the Right-of-
Way User shall apply for Permitting to the City Engineer.
C. Denial, suspension, or revocation of a Permit.
1. Denial of a Permit. A Permit may be denied for any one of the following reasons:
a. The proposed Construction will substantially interfere with vehicular or
pedestrian traffic and no procedures, or procedures which are inconsistent with this
Division, have been implemented to minimize the interference.
b. The proposed Construction will substantially interfere with another
activity for which a Permit has been issued or will conflict or interfere with existing
Facilities already in the Right-of-Way.
c. The proposed barricading, channelizing, signing, warning or other trafiic
control procedures or equipment do not comply with the requirements of the Texas
Manual on Uniform Trafiic Control Devices.
d. The Construction or the way Construction is to be performed will violate
City Laws or federal and/or state law.
e. The Right-of-Way User requests to cross a City-maintained street by open
cut or trench, where in the City Engineer's determination, the public interest would
be upheld with a less invasive method such as jacking, boring, or tunneling. Such
determination may consider, but will not be limited to:
i. Prevention of excessive damage to public streets;
ii. Limiting risk of damage to existing utilities; and
iii. Maintaining maximum use of the Right-of-Way for traffic.
£ There is a lack of available space as evidenced by the inability to meet
safety or distance requirements.
g. The Right-of-Way User:
i. Does not have liability insurance as required by this Division;
ii. Has consistently failed to perform in accordance with the
requirements of this Division;
iii. Has consistently failed to perform in accordance with the terms
11
and conditions of the Permit; and/or
iv. Has failed to furnish all the information required by this Division
or, except for good cause shown, to file the applications within the time
prescribed by this Division;
iv. Has misrepresented or falsified any information in the
applications;
v. Has failed to comply with the bonds as required in this Division;
vi. Is not in compliance with applicable requirements of an existing
Permit issued under this Division;
vii. Does not have the appropriate federal and/or state license or
other required license for the activity being performed in the Rights-of-
Way; or
viii. Has not compensated the City, unless the Right-of-Way User is
not legally obligated to compensate the City by contract, by agreement, or
by law for using public property.
2. Suspension or revocation of a Permit. The City Engineer may suspend by stop
work order or revoke any or all Permits granted to allow work in the Rights-of-Way on the
same grounds on which a Permit may be denied or for the following reasons, and subject
to the procedural guidelines herein:
a. Failing to comply with an order of the City Engineer
b. The recognition that a Permit was issued in error;
c. Failing to comply with restrictions or requirements placed on the Permit
by the City Engineer;
d. The City Engineer reasonably determines that the disconnection,
removal, or relocation of equipment:
i. is necessary to protect the public health, safety, welfare, or City
property;
ii. equipment, or portion thereof, is adversely affecting proper
operation of streetlights or City property; and/or
iii. there is imminent danger to the public; or
e. Violating any provision of this Division.
12
3. The City Engineer shall provide written notice of a denial, suspension or
revocation to the Right-of-Way User. Construction that is suspended may not resume until
the City Engineer determines that the Right-of-Way User has corrected the violation,
noncompliance, or hazard that caused the suspension.
4. A Permit that was revoked due to failure to comply with an order of the City
Engineer, failure to comply with the restrictions or requirements placed upon the Permit
by the City Engineer, a violation of this Division, or for public health, safety or welfare
reasons may be reinstated by the City Engineer if the City Engineer determines that:
a. The Right-of-Way User has corrected the violation, noncompliance, or
hazard that caused the revocation or denial; and
b. The health, safety and welfare of the public is not jeopardized by
reinstating or issuing the Permit.
5. A Right-of-Way User may appeal a Permit denial, suspension, or revocation in
accordance with the provisions of this Division.
Sec. 25-79. Fees.
A. Each Applicant shall pay to the City fees based upon the City's costs in issuing,
processing and verifying Applications and inspections of the Work Area and restoration work. The
types of fees are outlined below; however, the amount of the fees will be established by separate
ordinance:
1. Permit Application Fee. Permits shall be issued, or comments provided, within
ten (10) business days from the City's receipt of the application. Such fees shall be paid by
each Applicant with the application.
2. Expedited Permit Application Fee. An Expedited Permit review, in which the
Permit is either issued or comments received within two (2) business days, may be
requested upon showing of reasonable cause. Expedited Permits will not be issued for
variance requests. Such fees shall be paid by each Applicant with the application.
3. Right-of-Way Inspection Fee. This will be for all Construction in the Right-of-
Way. The fee will be accessed based upon the dates indicated on the Permit. Such fees
shall be paid by the Right-of-Way User upon issuance of the Permit.
4. Overtime Fee. Should a Right-of-Way User request inspection outside of regular
business hours (Monday through Friday from 8:00 a.m. to 5:00 p.m.), an overtime fee shall
be paid to the City with a minimum charge of four (4) hours. There shall be no Right-of-
Way inspections conducted on City holidays. Overtime work shall be requested no later
than noon on Wednesday for Saturday work and a minimum 48 hours prior to work
Monday through Friday after 5:00 p.m. or before 8:00 a.m. Payment must be submitted
13
with request for overtime work. No overtime inspections will occur without the City
Engineer's prior approval. Emergency Activities are excluded from the overtime rate.
5. Permit Expiration Fee. This fee will be charged for any Permit that has not been
extended before its expiration date or where all construction and restoration of the Work
Area has not been completed prior to the expiration date.
6. Barricade Deposit Fee. A deposit will be charged for installation of barricades or
similar traffic control devices placed in the traveled portion of City streets between curbs
on sidewalks and/or alleys to prevent access. Barricade removal shall be completed within
three business days from completion of the project to receive the full deposit. If barricades
are not removed within three business days, the City will remove the barricades and the
deposit will be forfeited.
B. The fees paid for a Permit, which is subsequently cancelled, suspended, or revoked by
the City Engineer or designee, are not refundable.
C. The fees in this section shall apply to all Right-of-Way Users, unless fees are established
by federal and/or state law or other agreement.
Sec. 25-80. Facility size and locations.
A. These provisions apply to all Facilities, including those of Franchise Utilities, unless
otherwise addressed in a separate agreement.
B. The City Engineer 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 Right-of-Way. The City Engineer reserves the right to
reserve space for future utilities or public improvement projects.
C. All underground Right-of-Way User Facilities are required to maintain a minimum
depth of thirty-six (36) inches below top of curb, or thirty (30) inches below the lowest point of
the grade of the street surface where there is no curb. If a Right-of-Way User may encounter a
hardship due to this requirement, the Right-of-Way User may request an exception to the minimum
depth requirement in writing and in advance with the application for Permit. Any exception granted
will be subject to the City Engineer's approval or denial with the application, and only applicable
to a single issued Permit or instance. T�ic Cii will nnt l�c res nnsilrlc �ar a�i ' fI7i1Z�1 e it na�
catise t�} Fa�ilitics lo�stic[� in ihc I�i rhis-af-W�t th.it i!1'C Ilpt Tll�iillL�lI]C[I 111 acc{�r•d.�ncc ►��itly
these requirements.
D. Any Right-of-Way User with existing Facilities which are less than thirty (30) inches
below a concrete or asphalt surface shall notify and work closely with the Person performing
Excavation to establish the exact location of its Facilities and the best procedure for Excavation.
E. All Right-of-Way User Facilities are required to maintain a minimum separation of
twenty-four (24) inches from all City Utility System Facilities. If a Right-of-Way User may
14
encounter a hardship due to this requirement, the Right-of-Way User may request a variance to the
minimum separation requirement in writing and in advance with the Permit application. Any
exception granted will be subject to the City Engineer's approval or denial with the Permit
application, and only applicable to a single issued Permit.
F. The Right-of-Way User shall ensure all overhead lines are constructed and maintained
so that the minimum clearances follow the National Electrical Safety Code as amended. The City
shall not be liable for any damages, injuries, or claims arising from the providers actions or
omissions"
G. Preserve Sight Visibility and Access. No Facilities shall be located within the Vision
Clearance Area. Accessibility to property may not be compromised by Facilities except during
Construction.
H. Temporary utilities. Temporary utilities may be in non-standard locations at the
discretion of the City Engineer.
I. General construction and maintenance requirements. Facilities and poles shall be
constructed and maintained in a manner that does not:
i. obstruct, impede, or hinder the usual travel or public safety on a Right-of-Way;
ii. obstruct the legal use of a Right-of-Way by other Right-of-Way Users;
iii. violate applicable codes, statutes, historic preservation laws, or other law;
iv. interfere with the City's public safety infrastructure;
v. violate or conflict with this Division; or
vi. violate the federal Americans with Disabilities Act and state accessibility
standards.
Sec. 25-81. Variance
A. A Right-of-Way User may request a variance from any of the requirements of this
Division by filing a written request with the City Engineer stating the requirement and the basis
for the variance. The City Engineer may reject incomplete variance requests. The applicant shall
bear its own expenses of the application process.
B. Any request for a variance from any Right-of-Way 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 Work Area, if
applicable.
15
C. Any request for a variance from any penalty and/or fee, other than as provided in this
Division, shall be made in writing, and shall be accompanied by a written detailed request stating
the reasons therefore.
D. Any request for a variance from any Permit, or any other requirement of this Division
shall be made in writing, stating in detail all reasons for the requested variance.
E. The City Engineer shall grant or deny an application for a variance within ten (10) days
of receipt of the application for variance.
F. Denial of the variance may be appealed in accordance with the provisions of this
Division.
Sec. 25-82. Appeals.
A. A Right-of-Way 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:
1. If an Applicant desires to appeal a decision, the applicant may file a written notice
of appeal with the City Engineer, or his designee, 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 City Engineer, or his designee, shall provide a written
decision within five business days. Failure to render a decision within five business days
shall constitute a denial.
2. If a further denial is given, the appellant may thereafter file a written notice of
appeal to the City Manager within five business days of receipt of the City Engineer's
written decision. The City Manager shall provide a written decision within five business
days of receipt of an appeal in accordance with this section. Failure to render a decision
within five business days shall constitute a denial.
Sec. 25-83. Insurance requirements.
A. Franchise Utility or Utility applying for a Permit shall obtain, maintain, and provide
proof of the each of the following types of insurance and coverage limits. These insurance policies
shall be underwritten by insurance companies with an A.M. Best Rating of A VI or better.
1. Commercial general liability on an occurrence form with minimum limits of five
million dollars ($5,000,000.00) per occurrence and ten million dollars ($10,000,000.00)
aggregate. This coverage shall include the following:
a. Products/completed operations to be maintained for one (1) year.
b. Personal and advertising injury.
c. Owners and contractor's protective liability.
16
d. Explosion, collapse, or underground (XCU) hazards.
e. Contractual liability
2. Automobile liability coverage with a minimum policy limits of one million
dollars ($1,000,000) combined single limit. This coverage shall include all owned, hired
and non-owned automobiles.
3. Workers compensation and employer's liability coverage. Statutory coverage
limits for Coverage A and iive hundred thousand dollars ($500,000) Coverage B
employers' liability is required.
4. Pollution liability insurance which provides coverage for sudden and accidental
environmental contamination with minimum limits of liability of five million dollars
($5,000,000).
B. Right-of-Way Users, other than Franchise Utilities or Utilities, applying for a Permit
shall obtain, maintain, and provide proof of insurance for the same types of insurance coverages
outlined in subsection (a) above; however, the policy limits under the general liability insurance
shall be one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000)
aggregate. All other coverage provisions outlined in subsection (a) above shall apply.
C. The method for proof of insurance is a certified copy of the insurance policy. The
Franchise Utility and Utility shall obtain and maintain insurance throughout the time it has
Facilities in the Right-of-Way. The City reserves the right to review the insurance requirements
and to reasonably adjust insurance coverage and limits when the City Manager determines that
changes in law or the claims history of the industry, require adjustment of the coverage.
D. Pursuant to Section 53.064 of the Texas Utilities Code and for purposes of this
subsection, the City will accept certificates of self-insurance issued by the State of Texas or letters
written by the Franchise Utility or Utility in those instances where the state does not issue such
letters, which provide the same coverage as required herein. The City will accept certificates of
self-insurance issued by the State of Texas or letters written by the Franchise Utility or Utility in
those instances where the state does not issue such letters, which provide the same coverage as
required herein. However, certifcates of self-insurance must be approved in advance by the City
Risk Manager.
E. The Right-of-Way User shall furnish, at no cost to the City, copies of certificates of
insurance evidencing the coverage required by this section to the City. If the City requests a
deletion, revision or modification, the Right-of-Way User shall exercise reasonable efforts to pay
for and accomplish the change.
F. The Right-of-Way User shall file and maintain proof of insurance with the City
Engineer. An insurance certificate obtained in compliance with this section is subject to City
approval, through the City Risk Manager. The City may require the certificate to be changed to
reflect changing liability limits. A Right-of-Way User shall immediately advise the City Attorney
of actual or potential litigation that may develop which may affect an existing carrier's obligation
17
to defend and indemnify the City.
1. Such insurance shall be kept in full force and effect during the period for which
a Permit shall be issued or the space occupied. Insurance coverage must be available on a
"per project" basis. An insurer has no right of recovery against the City. The required
insurance policies shall protect the Agency or Public Infrastructure Contractor and include
the City as an additional insured. The insurance shall be primary coverage for losses
covered by the policies.
G. The policy clause "other insurance" shall not apply to the City.
H. The Right-of-Way User shall pay premiums and assessments. A company that issues an
insurance policy has no recourse against the City for payment of a premium or assessment.
Insurance policies obtained by a Right-of-Way User must provide that the issuing company waives
all right of recovery by way of subrogation against the City in connection with damage covered by
the policy.
I. Each policy must include a provision that requires the insurance company to notify the
City in writing at least thirty (30) calendar days before canceling or failing to renew the policy or
before reducing policy limits or coverages.
J. Each Franchise Utility must-comply with the insurance requirements in this section,
unless the Franchise Utility's current franchise or license agreement with the City s�ecifically
addresses insurance requirements, in which case the franchise or license agreement shall control.
K. The insurance requirements may be met by a Franchise Utility with a current franchise
license, a franchise ordinance issued by the City, or license if their current franchise or license
adequately provides for insurance and bonds and provides an indemnity in favor of the City.
Sec. 25-84. Liability of Right-of-Way User. To the extent allowed by law, the Right-of-
Way user shall be liable to the City for any damage or loss occasioned by any act and/or omission
occurring in connection with its Construction, and subject to state law, the Right-of-Way user shall
fully indemnify, hold harmless and defend the City, its councilmembers, 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 City, its councilmembers, 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 City shall promptly notify a Right-of-Way User,
at the address set forth in the Permit, or last known address, of any claim, suit or demand served
upon the City and alleging negligent or wrongful conduct by the Right-of-Way User in connection
with its Construction.
Sec. 25-85. Indemnification.
A. To the extent authorized by law, each Right-of-Way User placing Facilities in the
Rights-of-Way shall indemnify, and hold the City and its officers and employees harmless from
18
and against all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including
reasonable attorney's fees and costs of defense), proceedings, actions, demands, causes of action,
liability, and suits of any kind and nature, including personal or bodily injury (including death),
property damage, or other harm for which recovery of damages is sought that is found by a court
of competent jurisdiction to be caused solely by the negligent act, error, or omission of the Right-
of-Way User or its any agent, officer, director, representative, employee, affiliate, or subcontractor,
while installing, repairing, or maintaining Facilities in a Right-of-Way.
B. The indemnity provided by this subsection does not apply to any liability resulting from
the negligence of the City, its officers, employees, contractors, or subcontractors. If a Right-of-
Way User and the City are found jointly liable by a court of competent jurisdiction, liability shall
be apportioned comparatively in accordance with the laws of state without, however, waiving any
governmental immunity available to the City under state law and without waiving any defenses of
the parties under state law.
C. This section is solely for the benefit of the City and the Right-of-Way User and does not
create or grant any rights, contractual or otherwise, to any other Person.
Sec. 25-86. Bonds.
A. The Franchise Utility, Utility, or Public Infrastructure Contractor, shall, provide
performance, payment, and maintenance bonds for the Construction anticipated to be performed
in the Right-of-Way with the Permit. Each bond shall be in the amount of the estimated costs to
restore the Right-of-Way for the Construction anticipated to be done with the Permit. The
performance bond shall be conditioned upon the faithful performance of the work in the Rights-
of-Way. The payment bond shall be conditioned upon payment of all persons supplying labor or
furnishing materials for said work. The maintenance bond shall guarantee the Construction for two
(2) years from the date of its completion. Each bond shall be executed by a surety company
authorized to do business in the State of Texas and acceptable to the City.
B. Each year, the Franchise Utility, Utility, or Public Infrastructure Contractor shall,
provide performance, payment, and maintenance bonds for the Construction anticipated to be
performed in the Right-of-Way in the upcoming year. Each bond shall be in the amount of the
estimated costs to restore the Rights-of-Way for the Construction anticipated to be done in that
year. The performance bond shall be conditioned upon the faithful performance of the work in the
Rights-of-Way. The payment bond shall be conditioned upon payment of all persons supplying
labor or furnishing materials for said work. The maintenance bond shall guarantee the Construction
for two (2) years from the date of its completion. Each bond shall be executed by a surety company
authorized to do business in the State of Texas and acceptable to the City.
C. The Right-of-Way User by acceptance of the Permit, expressly guarantees complete
performance of the work affecting the City's Right-of-Way in a good and workmanlike manner
acceptable to the City and warrants and guarantees all such work done for a period of two (2) years
after the date of acceptance and agrees to maintain upon demand and to make all necessary repairs
during the two (2) year period. This maintenance bond shall include all repairs and actions needed
because of:
19
1. Defects in workmanship;
2. Settling of backfill or excavations;
3. Any unauthorized deviations from the approved plans and specifications;
4. Failure to barricade;
5. Failure to clean up during and after performance of the work;
6. Restoration of improvements including, but not limited to, landscaping and
irrigation; or
7. Any other violation of this Division or the ordinances of the City.
D. The two-year maintenance period shall run from the date of the City's acceptance of the
Construction which shall be the date of the letter of acceptance issued by the City to the Right-of-
Way User. If repairs are required during the two-year warranty period, those repairs need only be
warranted until the end of the initial two-year period starting with the date of acceptance. It is not
necessary that a new two-year warranty be provided for subsequent repairs after acceptance.
E. At any time prior to completion of the two-year warranty period, the City may notify
the Right-of-Way User of any needed repairs. Such repairs shall be completed within twenty-four
(24) hours if the defects are determined by the City to be an imminent danger to the public health,
safety, and welfare. Non-emergency repairs shall be completed within fifteen (15) calendar days
after notice.
Sec. 25-87. Registration.
A. All Right-of-Way Users must register with the City and shall report any changes in
registration information within thirty (30) days of such change, and prior to applying for a Right-
of-Way Permit after any change in registration information. No Right-of-Way User shall be
authorized to utilize the Right-of-Way in any capacity or manner without registering and obtaining
the necessary Permit from the City. Registration shall be in accordance with the following
requirements:
1. The registration must be on a form furnished by the City. The form must be filled
out completely and accurately. Any omissions or inaccuracies on the form may be cause
for denial of the registration at the City's discretion;
2. The name of the Right-of-Way User that owns the Facilities, including any
business name, assumed name, or trade name;
3. Name, address, telephone number, and email address of officer, agent or
employee responsible for the accuracy of the registration information;
20
4. Name, address, telephone number, and email address of the local representative
of the Right-of-Way User who shall always be available to act on behalf of the Right-of-
Way User in the event of an emergency;
5. If applicable, certification number(s) issued by Public Utilities Commission,
License number(s) issued by Federal Communications Commission, municipal ordinance,
or similar governing entity granting formal accreditation regarding a Right-of-Way Users
capacity to operate in public Rights of Way;
6. General description of activities to be provided;
7. Insurance and bonding information as required;
8. Applicable registration fees.
B. No Right-of-Way User shall be authorized to use the Right-of-Way without registering
with the City and obtaining any necessary Permit(s). A Right-of-Way User shall be responsible
for all costs incurred by the City due to the failure to provide any information to the City required
for registration.
C. A Right-of-Way User must remain in good standing with the registration requirements
and City Laws to continue to apply for Permits and work within the Rights of Way.
Sec. 25-88. Plans of record
A. Any Franchise Utility, Utility, Certificated Telecommunications Provider, or Network
Provider with Facilities in the Rights-of-Way shall submit plans of record in accordance with the
requirements outlined in Sec. 26-247, Chapter 26, of the City's Code of Ordinances.
B. On or before January 31 of each calendar year following the initial submittal of its plans
of record, an Agency or Network Provider shall provide to the City Engineer plans of record that
show all installations of new Facilities, and all changes, additions, abandonments, and relocations
relating to existing Facilities completed in the previous calendar year.
Sec. 25-89. General Rights-of-Way use and Construction.
A. Responsibility for employees, courtesy and drug policy. Right-of-Way Users shall be
responsible and liable for the acts and omissions of their employees, temporary employees,
officers, directors, consultants, agents, Affiliates, subsidiaries, and subcontractors in connection
with the installations of Facilities in the Right-of-Way, as if such acts or omissions were Right-of-
Way Users acts or omissions. Work in the Rights-of-Way shall be done in a manner that causes
the least interference with the rights and reasonable convenience of property owners and residents.
Citizen satisfaction must be a priority in using the Rights-of-Way. Right-of-Way Users shall train
their employees to be customer service-oriented and to positively and politely interact with citizens
when dealing with issues pertaining to its Facilities in the Right-of-Way. Employees shall be clean,
r�l
courteous, efiicient, and neat in appearance and committed to offering the highest quality of
interaction with the public. If, in the opinion of the City Manager, the employee is not interacting
in a positive and polite manner with citizens, he or she shall request that the Right-of-Way User
take all remedial steps to conform to these standards. It is the policy of the City to achieve a drug-
free workforce and workplace. The manufacture, distribution, dispensation, possession, sale, or
use of illegal drugs or alcohol by Right-of-Way Users employees, contractors, subcontractors, or
vendors while on Rights-of-Way is strictly prohibited.
B. Minimal interference. Right-of-Way User's Facilities shall be constructed or maintained
in such a manner as not to interfere with sewers, water pipes, or any other property of the City, or
with any other pipes, wires, conduits, pedestals, structures, or other Facilities that may have been
laid in the Rights-of-Way by, or under, the City's authority. The Right-of-Way User's Facilities
shall be located, erected, and maintained so as not to endanger or interfere with the lives of persons,
or to interfere with improvements the City may deem proper to make, or to unnecessarily hinder
or obstruct the free use of the Rights-of-Way or other public property or unjustly interfere with the
travel and use of public places by the public during the Construction, repair, operation, or removal
thereof, and shall endeavor to not obstruct or impede traffic. The Right-of-Way User shall not
cause any interference with City's public safety radio system, traffic signal light system, or other
safety communications components.
C. Responsibilities under Permit; location of Facilities.
1. A Permit does not relieve a Right-of-Way User of the responsibility to coordinate
with other utilities and property owners, and to protect existing Facilities. A Right-of-Way
User working in the Right-of-Way is responsible for obtaining line locates from all affected
utilities or others with Facilities in the Right-of-Way prior to any Excavation. Use of a
remote records system such as Geographic Information Systems or the plans of record does
not satisfy this requirement.
2. In performing location of Facilities in the Rights-of-Way in preparation for
Construction under a Permit, a Right-of-Way User shall compile all information obtained
regarding its or any other Facilities in the Rights-of-Way related to a particular Permit and
shall make that information available to the City in a written and verified format acceptable
to the City Engineer.
a. Protection of utilities. Before beginning Excavation in any Right-of-Way,
a Right-of-Way User shall contact the Texas One-Call System or any other
company operating under the One-Call Statute and, to the extent required by
Chapter 251 of the Texas Utilities Code, make inquiries of all ditch companies,
Utility companies, districts, local government departments, and all other Agencies
that might have Facilities in the Work Area to determine possible conflicts. Field
locations shall be marked prior to commencing work. The Right-of-Way User shall
support and protect all pipes, conduits, poles, wires, or other apparatus that may be
affected by the work from damage during Construction or settlement of trenches
after Construction.
22
b. A Person shall only use a water-based paint in the Right-of-Way to mark
the location of existing underground utilities.
D. Underground Construction; use by City. Should the City desire to place its own
Facilities in trenches or bores opened by the Right-of-Way User, the Right-of-Way User shall
cooperate with the City in any Construction by the Right-of-Way User that involves trenching or
boring, provided that the City has first notified the Right-of-Way User in some manner that it is
interested in sharing the trenches or bores in the area in which the Right-of-Way User's
Construction is occurring. The Right-of-Way User shall allow the City to place its Facilities in the
Right-of-Way User's trenches and bores, provided the City incurs any incremental increase in cost
of the trenching and boring. The City shall be responsible for maintaining its respective Facilities
buried in the Right-of-Way User's trenches and bores under this paragraph.
E. Joint trenching. The Rights-of-Way have a limited capacity for containing Facilities.
The City Engineer may require a Right-of-Way User to share trench space to minimize the
disruption of vehicular or pedestrian traffic.
1. All Facilities shall meet any applicable local, state, and federal clearance and
other safety requirements, be adequately grounded and anchored, and meet the provisions
of any contracts executed between Right-of-Way User and the other joint user. Right-of-
Way User, as owner of the structure for collocation, may, at its option, correct any
attachment deficiencies and charge the joint user for its costs.
2. Joint trenching with the City's electric utility shall adhere to its guidelines for
gas, communications and electric trench requirements.
F. Excavation safety. The excavation safety plan shall be designed in conformance with
federal and/or state law and federal Occupational Safety and Health Administration standards and
regulations.
G. Erosion Control. The Right-of-Way User shall be responsible for storm water
management erosion control that complies with City, state and federal guidelines. The SWPPP
shall be in accordance with City's Standard Construction Specification Documents.
H. Electrical Supply. Right-of-Way Users are responsible for obtaining any required
electrical power services to their Facilities. The City shall not be liable for any stoppages or
shortages of electrical power furnished to the Facilities, including without limitation, stoppages or
shortages caused by any act, omission, or requirement of the public utility serving the Facilities or
the act or omission of any other tenant of the structure or user of the Right-of-Way, or for any
other cause beyond the control of the City. Fixed generators and back-up generators are prohibited
in the Right-of-Way.
Sec. 25-90. Protection of High-Risk Mains. The integrity of the City's public infrastructure
system for treatment and delivery and potable water must be preserved and protected by all Right-
of-Way Users. Public health, safety, and welfare is at risk when damages to water and sewer mains
occur; particularly to High-Risk Mains. Any longitudinal installation of Facilities within four (4)
23
feet of a High-Risk Main in Rights-of-Way may be required by the City Engineer to be installed
by open excavation, instead of by bore, to assure the protection of the City's water and sewer
system. The City has available mapping that identifies High-Risk Mains for quick reference, before
they are field located. The Right-of-Way User is responsible for obtaining, field verifying, and
using this information in the design of its new Facilities. When boring within 4 feet of a High-Risk
Main is acceptable to the City Engineer, a minimally invasive process to core the street and visibly
locate a High-Risk Main is mandatory. Section 25-92 outlines scheduling restrictions and
allowable methods for bores in in proximity to High-Risk Mains, where approved in advance by
the City Engineer.
Sec. 25-91. Joint Planning and Construction; Coordination of Excavations.
A. Excavations in Rights-of-Way disrupt and interfere with the public use of the city streets
and damage the pavement and landscaping. The purpose of this section is to reduce this disruption,
interference and damage by promoting better coordination among Right-of-Way Users making
Excavations in Rights-of-Way and between these Right-of-Way Users and the City. Better
coordination will assist in minimizing the number of Excavations being made wherever feasible
and will ensure the Excavations in Rights-of-Way are, to the maximum extent possible, performed
before, rather than after, the reconstruction of the streets by the City.
B. Utility coordination meeting.
1. The City will hold a utility coordination meeting on a monthly basis. The purpose
of the meeting is for the City to inform Right-of-Way Users of proposed and current capital
improvement projects in the City of Denton and for the Right-of-Way User to inform each
other and the City of current and future projects. Each Right-of-Way User is encouraged
to attend and participate in the meetings of the City, of which the Right-of-Way User will
be made aware.
2. The City Engineer will notify the affected Right-of-Way User at least six (6)
months before Construction will start on a City project. Preliminary plans will be provided
to the affected Right-of-Way User at least four (4) months before the project is to start
Construction. Final plans will be provided to the affected Right-of-Way User at least two
(2) months before the project is to start Construction.
3. Whenever it is possible and reasonably practicable to joint trench or share bores
or cuts, the Right-of-Way User shall work with other Right-of-Way Users to reduce the
number of cuts to paved surfaces and minimize interference to the public use of Right-of-
Way within the City.
C. Excavation master plan. In addition to participating in utility coordination meetings, any
Right-of-Way User owning, operating or installing Facilities in Rights-of-Way, providing water,
sewer, gas, electric, communication, video, or other utility services, shall meet annually with the
City Engineer, at the City Engineer's request, to discuss the Right-of-Way User's excavation
master plan. At such meeting, to the extent not already in possession of the City, Right-of-Way
User should submit documentation, in a form requested by the City Engineer, showing the location
24
of the Right-of-Way User's existing Facilities in the Rights-of-Way.
1. Right-of-Way User shall discuss with the City Engineer its excavation master
plan and identify planned major Excavation work in the City. The City Engineer may make
his own record on a map, drawing, or other documentation of each Right-of-Way User's
planned major Excavation work in the City; provided, however, that no such document
prepared by the City Engineer shall identify the entity, or the planned major Excavation
work of that particular entity.
2. Between the annual meeting to discuss planned major Excavation work, Right-
of-Way User shall inform the City Engineer of any substantial changes in the planned
major Excavation work discussed at the annual meeting. The city will not preclude a Right-
of-Way User from obtaining a Permit for a project that was inadvertently excluded from
the Agency's, network provider's or Public Infrastructure Contractor's excavation master
plan or was unknown at the time the plan was created.
Sec. 25-92. Minimizing the impacts of work in the Rights-of-Way.
A. Noise, dust, debris, hours of work. Each Right-of-Way User shall conduct work in such
a manner as to avoid unnecessary inconvenience and annoyance to the general public and
occupants of neighboring property. In the performance of the work, the Right-of-Way User shall
take appropriate measures to reduce noise, dust, and unsightly debris. No Excavation work shall
be done between the hours of 5:00 p.m. and 8:00 a.m., except with the written permission of the
City Engineer, or in case of an Emergency Activity. Bore time for any Work Area within four (4)
feet of any High-Risk Main is further restricted to the following schedule: 8:00 a.m. to 4:00 p.m.
Monday through Thursday, 8:00 a.m. to noon on Friday and no bore on Saturday and Sunday
without prior written approval of the City Engineer, a ten (10) business day advance written
notification to the Facility owner, and payment of applicable overtime fees established. Missiles
are not considered to be an acceptable directional boring method and are not allowed unless
otherwise approved in writing by the City Engineer in advance. City may grant an exception to the
operating hours if necessary
B. Trash and construction materials. Each Right-of-Way User shall maintain the Work
Area so that:
1. Trash and construction materials are contained so that they are not blown off the
construction site, or viewed as litter within the Work Area itself;
2. Trash is removed from a construction site for proper disposal off-site often
enough so that it does not become a health, fire, or safety hazard; and
3. Trash dumpsters and storage or construction trailers are not placed in the street
without written approval of the City Engineer.
C. Deposit of dirt and material on streets. Each Right-of-Way User shall eliminate the
tracking of mud or debris upon any street or sidewalk. Equipment and trucks used during
25
Construction, Excavation, or occupying a Work Area shall be cleaned of mud and debris prior to
leaving any work site.
D. Protection of trees and landscaping. Each Right-of-Way User shall protect trees,
landscape, and landscape features as required by the City Engineer and shall be responsible for
supplemental maintenance and watering during Construction and until restoration is complete. All
protective measures shall be provided at the expense of the Right-of-Way User. When directed by
the City Engineer, a Right-of-Way User shall trim trees, brush, or other landscaping overhanging
facilities in a Right-of-Way under the supervision and direction of the City. The City shall not be
liable for any damages, injuries, or claims arising from Right-of-Way Users actions under this
section.
1. Right-of-Way Users shall have the authority to trim trees upon and overhanging
Rights-of-Way (including sidewalks and driveways), after providing written notice to
affected customers, so as to prevent the branches of the trees from coming into contact with
the wires and cables of the provider, provided that all trimming is done in compliance with
the National Electric Safety Code and city Code provisions, and at no expense to the city.
E. Protection of paved surfaces from equipment damage. Backhoe equipment outriggers
shall be fitted with rubber pads whenever outriggers are placed on any paved surface. Tracked
vehicles with grousers are not permitted on paved surfaces unless specific precautions are taken to
protect the surface. A Right-of-Way User shall be responsible for any damage caused to the
pavement by the operation of such equipment and shall repair such surfaces. Failure to promptly
complete required repairs, the city may repair such portion of the public Rights-of-Way that may
have been disturbed by the Right-of-Way User, and the cost shall be charged to the Right-of-Way
User.
F. Protection of property. Each Right-of-Way User, at its own expense, shall protect from
injury any Rights-of-Way and adjoining property by providing trench protection and other
measures necessary to shore up and protect all buildings, walls, fences, or other property likely to
be damaged during the work and shall be responsible for all damage to public or private property
resulting from failure to properly protect such property and carry out work in the Rights-of-Way.
G. Clean-up. As the work progresses, all Rights-of-Way and private property shall be
thoroughly cleaned of all rubbish, excess dirt, rock, and other debris. All clean-up operations shall
be done at the expense of the Right-of-Way User. Right-of-Way User shall restore the Work Area
to its original condition. All restoration work must be completed within twenty (20) business days
following the date of substantial completion of the work in the Right-of-Way. Such clean-up and
restoration shall be subject to the sole, reasonable approval of the City Engineer.
H. Vehicle parking. Each Right-of-Way User shall make provisions for their employee and
construction vehicle parking so that neighborhood parking and/or alternative access necessary for
properties adjacent to a Work Area is always available.
I. Walkways. Each Right-of-Way User shall maintain an adequate and safe unobstructed
walkway around the Work Area or blocked sidewalk in conformance with City Code, the Texas
26
Manual of Uniform Traffic Control Devices, and Americans with Disabilities Act standards; as
periodically revised.
J. Graffiti Abatement. As soon as practical, but not later than fourteen (14) calendar days
from the date Right-of-Way User receives notice thereof, the Right-of-Way User, shall remove all
graffiti on any of its Facilities located in the Right-of-Way. The foregoing shall not relieve the
Right-of-Way User from complying with any City graffiti or visual blight ordinance or regulation.
K. Ownership. No part of any Facilities placed on the Right-of-Way pursuant to this
Division will become or be considered by the City as being affixed to or a part of, the Right-of-
Way, except for Facilities accepted as City Facilities by the City Engineer in writing. All other
Facilities placed in the Right-of-Way pursuant to this Division will be and remain the property of
the Agency and may be removed by the Agency at any time, provided the Agency shall obtain
Permits or give notice as required by this Division.
L. Notifications.
1. Once a Permit is issued, the Right-of-Way User shall be required to coordinate
all notification and construction activities with the City Inspector after Permit issuance,
within the timeframes specified on the Permit.
2. Affected landowners: All landowners and residents that are affected and directly
adjacent to the Construction must be notified by the Right-of-Way User that Construction
will begin at least forty-eight (48) hours prior to the beginning of Construction. The City
Engineer may require notification of additional property owners/residents, and/or
notification further in advance, depending on the scope, type, location or nature of the
Construction.
3. General public: In addition to notice required for affected landowners, if in the
opinion of the City Engineer, the Construction will have a regional impact including but
not limited to disruption of traffic on an Arterial or collector street, the Right-of-Way User
may be required to give longer than forty-eight (48) hours' notice to the City Inspector so
that the proposed Construction may be posted for advance notice to the public and
emergency services personnel in on the City Website, Denton Record Chronicle, DTV, or
similar means of broadcast prior to the start of Construction.
M. Traffic control plan. All work within the Right-of-Way impacting the intended use will
require a detailed traffic control plan approved by the City Engineer. Traffic Control Plans must
comply with the requirements in the Right-of-Way Management Manual and Texas Manual of
Uniform Traffic Control Devices
1. The Right-of-Way User shall provide the City Engineer fifteen (15) days written
notice before the Closure of any Arterial Streets, seven (7) days written notice before
Closure of any local street, and twenty-one (21) days written notice before Closure of any
other highway, street, or interruption in traffic flow.
27
Sec. 25-93. Construction Requirements
A. City Construction Standards. All Construction under this Division shall be done in
accordance with the current City Construction Standards and the City's electric utility's
Construction Standards for Joint Use.
B. All Construction must be done in a good and workmanlike manner and in faithful and
strict compliance with the Permit, this ordinance, other City ordinances, and regulations
promulgated by the City relating to Construction within the Right-of-Way. The Right-of-Way User
shall maintain the Work Area in a manner that avoids health hazards, and hazards to vehicular and
pedestrian traffic until the Right-of-Way is permanently restored. Specific construction
requirements are contained in the City Construction Standards.
C. A copy of the Permit and associated plans, as pre-reviewed and cleared for construction
by the City Engineer, shall always be present at the Work Area and made available for inspection
by the City when construction or installation work is occurring.
D. Existing Facility Locates. Prior to Construction, the Right-of-Way User shall obtain
utility locates by contacting the Texas Excavation Safety System at 1-800-344-8377 or online at
>> «��:r��wW. a� ���55.����» .
Sec. 25-94. Emergency Activity. Construction in the Right-of-Way may commence prior
to obtaining a Permit if the City Engineer or Right-of Way User determines a valid need to perform
an Emergency Activity, as defined in this Division. Immediate verbal or written notice, including
the reasons for the Emergency Activity, must be given to the City Engineer and City Inspector if
the Emergency Activity requires Excavation of any public street, impacts vehicular or pedestrian
traffic on a non-residential street, or would otherwise require a Permit to be issued in advance if a
similar scope of work were performed under non-emergency circumstances. No later than the
second business day following commencement of any Emergency Activity the Right-of-Way User
shall apply for Permitting to the City Engineer.
Sec. 25-95. Standards for repair and restoration.
A. Right-of-Way User responsibility. The Right-of-Way User shall be fully responsible for
the cost and actual repairs and restoration of all work in the Rights-of-Way. The Right-of-Way
User shall do all Construction in conformance with any and all Denton Design Criteria or City
Construction Standards, or other regulations. All restoration shall result in a Work Area condition
equal to or better than the condition in which the Work Area existed prior to Construction. In
addition to the regulations, specifications, and standards referred to in subsection (a), the following
provisions shall apply to work in the Rights-of-Way of within the City:
1. Restoration must be to the reasonable satisfaction of the City Engineer and
the property owner. The restoration shall include, but not be limited to:
a. Replacing all ground cover with the type of ground cover damaged during
work or better by sodding, as directed by the City Engineer;
28
b. Installation of all manholes and handholes, as required;
c. Backfilling of all bore pits, potholes, trenches or any other holes which
must be done within seven (7) business days after excavation of the bore pits,
potholes, trenches or other holes, unless other an extended timeframe and safety
requirements are approved by the City Engineer in advance;
d. Restoration of Work Area to City Construction Standards;
e. Restoration of all landscaping, trees, shrubs, and sprinkler systems; and
f. Repairing and replacing existing erosion control devices that have been
damaged or destroyed during the work.
2. All locate flags placed in the Work Area at the Right-of-Way User's request shall
be removed during the clean-up process by the Right-of-Way User at the completion of the
work.
3. Restoration must be made in a timely manner. If restoration is not satisfactory
and/or is not performed within the agreed upon timeframe, all work in progress, except that
related to the outstanding restoration, including all other Work Areas previously Permitted
but not complete, may be halted and a hold may be placed on any Permits not approved
until all restoration is complete, or the City Engineer may complete the work and bill the
Right-of-Way User for all actual direct and indirect costs of the repairs performed by the
City..
4. Emergency Activity during Construction: If the City determines during its
regular maintenance, Construction, or any similar public improvement or development
project, that an emergency repair to another Right-of-Way User's Facilities within the
Right-of-Way is necessary to correct a situation that is hazardous to the public, the City
Engineer shall immediately notify the Right-of-Way User. If the Right-of-Way User does
not commence the emergency repair within twenty-four (24) hours, the City may, at its
sole discretion, cause performance of such emergency repair work as is necessary to correct
the hazardous situation. The Right-of-Way User shall reimburse the City for the actual
direct and indirect cost of the work necessary to correct the hazardous situation. The Right-
of-Way User shall maintain the emergency repair for the Work Area of their Emergency
Activity as directed by the City Engineer until the Right-of-Way User completes
Construction and iinal repairs.
5. Barricades, signage, and other traffic control devices shall be removed from the
Work Area, following completion of the Work, in a timely manner.
6. Settling of Backfill.
a. The City shall notify the Permittee in writing if the Backfill on a Permitted
29
Pavement Cut or Excavation settles or shows any other signs of damage not
attributable to the reasonable usage and expected wear of the Work Area at any
time during the two (2) year maintenance period, including the area within three
foot feet beyond the utility patch in any horizontal direction. Upon notification, the
Permittee shall commence repair work within ten (10) days and notify the City a
minimum of 48 hours in advance of commencement of the repair work. If the repair
work is not commenced within ten (10) days, the repair work may be performed by
the City at the Right-of-Way User's expense.
b. The City shall notify the Permittee in writing if the Backfill on a
Permitted Pavement Cut or Excavation settles at any time during the two-year
maintenance period. Upon notification, the Permittee shall commence repair work
within ten (10) days and notify the City 48 hours in advance of commencement of
the repair work. If the repair work is not commenced within ten (10) days, the repair
work may be performed by the City at the Right-of-Way User's expense.
c. Failure to Repair or Restore: upon failure of the Permittee to perform any
such repair or restoration work described in this Division, the City may repair such
portion of the Right-of-Way as may be required. The Permittee or Right-of-Way
User shall reimburse the City for the actual direct and indirect costs of the repair
work.
Sec. 25-96. Tests and Inspections.
A. Right-of-Way User shall give the City Engineer timely notice of readiness of the Work
Area for all required inspections, tests, or approvals and shall cooperate with inspection and testing
personnel to facilitate required inspections or tests.
B. Right-of-Way User shall be responsible for arranging, obtaining, and payment of all
costs in connection with any inspections, tests, re-tests, or approvals required for City's acceptance
of materials or equipment to be incorporated in the Work Area.
C. The City may require testing of materials used in construction in the Right-of-Way to
determine conformance to required specifications, including, but not limited to, compaction tests
on backfill materials, subgrade, aggregate base course, concrete (concrete pavement), asphaltic
concrete (asphalt pavement) and other construction materials as deemed necessary by the City
Engineer. The Right-of-Way User is responsible for all costs associated with the testing necessary
in accordance with City Construction Standards.
D. If any Construction that is to be inspected, tested, or approved is covered by Right-of-
Way User without written concurrence of the City Engineer or City Inspector, Right-of-Way User
shall, if requested by City Engineer, uncover such Construction to complete the outstanding
inspection, testing, observation or approval.
Sec. 25-97. Relocation of Facilities for public improvements.
30
A. In the exercise of governmental functions, the City has first priority over all other uses
of the public Rights-of-Way. The City reserves the right to lay sewer, water, and other pipelines
or cables and conduits, and to do underground and overhead work, and attachments, restructuring,
or changes in aerial Facilities in, across, along, over, or under a public street, alley, or Rights-of-
Way occupied by an Right-of-Way User, and to change the curb, sidewalks, or the grade of streets.
B. The Right-of-Way User must relocate its Facilities at its own expense, in a timely
manner, and prior to the start of Construction of a City project. Failure to comply with this
provision shall subject the Right-of-Way User to the enforcement provisions contained herein.
C. A Permit will be required when a Right-of-Way User makes Facility adjustments in
preparation for City projects, unless the adjustments are exempt under Sec. 25-77(b).
D. If the Right-of-Way User fails to remove or relocate its Facilities as requested within
ninety (90) calendar days of receipt of the final plans and proof of secured right-of-way, then the
City shall be entitled to remove the Facilities at the sole cost and expense of the Right-of-Way
User without further notice. Right-of-Way User, Agency, or Network Provider shall, within thirty
(30) calendar days following issuance of removal (including, without limitation, overhead and
storage expenses) of the Facilities reimburse the City for its actual direct and indirect cost of the
removal or relocation work. A hold may be placed on any pending applications for a Permit not
yet issued to the Right-of-Way User until payment is received.
E. The City shall not require Right-of-Way User to remove Facilities entirely from a street,
sidewalk, curb, alley, highway, or public way unless suitable alternatives are available for
relocation of its Facilities.
Sec. 25-98. Abandonment and removal of Facilities.
A. Any Right-of-Way User that intends to discontinue use of or abandon any Facilities
within the public Rights-of-Way shall notify the City Engineer in writing of the intent to
discontinue use. Such notice shall describe the Facilities for which the use is to be discontinued,
including the address and GPS coordinates of any pole, a date of discontinuance of use, which date
shall not be less than thirty (30) calendar days from the date such notice is submitted to the City
Engineer. Upon receipt of notice of discontinuance of use, the City shall have a right of first refusal
to acquire Right-of-Way User's Facilities with the cost for such Facilities to be negotiated by the
City and the Right-of-Way User.
B. Any Right-of-Way User shall, at its sole cost and expense, promptly disconnect, remove
or relocate its Facilities if ordered to do so by the City Engineer pursuant to this Division. The
Right-of-Way User shall reimburse City for the City's actual costs of removal of Facilities if
Agency or Network Provider fails to promptly disconnect, remove and relocate its Facilities.
Payment must be made within thirty (30) calendar days from receipt of an invoice for the actual
costs from the City. The City shall not be liable for any damages, injuries, or claims arising from
the City's actions under this section.
C. The City shall not issue any refunds for any amounts paid by the Right-of-Way User for
31
Facilities or related ground equipment that have been removed.
Sec. 25-99. Certified Telecommunications Providers (CTP).
A. Authority Required/Nonexclusive Use. A CTP must provide evidence that the CTP has
acquired authorization from the state Public Utility Commission pursuant to state law, prior to
obtaining a Permit to use Right-of-Way. The CTP's right to use and occupy the Right-of-Way
shall not be exclusive, and the City shall have the right to exercise its police powers and manage
its Right-of-Way, based on all applicable federal and/or state laws.
B. Transfer and notice. A CTP shall notify the City Engineer 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 City Engineer always during which the CTP uses the Right-of-Way.
C. Exemption from fees. Other than the fee authorized by Sec. 283.056, Texas Local
Government Code, CTPs are exempted from any additional fees related to the use of the City's
Rights-of-Way.
D. Waiver of bonds. Unless determined otherwise by the City Engineer, a CTP will be
exempt from the bonding requirements of this Division, however, in the event that the City
Engineer 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 City Engineer may require that a CTP
post a reasonable bond not to exceed $100,000. Factors to be considered in determining reasonable
grounds may include, but are not limited to, a conviction for violation of this Division, a general
pattern of substandard adherence to the provisions of this Division or the failure to comply with
this article. If three years pass from the date that the City Engineer requires a bond of a CTP and
it has not been necessary for the City to seek performance under the bond, then a bond will no
longer be required pursuant to this Division.
E. Indemnity. A CTP shall indemnify the city as specified by Section 283.057, Texas Local
Government Code, as amended. A CTP shall be exempt from all indemnity requirements of this
Division that are inconsistent with Section 283.057, Texas Local Government Code, as amended.
Sec. 25-100. Network Providers.
A. Authority required/Nonexclusive use. A Network Provider must provide evidence that
the Network Provider has acquired all required authorization pursuant to federal and/or state law,
prior to obtaining a Permit to use the Right-of-Way. The Network Provider's right to use and
occupy the Right-of-Way shall not be exclusive, and the City shall have the right to exercise its
police powers and manage its Rights-of-Way, based on Section 284, Texas Local Government
Code and all other federal and/or state laws.
B. Transfer and notice. A Network Provider shall notify the City Engineer of any sale,
transfer, merger or assignment of the ownership or control of a Network Provider's business within
30 days of such sale, transfer, merger or assignment. A Network Provider shall also maintain and
32
provide current point-of-contact information with the City Engineer always during which the
Neta�✓ork Provider uses the Right-of-Way.
C. Indemnity. A Network Provider shall indemnify the City as specified by Texas Local
Government Code, as amended.
D. Compliance with City's Design Manual. A Network Provider shall comply with the City's
Wireless Services (Small Cells/DAS) Design Manual, as amended."
SECTION II. Division 4. — Barricading of Construction and Public Rights-of-Way, Article
II — Construction and Repair, Chapter 25 — Streets, Sidewalks and Public Places, of the City of
Denton Code of Ordinances is repealed in its entirety.
SECTION III. Any person, firm, partnership or corporation violating any provision of this
ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by
fine in a sum not exceeding $2,000.00 for each offense. Each day that a provision of this ordinance
is violated shall constitute a separate and distinct offense.
SECTION IV. If any provision of this ordinance or the application thereof to any public
ins or circumstance is held invalid by any court, such invalidity shall not affect the validity of the
provisions or applications, and to this end the provisions of this ordinance are severable.
STC''I'I[7N V. That an offense committed before the effective date of this ordinance is
governed by prior law and the provisions of the Denton Code of Ordinances, as amended, in effect
when the offense was committed, and the former law is continued in effect for this purpose.
SECTION VI. In compliance with Section 2.09(c) of the City's Charter, this Ordinance
shall take effect on January 1, 2020, which is a date fourteen (14) days from the date of its passage,
and the City Secretary is hereby directed to cause the caption of this ordinance to be published
twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas,
within ten (10) days of the date of its passage.
T'l�e tiiotion fo a�}prn��� tl�is c�z�din�nce ��as mad� hy _ C-f� �1,e�YlI:�TL}1�.. anci
secaildc.�i by I�_ C��� ,�>>f.'� C: C-; '-� ; the ordinance was passed and approved by
the following vote ��- �i � :
Mayor Chris Watts:
Gerard Hudspeth, District 1:
Keely G. Briggs, District 2:
Jesse Davis, District 3:
John Ryan, District 4:
Deb Armintor, At Large Place 5:
Paul Meltzer, At Large Place 6:
Aye
v
✓
Nay Abstain Absent
PASSED AND APPROVED this, the �`�72day of ��� 2019.
33
ATTEST:
ROSA RIOS, CITY SECRETARY
f� r
BY: _ �/.�� �`"��,�
P��_
APPROVED AS TO LEGAL FORM:
AARON LEAL, C: TY ATTORNEY
BY:
34
: r_ �
CHRIS WATTS, MAYOR