ORD 2001-13TOWN OF TROPHY CLUB
ORDINANCE NO. 2001-13
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB,
TEXAS, RELATING TO THE MANAGEMENT OF PUBLIC RIGHT(S)-OF-WAY IN
A MANNER THAT ENSURES THE HEALTH, SAFETY, AND WELFARE OF THE
PUBLIC AND ADOPTING PROVISIONS AS FOLLOWS: PROVIDING
DEFINITIONS; PROVIDING FOR REGISTRATION, PERMITTING AND NOTICE
REQUIREMENTS; PROVIDING FOR RIGHT(S)-OF-WAY AND CONSTRUCTION;
PROVIDING FOR CONSTRUCTION, MAINTENANCE AND REPAIR;
PROVIDING FOR TREES AND LANDSCAPING; PROVIDING FOR
ATTACHMENTS TO SPACE IN DUCTS; PROVIDING FOR TEMPORARY
REMOVAL OF AERIAL WIRES; PROVIDING FOR RESTORATION; PROVIDING
FOR SAFETY; ESTABLISHING PROVIDER RESPONSIBILITIES; PROVIDING
INSURANCE; PROVIDING PENALTIES; PROVIDING FOR GOVERNING LAW
REQUIREMENTS; PROVIDING FOR INDEMNITY; PROVIDING FOR SURETY
BONDS; ESTABLISHING DIRECTOR'S AUTHORITY, ENFORCEMENT AND
OFFENSES; PROVIDING FOR VENUE; PROVIDING FOR NOTICE; PROVIDING
A CUMULATIVE CLAUSE; PROVIDING FOR SEVERABILITY; PROVIDING A
SAVINGS CLAUSE; PROVIDING FOR ENGROSSMENT AND ENROLLMENT;
PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, utility service providers (hereinafter referred to as "Provider(s)",) will erect
and maintain certain items of their physical plant in the Town of Trophy Club, Texas (hereinafter
referred to as the "Town") pursuant to such rights as have been granted them by and under the
laws of the State of Texas, and subject to the reasonable exercise of the police powers granted by
and under said laws to the Town;
WHEREAS, it is in the interest of the Town to establish procedures under which the
Providers shall maintain and construct their physical plant in the Right(s)-of-Way within the
Town's corporate limits in the future;
WHEREAS, in accordance with applicable Federal law, including but not limited to 47
U.S.C. § 25 (c); and state Iaw, including but not limited to § 54.205 and §14.008 of the Texas
Utility Code; and Chapter 283 of the Texas Local Government Code, the Town seeks to exercise
its historical rights to control and manage its Right(s)-of-Way on a competitively neutral and
nondiscriminatory basis, and implement certain police power regulation in the use of those
Right(s)-of-Way;
WHEREAS, the Town Council of the Town of Trophy Club, Texas is empowered under
§54.001 of the Texas Local Government Code to perform all acts and mare all regulations which
may be necessary or expedient for the promotion of the public health, safety and general welfare;
and
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WHEREAS, the Town Council of the Town of Trophy Club, Texas is empowered under
§51.001 of the Texas Local Government Code to adopt an ordinance or rule that is for the good
government of the Town.
NOW, THE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB, TEXAS, THAT:
SECTION 1.
DEFINITIONS
Whenever used in this Ordinance, the following words and terms shall have the
definitions and meanings provided in this section;
1.1 CONSTRUCTION: Any of the following activities performed by a person within a
public Right(s)-of-Way:
A. Installation, excavation, laying, 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 public Rights) -of -Way; installation of Facilities, boring or jacking of
utilities, or
C. Performance, restoration, or repair of pavement cuts or excavations.
1.2 CONTRACTOR: A person or company hired or retained to do construction for a Utility
Service Provider. Contractor includes all subcontractors, employees, agents, and hired
labor.
1.3 DIRECTOR: The Director of Public Works for the Town of Trophy Club Texas, or that
person's designee.
L4 DUCT OR CONDUIT: A single enclosed raceway for cables, fiber optics, or other
wires.
1.5 EXCAVATE OR EXCAVATION: Digging into or in any way removing or penetrating
any part of a Right(s)-of-Way.
1.6 EMERGENCY: Any event which may threaten public health or safety, including, but
not limited to, damaged or leaking water or gas conduit systems, damaged, plugged, or
leaking sewer or storm drain conduit systems, damaged underground electrical and
communications Facilities, or downed overhead pole structures.
1.7 FACILITIES: All Provider duct spaces, manholes, conduits, pipes, underground and
overhead passageways, and other equipment, structures and appurtenances and
transmission media, which are located in the Right(s)-of-Way or utility easements.
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L8 PERMIT: A document issued by the Town or an internal work order issued by a
Municipal Utility District located within the Town which authorizes the performance of
work under this Ordinance.
1.9 PERSON: A natural person, a corporation, a public service provider, a governmental
entity or agency, a limited liability company, joint venture, a business trust, an estate, a
trust, a partnership, an association or any other legal entity regardless of its structure.
1.10 PUBLIC RIGHT(S)-OF-WAY or RIGHT(S)-OF-WAY: The area on, below or above
a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement
in which the Town has an interest. The term does not include the airwaves above a
Right(s)-of-Way with regard to wireless telecommunications.
1.11 TOWN: The Town of Trophy Club, Texas.
1.12 TRANSMISSION MEDIA: All Provider cables, fibers, wires, fixed radios or other
physical devices used to transmit and/or receive communication signals, whether analog,
digital or of other characteristics, and whether for voice, video, or data or other purposes,
which are physically located in the Right(s)-of-Way.
1.13 UTILITY EASEMENT: A grant of one or more property rights by the property owner
to and/or for use by the public, a corporation, or another person or entity for installing
and maintaining utility services or Facilities across, over or under land, together with the
right to enter thereon with machinery and other vehicles necessary for the maintenance of
utility services or other Facilities.
1.14 UTILITY SERVICE PROVIDER OR PROVIDER: Any privately or publicly owned
entity which uses Right(s)-of-Way to furnish to the public any general public service,
including, but not limited to, sewer, gas, electricity, water, telecommunications, cable, or
telegraph, or any person or entity seeking to place Facilities on, in or over the Right(s)-
of-Way. When used in this Ordinance, the term shall include all persons, contractors,
subcontractors, officers, directors, partners, managers, superintendents, or other
authorized person exercising control over or on behalf of the Provider, including a Person
who requests and/or obtains a Permit on behalf of or at the direction of a Provider.
1.15 WORK PRINT: A diagram showing all work to be performed by the Provider including
all landscaping and restoration work required by Town ordinance, and providing all
information reasonably required by the Director so that the Provider's application or
request may be evaluated.
SECTION 2.
PROVIDER REGISTRATION; PERMITTING AND NOTICE REQUIREMENTS
2.1 PERMITS GENERALLY: Nothing in this Section shall relieve a Provider from its
obligation to obtain a Permit as required by this Ordinance.
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2.2 REGISTRATION: In order to protect the public health, safety, and welfare, a Provider
maintaining or operating existing Facilities in the public Right(s)-of-Way must register
with the Director in accordance with the following requirements:
A. The registration must be on a form furnished by the Director and made in
the name of the Provider that owns the Facilities. Providers shall register no later
than sixty (60) days after the effective date of this Ordinance; thereafter,
Providers shall register as required by subsection B below.
B. Registration expires January 31 of every other year after the calendar year
in which the Provider first registers. If registration is not renewed by the
expiration date, the Director shall furnish written notice to the Provider that the
registration has expired. If the Provider fails to renew its registration within thirty
(30) calendar days after the Director provides notice of the expiration, the
Facilities of the Provider shall be deemed to have been legally abandoned.
2.3 NOTICE: If information provided as part of the registration process changes, the
Provider shall inform the Director in writing not more than thirty (30) days after the date
the change occurs,
2.4 REQUIRED INFORMATION: The Provider shall also include the following
information with its registration:
A. The name of the Provider using the public Right(s)-of-Way, including any
business name, assumed name, or trade name the Provider operates under or has
operated under within the past five (5) years.
B. If the Provider is a certificated telecommunications provider, 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 Provider to use the public Rights) -of -Way;
D. The names, addresses, and telephone numbers of at least two persons who
will be general, day-to-day contacts for the Provider. At least one of the
addresses must be within the Dallas/Fort Worth metropolitan area.
E. The name and mailing address of the officer or agent designated as the
person authorized to receive service of process on behalf of the Provider.
F. The name, address, and telephone number of any contractor or
subcontractor, if known, who will be working in the Right(s)-of-Way on behalf of
the Provider.
G. The names and telephone numbers of at least two persons serving as
emergency contacts who can be reached by telephone twenty-four (24) hours a
day, seven (7) days a week. The telephone number shall be accessible without the
Town having to pay a long distance telephone or toll charge.
H. Proof of existing insurance coverage that complies with the requirements
of Section 11 of this Ordinance.
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2.5 PERMIT REQUIRED: A Provider seeking to place or seeking to cause the placement
of Facilities on, in or over the Public Right(s)-of-Way shall first file an application for a
construction Permit as required by this Ordinance and where applicable, shall pay the
appropriate fee as identified in the Town's fee schedule. The Town's fee schedule, as
amended, is incorporated herein by reference.
A. The Provider shall obtain any and all Permits required by the Town and
pay all applicable fees before beginning Construction, unless such construction
work is specifically exempted from the Permit requirement under Section 2.6 of
this Ordinance. The failure of the Provider to obtain a Permit prior to beginning
Construction in the Right -of -Way or to abide by the terms and provisions of that
Permit or this Ordinance will subject the Provider to a stop -work order from the
Town and enforcement action pursuant to this and all other applicable Town
Ordinances.
B. Permits shall be issued in the name of the Provider that owns the
Facilities.
C. No Provider or Contractor shall perform or cause to be performed
Construction in an area larger or at a location different, or for a longer period of
time than that specified in the Permit. If after the commencement of Construction
under an approved Permit, it becomes necessary to perform Construction for a
longer duration or in a larger or different area than originally authorized by the
Permit, the Provider or Contractor shall notify the Town immediately and shall
within one (1) business day file a supplemental application for the additional
Construction needed.
D. The Provider may contract the Construction work to be performed under a
Permit issued pursuant to this ordinance. The Provider shall be and remain
responsible for the performance of the Construction work under the Permit and all
insurance and financial security as required by this Ordinance.
E. If the Provider fails to act upon any Permit within forty-five (45) calendar
days of issuance, the Permit shall become invalid and the Provider will be
required to obtain another Permit.
F. At the time that a Permit application is filed, the Provider shall supply to
the Town, at the Provider's expense, all documentation and data, including but
not limited to, landscaping plans, maps, construction schedules and equipment
location drawings necessary to ensure compliance with the terms of this
Ordinance, other Town ordinances, rules, and regulations, or other applicable
provisions of law.
G. Providers shall submit to the Director, "as built" plans within ninety (90)
days of completion of Construction of Facilities.
2.5 CONSTRUCTION EXEMPT FROM PERMIT REQUIMEMENT: A Permit shall
not be required prior to the commencement of Construction if one or more of the
following conditions exist:
A. Construction work performed in the event of an Emergency, as defined
herein;
B. The Construction work performed is limited to the installation of Facilities
necessary only to initiate service to a customer's property;
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C. Construction work performed pursuant to a valid franchise agreement with
the Town which specifically exempts such work from the requirement to obtain a
Permit. Provider shall also be exempt from the payment of associated Permit fees
if exempt from that fee by the terms of a valid franchise agreement or by
applicable law.
2.7 REFUSAL TO ISSUE PERMIT: The Director may refuse to issue a Permit if:
A. The proposed Construction will substantially interfere with vehicles or
pedestrians and no procedures, or procedures inconsistent with this Ordinance,
have been implemented to minimize the interference.
S. The proposed construction will substantially interfere with another activity
for which a Permit has been issued, or will conflict or interfere with existing
Facilities along the Right(s)-of-Way;
C. The proposed barricading, signage, warning, or other traffic control
procedures or equipment do not comply with the Texas Manual on Uniform
Traffic Control Devices, as amended;
D. The Proposed construction, incidental traffic control, or other Permitted
activity, or the manner in which it is to be performed, will violate a Town
ordinance or regulation or a state or federal law or regulation; or
E. The Provider:
1. Failed to furnish all the information required by this Ordinance;
2. Knowingly or intentionally furnished materially false or incorrect
information to the Director;
3. Failed, except for good cause shown, to file the application on the
approved form within the time limits prescribed by this Ordinance;
4. Failed or refused to submit work plans or plans of record as
required by this Ordinance;
5. Was convicted of violating a provision of this Ordinance twice
within the two-year period immediately preceding the date of application;
6. Failed to furnish or have on file with the Director the insurance
required under this Ordinance; or
7. Is not in compliance with applicable requirements of an existing
Permit issued under this Ordinance.
2.8 SUSPENSION OR REVOCATION OF A PERMIT:
A. The Director may suspend Construction or revoke an issued Permit based
upon the same grounds for which a Permit may be denied under Section 2.7
above, or if the Provider:
1. Commences or performs construction in violation of an applicable
requirement of this Ordinance or Permit;
2. Creates or is reasonably likely to create a public health or safety
hazard by performance of the Construction in question;
3. Fails to comply with a order or regulation of the Director; or
4. Fails to comply with restrictions or requirements of other Town
ordinances or state or federal laws or regulations applicable to the
Construction.
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B. In the event that the Director suspends Construction at a site, or refuses to
issue, suspends, or revokes a Permit, the Director shall provide written notice to
the Provider stating the basis upon which such action has been taken.
Construction that is suspended may not resume until the Director determines that
the Provider has corrected the violation, noncompliance, or hazard that caused the
suspension.
C. A Permit that has been revoked may be reinstated by the Director if the
Director determines that:
1. the Provider has corrected the violation, noncompliance, or hazard
that caused the revocation; and
2. the health or safety of the public is not jeopardized by reinstating
the Permit or Construction.
2.9 VARIANCE: Any variance from the requirements of this Ordinance must be approved
in writing by the Director prior to the commencement of the activity for which the
variance is requested. The Director may grant a variance only if an extreme hardship
exists and the public health, safety, welfare, and convenience is not adversely affected by
granting the variance. The Director may not approve a variance that would give a
competitive advantage to one Provider over another Provider, providing the same or
similar service. The Director may not grant a variance from the indemnity, insurance or
bonding requirements of this Ordinance, except as specifically provided.
2.10 APPEALS: The appeal process shall be as follows:
A. Appeals may be filed pursuant to this Ordinance for decisions of the
Director, including but not limited to decisions to suspend or refuse to allow
Construction work and/or decisions to deny, suspend, or revoke a Permit.
However, the appeal process provided by this Ordinance shall not be available for
criminal violations of this Ordinance.
B. A Provider may appeal decisions made by the Director pursuant to this
Ordinance by filing a written appeal with the Town Manager within five (5)
working days of receipt of the stop work order, or the denial, suspension, or
revocation of the Permit, or other decision of the Director. An appeal filed
pursuant to this Ordinance shall specifically state the basis for the aggrieved
party's challenge to the Director's decision under this Ordinance.
C. Decisions of the Town Manager shall be issued within three (3) working
days of receipt of the written appeal. Decisions of the Town Manager shall be
final, The Town Manager shall notify Town Council of any appeal decisions.
2.11 NOTICE REQUIREMENTS:
A. In the event that an Emergency requiring Construction must be performed,
Provider shall notify the Town in writing within two (2) business days after the
Emergency related Construction response, including a detailed description of the
work performed. An updated map of any Facilities that were relocated, altered,
added or repaired shall be provided within thirty (30) days of the date upon which
the emergency occurs. Notwithstanding the foregoing, Provider shall
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immediately contact 9-I-1 upon the occurrence of an Emergency and notify the
appropriate agencies of the nature of the Emergency.
B. For all other Construction work specifically exempted from the Permit
requirement by Section 2,6 above, Provider shall submit to Town a monthly
report identifying the location of the Construction work, stating whether the work
was performed by Provider or a third party on behalf of the Provider, and stating
the basis for the Permit exemption claimed. The report required by this paragraph
shall be submitted within five (5) business days following the end of the month
during which the Construction work was performed. Providers failing to comply
with the reporting requirements of this section shall be subject to the penalties
specified in Section 12 of this Ordinance.
C. For all Construction for which a Permit is required, Provider shall give the
Town written notice at least five (5) business days prior to the commencement of
Construction. Such notice shall identify the location and nature of the
Construction work Alternatively, Provider shall obtain a Permit five (5) business
days prior to the commencement of such Construction. A properly completed
Permit application filed within (5) business days prior to commencement of
Construction shall serve as notice to Town for purposes of this paragraph. The
Director may approve the commencement of Construction at any time after
issuance of a Permit.
D. At least five (5) business days prior to the beginning of each month, the
Provider shall give the Town a monthly schedule of planned Construction work to
be performed during the month. Such schedule shall state whether a third party
or the Provider's personnel will be used for construction and/or maintenance,
shall specify the location of the proposed Construction work, shall specify the
approximate amount of time needed for completion of the proposed Construction
work, and shall identify all potential traffic or street disturbances related to or
arising out of such Construction. A Permit shall be required for all Construction
work identified on the monthly schedule unless such work is exempt pursuant to
Section 2.6 above. Provider shall notify Town of all changes to or modification
of information provided in the monthly schedule required by this section within
five (5) business days of such change or modification. The Provider shall notify
the Town within twenty-four (24) hours of completion of Construction or
abandonment of a Construction project for which a Permit is required under this
ordinance.
E. Private property owners shall be notified via a door hanger or other paper
document securely attached to the front door of their residence if a Provider has or
will access a dedicated utility easement for the purpose of performing work. Such
notice shall state the name and address of the Provider performing or causing the
work to be performed, the name of the employee or agent leaving the notice, and
the name and telephone number of a contact person who is able to respond to
inquiries. The person listed as the point of contact shall be accessible during
normal business hours. The notice shall also state whether the work has been
completed. If the work has not been completed, the notice shall identify a time
frame for completion of the work.
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SECTION 3.
RIGHT(S)-OF-WAY AND CONSTRUCTION
3.1 NO BURDEN ON RIGHTS) -OF -WAY: Provider shall not erect, install, construct,
repair, replace or maintain its Facilities in such a fashion as to unduly burden the present
or future use of the Right(s)-of-Way. If the Town in its reasonable judgment determines
that any portion of the Facilities are an undue burden, Provider, at its expense, shall
modify its Facilities or take such other actions as the Town may determine is in the public
interest to remove or alleviate the burden, and the Provider shall do so within thirty (30)
days of written notice by Town.
3.2 RELOCATION OF FACILITIES: The Provider shall, at its expense, protect, support,
disconnect, relocate or remove from the Right(s)-of-Way any portion of its Facilities
when reasonably required to do so by the Town due to street or other public excavation,
construction, repair, grading, regrading, traffic conditions, the installation of sewers,
drains, water pipes, power or signal lines, track ways or tracks; the construction or repair
of municipally owned Facilities; the vacation, construction or relocation of streets or any
other type of structure; or other improvements by the Town or another public agency
which are reasonably necessary for the protection of the public health, safety or welfare.
Town shall give Provider at least one hundred and twenty (120)days prior written notice
of a request under this paragraph. Additionally, if Town's request for removal or
relocation of Facilities is made in order to allow the widening or straightening of a street,
Town shall specify the new location for the Facilities along the Right(s)-of-Way of the
street before Provider is required to relocate such Facilities. The Town may temporarily
disconnect, remove or relocate any of the Provider's Facilities which have not been
disconnected, removed or relocated within the one hundred and twenty (120) day period
following Town's written notice of request under this paragraph, and the Provider shall
reimburse the Town all direct and indirect costs including a reasonable administrative
fee. The obligation of a Provider to pay the costs incurred as a result of this paragraph
shall be based upon Provider's payment obligation under applicable state or federal law.
If Provider seeks to claim an exemption from the payment of costs incurred under this
paragraph, Provider shall notify Town of the statutory basis for the exemption claimed
and request an exemption from such costs. Town shall grant such exemption as required
by applicable state or federal law.
3.3 EMERGENCY DECLARED BY TOWN: If the Director determines during
Construction that an Emergency repair to a Rights) -of -Way is necessary to correct a
situation that is hazardous to the public, the Director shall immediately notify the
Provider. If the Provider does not commence the Emergency repair within the time
required by the Director, the Director may in his sole discretion, perform or cause the
performance of such repair work as is necessary to correct the hazardous situation. If
however, the Director is unable to notify the Provider or is unable to determine the
identity of the Provider, then in his sole discretion, Director may take all actions
necessary to disconnect, remove or relocate any and all Facilities of Provider in order to
respond to the Emergency. Town shall notify Provider within two (2) business days after
the occurrence of such Emergency event. Neither the Town nor any agent, contractor or
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employee thereof shall be liable to the Provider, its customers or third parties for any
damages caused them or the Facilities due to any activities described in this paragraph.
Provider shall reimburse Town for all direct and indirect costs of performing work under
this Section. The obligation of a Provider to pay the costs incurred as a result of this
paragraph shall be based upon Provider's payment obligation under applicable state or
federal law. If Provider seeks to claim an exemption from the payment of costs incurred
under this paragraph, Provider shall notify Town of the statutory basis for the exemption
claimed and request an exemption from such costs. Town shall grant such exemption as
required by applicable state or federal law.
3.4 MINIMUM INTERFERENCE: The Facilities shall be erected and maintained by the
Provider to cause minimum interference with the use of the Right(s)-of-Way and with the
rights or reasonable convenience of property owners. Construction work on private
property shall not cause or create a hazardous condition to exist on the Right(s)-of-Way.
3.5 RIGHTS) -OF -WAY USAGE: To the extent allowed by applicable state and federal
law, this Ordinance authorizes the Construction of Facilities in the Right(s)-of-Way
which have been dedicated for compatible uses, subject to the requirements in the balance
of this Section and of this Ordinance. In using all Rights) -of -Way, the Provider shall
comply with all federal, state, and local laws, including all Town Ordinances. Without
limitation, the Provider shall ensure that:
A. The safety, functioning and appearance of the Right(s)-of-Way, and the
convenience and the safety of other persons, shall not be adversely affected by the
installation or construction of Facilities necessary for normal operations;
B. Any portion of the Right(s)-Of-Way that are in any way disturbed by the
Construction or repair of Facilities shall be restored and maintained to as good or
better condition than existed previously. Provider's maintenance obligation shall
continue for two years after completion of such work;
C. The cost of the installation, Construction, operation, or removal of such
Facilities shall be borne by the Provider as required by state law;
D. Notice has been given prior to the commencement of Construction in
accordance with this Ordinance. Such notice shall be given by either the
Provider, its Contractor, or an authorized agent of either entity. The notice shall
include the name, address and phone number of the Contractor who will actually
perform the Construction work, including the name and telephone number of an
individual who will be available twenty four hours a day, seven days a week, until
the Construction is completed. Provider shall be deemed to be in compliance with
this requirement when either a properly completed Permit application is Bled
within five (5) business days prior to the commencement of Construction or five
(5) business days notice is given as required by Section 2.11(C) of this Ordinance;
E. A three foot by three foot information sign stating the identity of the
Contractor performing the Construction work, telephone number, and Provider's
identity and telephone number shall be placed at the location where Construction
is to occur at least 24 hours prior to the beginning of work and shall continue to
be posted at the location until the Construction work and all restoration as
required by this Ordinance is completed.
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F. All persons engaged in Construction in the Right(s)-of-Way shall display
on their persons and vehicles the identity of the entity by which they are
employed. Additionally, the Provider shall identify temporarily during the course
of Construction its Facilities and drops (by color code, stamping, engraving, tags,
stickers, or other appropriate method selected by the Provider) so as to distinguish
the Provider's equipment from that of all other utility service providers in the
Town.
G. Required above ground infrastructures shall be placed at the junction of
the side yard and back yard utility easement.
3,6 EASEMENT ACQUISITION: Any easements over or under private property necessary
for the construction or operation of the Facilities shall be arranged by Provider. Any
utility easements over or under property owned by the Town other than the Right(s)-Of-
Way
ight(s)-OFWay shall be separately negotiated with the Town, except that the Provider may use
general utility easements that are dedicated for compatible uses on property owned by the
Town. Unless specifically exempted by the terms of this Ordinance, Provider shall
obtain a Permit prior to the commencement of Construction or use of any Right(s)-of-
Way.
3.7 UTILITY CROWDING: Due to the potential for overcrowding in the Town's Right(s)-
of-Way, the Town encourages all Providers to install conduits that may be over -sized,
duplicated, or placed in multiple configurations and also encourages Providers to share
the use of their respective underground conduits and multiple configurations at such
locations. The Town reserves its right to impose a reasonable limitation on the number of
such Providers that have access to its property based upon a demonstrated space
constraint requiring such limitation.
3.$ REMOVAL OF OBSOLETE FACILITIES/COOPERATION: When the Provider
opens a trench, accesses a conduit or boring, or is working on aerial locations, it shall
remove and dispose of its unusable and inactive Facilities (excluding those held for future
use) from such locations. When the Provider receives notification from the Town or
another Provider that a Provider will be opening a trench or access to borings, the
Provider receiving such notice shall remove all of its obsolete Facilities from such
location while it is open,
39 UNDERGROUND FACILITIES: The Town requires that the Provider place their lines
underground. The Provider shall place its wires in such area underground without
charge, expense or liability to the Town. The Provider may apply with the Town for a
waiver from this requirement in accordance with Section 2.10 of this Ordinance. This
shall not affect elevated water storage tanks and related infrastructure nor those wires that
were in place and in compliance with Town ordinances prior to the date of the passage of
this Ordinance.
3.10 POLES: Provider shall not erect any utility poles without first obtaining a Permit from
the Town in accordance with applicable Town ordinances.
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3.11 ABANDONMENT OF RIGHT{SI-OF-WAY: If a Right(s)-of-Way where the Provider
has Facilities is abandoned, eliminated, discontinued or closed, the Provider shall be
notified of same and all rights of the Provider under this Ordinance to use same shall
terminate. Town shall give Provider notice of such action as required by law, and
Provider shall immediately remove its Facilities from such street or Right(s)-Of-Way
unless the Provider obtains any necessary easements from the affected property owners to
use the former street or Right(s)-of-Way or a court orders the provision of such
easements. Where reasonably possible and to the extent consistent with the treatment of
other similar utility Facilities located in the Right(s)-Of Way, the Town shall reserve
easements for the Provider to continue to use the former Right(s)-of--Way. The Provider
shall bear the cost of any removal or relocation of its Facilities unless the abandonment is
primarily for the benefit of a private party, in which case the private party shall bear such
costs. Thirty (30) days notice of any proposed abandonment proceedings involving its
Facilities shall be given by publication in the official newspaper of the Town.
3.12 ABANDONMENT OF FACILITIES/PROVIDER: Any Provider that intends to
discontinue use of any Facilities within the Rights) -of -Way shall notify the Director in
writing of the intent to discontinue use. Such notice shall describe the Facilities for
which the use is to be discontinued, a date of discontinuance of use, which date shall not
be less than thirty (30) days from the date such notice is submitted to the Director, and
the method of removal and restoration. The Provider may not remove, destroy, or
permanently disable any such Facilities during such thirty (30) day period without the
written approval of the Director. After thirty (30) days from the date of such notice, the
Provider or Contractor shall remove and dispose of such Facilities as set forth in the
notice, as the same may be modified by the Director, and shall complete such removal
and disposal within six months, unless additional time is requested from and approved by
the Director.
3.13 SUPERVISION BY TOWN OF LOCATION OF CONDUITS PIPES AND
CABLES: The location and route of all conduits, pipes, cables and any other
infrastructure to be placed and constructed by the Provider in the Construction and
maintenance of Facilities in the Town, and the location of all conduits to be laid by the
Provider within the limits of the Town under this Ordinance, shall be subject to the
reasonable and proper regulation, control and direction of the Town Council, of the
Director or any Town official to whom such duties have been or may be delegated.
SECTION 4.
CONSTRUCTION/MAINTENANCE /REPAIR
4.1 RE,PAIltS/CONSTRUCTION STANDARD: All construction must be done in a good
and workmanlike manner and in faithful and strict compliance with the Permit, this and
other applicable Town Ordinances, and within regulations promulgated by the Director
relating to construction within the Right(s)-of--Way.
4.2 CONSTRUCTION -GENERAL: The Provider shall meet or exceed all requirements set
out in this Ordinance and those set out in other applicable Town ordinances.
QATOWNSECTending OrdinanceslRight of Way 060401 ORD 2001-13.doe -12-
4.3 MAINTENANCE: All Construction performed must be maintained to the satisfaction
of the Director for two (2) years after the date of completion of the Construction. Any
damage to or any defect or other problem caused by or resulting from the Right(s)-of-
Way Construction which occurs at any time within two years after the completion of
Construction must be corrected to the satisfaction of the Director, within 10 days after the
Director provides written notice to the Provider to correct the damage, defect, or other
problem. The filing of an appeal pursuant to Section 2.10 of this Ordinance shall toll
Provider's obligation under this Section until the conclusion of the appeal process
provided therein.
4.4 REPAIRS: All damage caused directly or indirectly to the Right(s)-of-Way surface or
subsurface outside the pavement cut or excavation area shall be regarded as a part of the
pavement cut or excavation and must be included in the total area repaired. If repaired by
the Town, the Provider shall reimburse the Town for the actual direct and the indirect
costs of the repair.
4.5 BACKFILL: The Director shall notify the Provider if the backfill on a Construction site
settles at any time during the two year maintenance period required in this section,
causing subsidence of the pavement of one-half inch or more, vertically, measured in any
three foot horizontal direction. Upon notification, the Provider shall schedule appropriate
repair work and promptly notify the Director of the anticipated dates of commencement
and completion of the repair work. If the repair work is not commenced or completed
within the agreed upon time schedule, or if no response is received by the Director within
ten (10) days after notification to the Provider, the repair work may be performed by the
Town. The Provider shall reimburse the Town for the actual costs of any repair work
performed by the Town, including the reasonable costs of collection of such sum.
4.6 REQUIRED DEPTH: Facilities shall be installed to a depth approved by the Public
Works Department and consistent with applicable industry standards.
4.7 WEATHER: No Construction work, including but not limited to underground
installation, or other work activities may be initiated when weather conditions prohibit
proper restoration of disturbed areas in a timely manner, except in the case of an
Emergency as defined by this Ordinance. In the event of such emergency, Provider shall
notify Town within one (1) business day after the occurrence of such Emergency event.
4.8 RIGHT OF INSPECTION: The Town shall have the right to inspect all Construction
and restoration work for compliance with this and all other applicable Ordinances and
any Permit granted pursuant to this Ordinance. At the sole discretion of Town, tests may
be conducted to verify compliance with the requirements of Permits issued hereunder and
all applicable Ordinances, state or federal laws, rules, or regulations. In the event that the
result of any test or series of tests indicates noncompliance with the foregoing, Provider
shall reimburse Town for all reasonable costs of those tests and shall take all remedial
action to obtain compliance within thirty (30) days of receipt of notice by Town.
QATOWNSECTending OrdinancesTight or Way 060401 ORD 20x1-13.doc - 13-
4.9 COMPLIANCE WITH LAW: The Provider shall be subject to all applicable laws,
ordinances or regulations of the Town as may exist or may hereafter be amended in the
course of Construction of its Facilities in the Town.
4.10 AS-BUILTS/LOCATION OF FACILITIES: Provider shall furnish accurate, complete
and current maps and records of its Facilities to the Town as set forth below:
A. The Provider shall furnish two complete sets of "as -built" maps and
records to the Town and the Provider shall provide the Town copies of any new or
revised "as -built" maps or comparable drawings as they are generated for portions
of the Provider's Facilities located within the Town (and in no event later than
ninety (90) days after construction and activation of any portion of the Facilities).
Upon request by the Town in an Emergency, the Provider, as soon as possible
(but no more than five (5) business days from the request), shall inform the Town
of any changes from such maps and records previously supplied and shall mark
maps provided by the Town so as to show the location of its Facilities.
B. The "as built" maps shall include at a minimum the depth and location of
all system and Facility routing, all emergency shut off valves and controls, and
the location of appurtenant structures, such as nodes, amplifiers, power supplies
and system monitor test points, and shall be drawn to a scale and upon such media
as required by the Director. Provider shall specifically identify all information
that it deems to be proprietary, confidential, or customer specific. Provider may
request that the Director accept a document in substitution for an "as -built" plan.
Director shall accept such alternate document if in the Director's reasonable
discretion that document provides the minimum information as required by this
Ordinance.
C. If maps and records submitted under this section include information
expressly designated by the Provider as a trade secret or other confidential
information protected from disclosure by state law, the Director will request an
opinion for the Texas Attorney General as authorized by state law. This
subsection may not be construed to authorize a public service provider to
designate all matters in its records as confidential or as trade secrets.
SECTION 5.
TREES/LANDSCAPING
5.1 TREE TRIMMIlVG: Provider shall notify the Town, prior to undertaking, contracting
for, or directing the trimming of trees in the Right(s)-of-Way. Except in Emergencies, all
trimming of trees on public property shall have the prior written approval of the Director.
Prior to any trimming of trees on private property, Provider shall give five (5) days
written notice to the property owner or occupant. Should the Provider, its contractor or
agent, fail to remove trimmings within twenty-four (24) hours of completion of the work,
the Town may remove the trimmings or have them removed, and submit an invoice to
Provider. Payment in full shall be made by Provider within thirty (30) days of the date of
Town's invoice.
QATOWNSECTending Ordinances\Right of Way 060401 ORD 2001-13.doc -14-
5.2 LANDSCAPING: The following applies to landscaping within the Right(s)-of-Way;
A. Provider shall submit with its Permit application a landscape plan along
with a copy of its Work Print. The Iandscape plan shall identify the impact of the
Construction on existing landscaping and remedial measures that Provider will
take to restore the property to a condition that is as good as or better than the
condition of the property prior to the Construction being performed. Provider's
plan for restoration must be approved by the Director prior to the issuance of a
Permit. The Director may inspect the restoration for compliance up to two (2)
years after completion. Upon notice to provider of noncompliance, Provider shall
perform all restorative work necessary to comply with the previously approved
Iandscape plan. All unused materials and other debris shall be removed and
properly disposed of in a timely manner.
B. Where underground Construction work will encroach under the branch
spread of trees or shrubs, proposed structures and conduit shall be relocated
outside of the tree or shrub drip line, or the Facilities in question shall be installed
by boring the distance of the branch spread. The placement of such structures and
conduits shall be identified on Provider's landscape plan and approved by the
Director prior to the issuance of a Permit.
C. Provider's landscape plan shall also identify the erosion control measures
to be used on a work area. Provider's proposed erosion control measures must be
approved by the Director prior to the issuance of a Permit. Erosion control
measures shall be used for all Construction work, regardless of whether a Permit
is required under this Ordinance.
SECTION G.
ATTACHMENTS TO SPACE IN DUCTS
If the Town desires to place Facilities or systems for its internal use in any Provider duct, a non -
contingent agreement shall be prerequisite to such attachment(s) or such use of any duct by the
Town. Nothing contained in this Ordinance shall obligate or restrict the Provider in exercising
its rights voluntarily to enter into wire space or facility agreements with other wire --using
companies which are authorized to operate within the Town.
SECTION 7.
TEMPORARY REMOVAL OF AERIAL WIRES
The Provider, on the request of any person, shall remove or raise or lower its wires within the
Town temporarily to permit the moving of houses or other bulky structures. The expense of such
temporary removal, raising or lowering of wires shall be paid by the benefitted party or parties,
and the Provider may require such payment in advance. The Provider shall be given not less
than forty-eight (48) hours advance notice to arrange for such temporary wire changes. The
clearance of wires above ground shall conform to the basic standards of the National EIectrical
Safety Code, National Bureau of Standards, and the United States Department of Commerce as
promulgated at the time of erection thereof
QATOWNSEMPeading Ordinances\Right of Way 060401 ORD 2001-13.doc - 15 -
SECTION S.
RESTORATION
8.1 GENERAL: The Provider shall, at its sole cost and expense, restore any and all
portion(s) of the Right(s)-of-Way affected by Construction or other work performed by
Provider within ten (10) business days of completion of such Construction or other work.
Provider's responsibility for restoration shall include all expense for the restoration and
replacement of property, real or personal, disturbed, damaged or in any way injured by or
on account of the Provider or by its acts or omissions. All such restoration shall be in
accordance with the specifications and standards adopted by the Town, and shall result in
a work site condition equal to or better than that which existed prior to the
commencement of Construction. Restoration must be to the reasonable satisfaction of the
Director. In the event that the Provider and its contractors and subcontractors fail to make
such repair within the time specified by the Town or in accordance with the Town's
specifications and standards, the Town shall be entitled to complete the repair in
accordance with applicable standards and the Provider shall pay the Town all costs of
such repair. Prior to undertaking Construction or maintenance efforts which will in any
way alter or change the streets or Right(s)-of-Way, Provider shall make a video recording
or photograph(s) of the affected area and submit a copy of the photograph(s) or video
recording to the Director. Restoration obligations of the Provider include but are not
limited to the following:
A. Replacement of all sod or ground cover with sod or ground cover that is
the same or an equivalent to the type of ground cover impacted during work,
either by sodding or seeding.
B. Installation of all manholes and handholes, as required;
C. Backfilling and compaction of all bore pits, potholes, trenches or any other
holes, unless other safety requirements are approved by the Director. This must
be done on a daily basis unless other safety requirements are approved by the
Director;
D. Leveling of all trenches and backhoe lines;
E. Restoration of excavation site to Town specifications as identified in the
administrative policies of the Town, and when applicable, the North Central
Texas Council of Government's (NCTCOG) Standard Specifications for Public
Works Construction, as amended; and Restoration of all landscaping and other
affected structures such as sprinkler systems and mailboxes.
F. Restoration of the entire excavation site to the specifications and
requirements set forth herein and to the NCTCOG Specifications, when
applicable.
G. Restoration of all landscaping, ground cover, and sprinkler systems.
H. Restoration of any damaged traffic control devices, including but not
limited to embedded loop detectors, pavement markings, underground conduits,
and signs;
I. Restoration of special street, sidewalk, or drive approach surfaces
designed to present unique visual images, color, or designs (regardless of the type,
color, pattern, or texture of special material or process used) must be done so that
Q: T'OWNSECTcnding OrdinancesMght of Way 060401 ORD 2001-13.doc -16-
the restoration matches the color, texture, and pattern of the surrounding special
surfaces.
J. All locate flags shall be removed during the clean up process by the
Provider or its Contractor at the completion of the Construction.
K. Restoration must be made in a timely manner as specified by the Town in
the Permit and must be to the reasonable satisfaction of the Director.
L. The surface or subsurface of any street within the Town disturbed by the
Provider in building, constructing, renewing, or maintaining its Facilities shall be
restored within a reasonable time after completion of the work in compliance with
Town ordinances, rules, standards or other applicable provisions of law and
maintained to the satisfaction of the Town Council, or of any Town official to
whom such duties have been or may be delegated, for a period of two (2) years
following completion of the restoration, after which time responsibility for the
maintenance shall revert to the Town. No such street, avenue, alley, highway,
viaduct or public ground shall be encumbered for a longer period than shall be
necessary to execute the work.
M. If the backfill on a construction site settles at any time during the two (2)
year period after completion of Construction, causing subsidence of the ground
equal to or greater than one-half inch (1/2"), vertically, measured in any three foot
horizontal direction, Provider shall fill and level such site within five (5) business
days of notice by Town. If the repair work is not completed within such time
period, the Town may perform such work. Provider shall reimburse the Town for
the actual costs incurred by the Town in the performance of the work, including
reasonable costs of collection of such sum.
SECTION 9.
SAFETY
9.1 WARNING DEVICES DURING CONSTRUCTION: During all Construction, the
Provider shall maintain reasonable barriers, lights, and other warning devices to the users
of the streets or Right(s)-of-Way in compliance with applicable government regulations
requiring and pertaining to such barriers or as reasonably requested by the Director.
Should it become necessary to impede the normal flow of vehicular or pedestrian traffic,
the Provider shall employ roadway closure or partial closure practices as delineated in the
State Manual of Uniform Traffic Control Devices, as amended, and in the ordinances and
standards established by the Town, and shall submit an alternate traffic routing plan to
the Town's Department of Public Safety prior to implementing its proposed plan.
9.2 EMERGENCY NOTIFICATION: The Provider shall provide the Director with a
twenty-four (24) hour emergency telephone number at which a named responsible adult
representative of the Provider (not voice mail or a recording) can be accessed in the event
of an Emergency.
Q:1TOWNSECTending OrdirmcesUght of Way 060401 ORD 2001-13,doc -17-
SECTION 10.
PROVIDER RESPONSIBILITY
10.1 UTILITY NOTIFICATION PROGRAM: The Provider shall participate in and be a
member of the state's utility notification program, whether provided for by statute or
otherwise.
10,2 PROVIDER'S RESPONSIBILITY FOR FACILITIES:
A. A Provider shall:
1. Properly construct, install, operate, repair, relocate, upgrade, and
maintain its Facilities existing within the Right(s)-of-Way; and
2. Repair or restore any damage to other Facilities, the Right(s)-of-
Way, or private property that occurs as a result of improper construction,
installation, operation, repair, relocation, upgrade, or maintenance of the
Facilities in the Right(s)-of-Way.
B. Facilities shall be considered to be improperly constructed, installed,
operated, repaired, relocated, upgraded, or maintained if:
1. the construction, installation, operation, repair, relocation, upgrade,
or maintenance endangers public health or safety or creates a public
inconvenience;
2. the Facilities encroach upon private property for which Provider
has not obtained an easement or other legal authority to encroach upon
such private property, or the Facilities extend outside the Rights) -of -Way
location designated in the Permit;
3. above -ground Facilities located within the Right(s)-of-Way are
less than one and one-half feet from the face of the curb or less than six
inches from a sidewalk;
4, the construction, design, or configuration of the Facilities does not
comply with applicable local, state, or federal laws or regulations;
5. the construction, installation, operation, repair, relocation, upgrade
or maintenance in the Right(s)-of-Way is conducted in a manner that
damages private property or another Provider's Facilities;
6. the Facilities are not capable of being located or maintained using
standard practices; or
7. the Facilities are placed in an area that interferes with another
Provider's Facilities.
C. It is a defense to prosecution under Subsections (B)(3) and (13)(4) of this
section that the Facilities were constructed or installed in the Right(s)-of-
Way
ights)-ofWay before May, 2001.
D. Nothing in this Section may be construed to diminish the authority of the
Director to require specific placement of specific Facilities.
QATOWNSECTunding Ordinances\Wght or Way 060401 ORD 2001-13.doc - 18-
SECTION 11.
INSURANCE
11.1 INSURANCE: During the term of this Ordinance, Providers, other than governmental
entities, shall maintain, or cause to be maintained, in full force and effect and at its sole
cost and expense, the following types and limits of insurance:
A. Worker's compensation insurance meeting Texas' statutory requirements
and employee's liability insurance with minimum limits of Five Hundred
Thousand Dollars ($500,000) for each accident.
B. Comprehensive commercial general liability insurance with minimum
limits of Five Million Dollars ($5,000,000) as the combined single limit for each
occurrence of bodily injury, personal injury and property damage. The policy
shall provide blanket contractual liability insurance for all Permits, and shall
include coverage for products and completed operations liability, independent
contractor's liability; and coverage for property damage from perils of explosion
and collapse or damage to underground utilities, commonly known as XCU
coverage.
C. Automobile liability insurance covering all owned, hired, and nonowned
vehicles in use by the Provider, its employees and agents, with personal protection
insurance and property protection insurance to comply with the provisions of the
Texas No -Fault Insurance Law, including residual liability insurance with
minimum limits of Five Million Dollars ($5,000,000) as the combined single limit
for each occurrence for bodily injury, personal injury and property damage.
D. At the start of and during the period of any construction, builders all-risk
insurance, providing coverage on all buildings and structures which will be
installed or constructed as part of the Facilities together with an installation floater
or equivalent property coverage covering cables, materials, machinery and
supplies of any nature whatsoever which are to be used in or incidental to the
construction of the Facilities.
E. Upon completion of the construction of the Facilities, the Provider shall
substitute for the foregoing insurance policies of fire, extended coverage and
vandalism and malicious mischief insurance on the entire completed system. The
amount of insurance at all times shall be representative of the insurable values
installed or constructed.
F. All policies other than those for Worker's Compensation shall be written
on an occurrence and not on a claims made basis.
G. The coverage amounts set forth above may be met by a combination of
underlying and umbrella policies, so long as in combination the limits equal or
exceed those stated.
11.2 NAMED INSUREDS: All policies, except for business interruption and worker's
compensation policies, shall name the "Town of Trophy Club, a municipal corporation of
the State of Texas, and all associated, affiliated, allied and subsidiary entities of the
Municipality, now existing or hereafter created, and their respective officers, boards,
commissions, employees, agents and contractors, as their respective interests may
appear" as additional insureds (herein referred to as the "Additional Insureds"). Each
QATOWNSECTending Ordinances\Right of Way 060401 ORD 2001-13.doc - 19-
policy which is to be endorsed to add Additional Insureds hereunder, shall contain cross -
liability wording, as follows:
"In the event of a claim being made hereunder by one insured for
which another insured is or may be liable, then this policy shall
cover such insured against whom a claim is or may be made in the
same manner as if separate policies had been issued to each
insured hereunder"
11.3 EVIDENCE OF INSURANCE: Certificates of insurance for each insurance policy
required to be obtained by the Provider in compliance with this Section, along with
written evidence of payment of required premiums, shall be filed and maintained with the
Town annually during the term of this Ordinance. The Provider shall immediately advise
the Indemnitees of any claim or Iitigation that may result in liability to them,
11.4 CANCELLATION OF POLICIES OF INSURANCE: All insurance policies
maintained pursuant to this Ordinance shall contain the following endorsement:
"At least sixty (60) days prior written notice shall be given to the
Town of Trophy Club by the insurer of any intention not to renew
such policy or to cancel, replace or materially alter same, such
notice to be given by registered mail"
11.5 INSURANCE COMPANIES: All insurance shall be effected under valid and
enforceable policies, insured by insurers licensed to do business in the State of Texas or
surplus line carriers on the State of Texas Insurance Commission's approved list of
companies qualified to do business in the State of Texas. All insurance carriers and
surplus line carriers shall be rated A+ or better by A.M. Best Provider.
11.6 DEDUCTIBLES: All insurance policies may be written with retainages and deductibles,
not to exceed $50,000, unless approved in advance by the Town in writing. The Provider
agrees to indemnify and save harmless the Indemnitees and Additional Insureds from and
against the payment of any retainage or deductible and from the payment of any premium
on any insurance policy required to be furnished by this Ordinance.
The Provider shall furnish the Town with proof of insurance at the time of application for
Construction Permits. In lieu of providing proof of insurance with each Permit
application, the Provider may annually file with the Town current proof of insurance that
extends to all projects within the Town, including the project for which the Permit is
requested. The Town reserves the right to review the insurance requirements and to
reasonably adjust insurance coverage and limits when the Director determines that
changes in statutory law, court decisions, or the claims history of the industry, the
Provider require adjustment of the coverage. For purposes of this Section, the Town will
accept certificates of self-insurance issued by the State of Texas or letters written by the
agency in those instances where the state does not issue such letters, which provide the
same coverage as required herein. Upon the request of Town, Provider shall submit
QATOWNSECTending Ordinances\Right of Way 060401 ORD 2001-13.doc -20-
documentation from a qualified person stating that the self-insurance submitted provides
the same coverage as required herein for insurance policies or that the insurance coverage
provided by the Provider complies with all requirements of this Ordinance.
SECTION 12.
PENALTY
12.1 PENALTY: Any Provider violating or failing to comply with any provision of this
ordinance, shall be fined, upon conviction, in an amount not more than Two Thousand
Dollars ($2,000.00), and separate offenses shall be deemed committed each day during or
on which a violation occurs or continues.
12.2 REMEDIES NOT EXCLUSIVE: The penalty provisions set forth in this section shall
be in addition to, and not in limitation of, any other rights and remedies provided by law
or in equity.
SECTION 13.
GOVERNING LAW
This Ordinance shall be construed in accordance with Town ordinances in effect on the date of
passage of this Ordinance to the extent that said ordinances are not in conflict with or in violation
of the Constitution and laws of the United States or the State of Texas.
SECTION 14.
INDEMNITY
Except as to certificated telecommunications providers, as defined by Section 283.002(2) of the
Texas Local Government Code, each Provider placing Facilities in the Right(s)-of-Way shall
agree to promptly defend, indemnify and hold the Town harmless from and against all damages,
costs, losses or expense (i) for the repair, replacement, or restoration of Town's property,
equipment, materials, structures and Facilities which are damaged, destroyed or found to be
defective as a result of the Provider's acts or omissions, (ii) from and against any and all claims,
demands, suits, causes of action, and judgments for (a) damages to or loss of the property of any
Person (including, but not limited to the Provider, its agents, officers, employees and
subcontractors, Town's agents, officers and employees and third parties); and/or (b) death,
bodily injury, illness, disease, loss of services, or loss of income or wages to any Person,
(including, but not limited to the agents, officers and employees of the Provider, Provider's
subcontractors and Town and third parties) arising out of, incident to, concerning or resulting
from the negligence or willful act or omissions of the Provider, its agents, employees, and/or
subcontractors, in the performance of activities pursuant to this Ordinance, This indemnity
provision shall not apply to any liability resulting from the intentional conduct or negligence of
the Town, its officers, employees, agents, contractors, or subcontractors. The indemnity
provision in Section 283.057 of the Texas Local Government Code and amendments thereto
shall apply to all certificated telecommunications providers.
QATOWNSECTending OrdinancesMght of Way 060401 ORD 2001-13.doc -21-
SECTION 15.
SURETY
15.1 SURETY BOND: Before a Permit as provided in this Ordinance is issued, and unless
waived by the Town Council, or unless exempt from these requirements by law, the
applicant shall deposit with the Director a surety bond in the amount of $25,000.00
payable to the Town. The Director shall have the right to reduce the amount of the bond,
if he/she determines in his/her sole discretion that the prescribed amount would be
unreasonable in the light of the scope and costs of the work. The required surety bond
must be:
A. With good and sufficient surety.
B. By a surety company authorized to transact business in the state.
C. Satisfactory to the Town attorney in form and substance.
D. Conditioned upon the Provider's compliance with this Ordinance and to
secure and hold the Town and its officers harmless against any and all claims,
judgments, or other costs arising from the excavation and other Construction work
covered by the excavation Permit or for which the Town, the Town Council, or
any Town OfFicer may be made liable by reason of any accident or injury to
persons or property through the fault of the Provider either in not properly
guarding the excavation or for any other injury resulting from the negligence of
the Provider, and further conditioned to fill up, restore and place in good and safe
condition as near as may be to its original condition, and to the satisfaction of the
Director, all openings and excavations made in streets or Right(s)-of-Way, and to
maintain any street or Right(s)-of-Way where excavation is made in as good
condition for the period of two (2) years after such work shall have been done and
accepted by Town, usual wear and tear excepted, as it was in before such work
shall have been done.
Any settlement of or upheaval of the surface within such two (2) year period shall
be deemed conclusive evidence of defective backfilling by the Provider. Nothing
contained in this subsection shall be construed to require the Provider to maintain
any repairs to pavement made by the Town if such repairs should prove defective.
Any owner of real estate repairing or engaging another to repair his own sidewalk
shall not be required to give such bond. In the event of any suit or claim against
the Town by reason of the negligence or default of the Provider, upon the Town's
giving written notice to the Provider of such suit or claim, any final judgment
against the Town requiring it to pay for such damage shall be conclusive upon the
Provider and his surety.
15.2 In lieu of providing a surety bond with each permit application, an applicant may elect to
provide a two (2) year surety bond meeting all of the requirements of this section which
is applicable to all excavation work in Right(s)-of-Way performed by or on behalf of the
principal.
QATOWNSECTending OrdinanceARight of Way 060401 ORD 2001-13.doc -22-
SECTION 16.
DIRECTOR'S AUTHORITY/ENFORCEMENT/OFFENSES
16.1 DIRECTOR'S AUTHORITY: The Director is authorized to administer and enforce the
provisions of this Ordinance, and to promulgate regulations, including but not limited to
engineering, technical, and other special criteria and standards, to aid in the
administration and enforcement of this and any other applicable Town Ordinance, or state
or federal law, rule, or regulation.
16.2 INSPECTION: The Director is authorized to enter upon a Construction site within the
Right(s)-of-Way, upon public property, or where necessary, upon private property
adjacent to a Construction site within the Public Right(s)-of-Way, for purposes of
inspection to determine compliance with this Ordinance or a Permit issued hereunder.
16.3 OFFENSE: A Person commits an offense if he:
A. Performs, authorizes, directs, or supervises Construction without a valid
Permit as required by this Ordinance;
B. Violates any provision of this Ordinance;
C. Fails to comply with restrictions or requirements of a Permit issued under
this Ordinance or
D. Fails to comply with an order or regulation of the Director issued pursuant
to this Ordinance.
16.4 OFFENSE — CONSTRUCTION IN PUBLIC RIGHTS) -OF -WAY: A Person
commits an offense if, in connection with the performance of construction in the public
Right(s)-of-Way he:
A. damages the public Right(s)-of-Way beyond what is incidental or
necessary to the performance of the Construction;
B. damages public or private Facilities within the public Right(s) of Way; or
C. fails to clear debris associated with the construction from a public
Right(s)-of-Way after construction is completed.
16.5 DEFENSE: It is a defense to prosecution under Subsection 16.4 (B) if the Person
complied with all of the requirements of this Ordinance and state law and the damage
was caused because the Facilities in question:
A. were not shown or indicated in a plan document, plan of record, record
construction drawing, or field survey, staking or marking; and
B. could not otherwise be discovered in the public Right(s)-of-Way through
the use of due diligence.
16.6 CULPABILITY: A culpable mental state is not required to prove an offense under this
Ordinance. A Person who violates a provision of this Ordinance is guilty of a separate
offense for each day or portion of a day during which the violation is committed,
continued, authorized, directed, or Permitted. An offense is punishable by a fine of not
more than $500.
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SECTION 17.
VENUE
Venue for any proceeding under this Ordinance shall be in Denton County, Texas.
SECTION 18.
NOTICE
For any purpose related to this Ordinance, notice to the Town shall be to the:
Town Manager and Mayor
Town of Trophy CIub, Texas
100 Municipal Drive
Trophy Club, Texas 76262
SECTION 19.
CUMTILATIVE
This Ordinance shall be cumulative of all provisions of ordinances of the Town of Trophy Club,
Texas, except where the provisions of this Ordinance are in direct conflict with the provisions of
such ordinances, in which event the conflicting provisions of such ordinances are hereby
repealed.
SECTION 20.
SEVERABILITY
If any provision, section, subsection, sentence, clause, or phrase of this Ordinance is for any
reason held to be unconstitutional, void, or invalid (or for any reason unenforceable), to the
extent practicable, the validity of the remaining portions of this Ordinance shall not be affected
thereby, it being the intent of the Town in adopting this Ordinance that so long as practicable no
portion hereof or provision hereof shall become inoperative or fail by reason of any
unconstitutionality or invalidity of any other portion, provision, or regulation, and to this end, all
provisions of this Ordinance are declared to be severable.
SECTION 21.
SAVINGS CLAUSE
All rights and remedies of the Town of Trophy Club, Texas are expressly saved as to any and all
violations of the provisions of any other ordinance affecting providers or Right(s)-of-Way use
which have secured at the time of the effective date of this Ordinance; and, as to such accrued
violations and all pending litigation, both civil and criminal, whether pending in court or not,
under such ordinances same shall not be affected by this Ordinance but may be prosecuted until
final disposition by the courts.
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SECTION 22.
ENGROSSMENT AND ENROLLMENT
The Town Secretary is hereby directed to engross and enroll this Ordinance by copying the exact
Caption, Publication Clause, and Effective Date Clause in the minutes of the Town Council and
by filing this Ordinance in the ordinance records of the Town.
-SECTION 23.
PUBLICATION CLAUSE
The Town Secretary of the Town of Trophy Club is hereby directed to publish in one issue of the
Official newspaper of the Town of Trophy Club, the Caption, Penalty Clause, and Effective Date
Clause of this Ordinance as required by Section 52.011 of the Texas Local Government Code.
SECTION 24.
EFFECTIVE DATE
This Ordinance shall be in full force and effect from and after its date of passage and publication
in accordance with law.
AND IT IS SO ORDAINED
PASSED AND APPROVED by the Town Council of
this W" day of June 2001. fj
Mayor
ri Town of T
ATTEST:
Towfi Secretary
Town of Trophy Clu ,. Texas
[SEAL]
APPROVER AS TO FORM
'auu' (g'&00=1'0 )
Town Attorney
Town of Trophy Club, Texas
Town of Trophy Club, Texas
Club, Texas
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