Ord. 0669-1 12-13-99ORDINANCE NO. 669-t
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AMEN DING CHAPTER 26, STREETS AND SIDEWALKS, OF THE
CITY OF PEARLAND CODE OF ORDINANCES, AS IT MAY HAVE BEEN,
FROM TIME TO TIME, AMENDED, BY RENAMING CHAPTER 26,
STREETS AND SIDEWALKS, TO RIGHTS-OF-WAY, REDESIGNATING
OLD ARTICLES I THROUGH IV TO DIVISIONS 1 THROUGH 4, ADDING
A NEW ARTICLE I, STREETS & SIDEWALKS, AND CREATING A NEW
ARTICLE II, RIGHT-OF-WAY MANAGEMENT; PROVIDING A PENALTY
FOR VIOLATION; HAVING A SAVINGS CLAUSE, A SEVERABILITY
CLAUSE, AND A REPEALER CLAUSE; PROVIDING FOR CODIFICATION,
PUBLICATION AND AN EFFECTIVE DATE; AND DECLARING AN
EMERGENCY BECAUSE THE NEED TO AS THE NEED TO REGULATE
THE CITY'S RIGHTS-OF-WAY INURES TO THE BENEFIT OF THE PUBLIC
AND, THEREFORE, BEARS DIRECTLY UPON THE HEALTH, SAFETY AND
WELFARE OF THE CITIZENRY.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That Chapter 26, Streets and Sidewalks, of the City of Pearland
Code of Ordinances, is hereby amended to RENAME Chapter 26 to Rights-of-Way.
Section 2. That Chapter 26 of the City of Pearland Code of Ordinances is further
amended as follows:
to REDESIGNATE Article I, In General, as Division 1, In General
to REDESIGNATE Article II, Excavations, as Division 2, Excavations;
to REDESIGNATE Article Ill, Sight Obstructions at lntersections, as Division 3,
Sight Obstructions at Intersections.
to REDESIGNATE Article IV, Cleaning, as Division 4, Cleaning.
Section 3. That Chapter 26 of the City of Pearland Code of Ordinances is further
amended to CREATE a new Article II, Right-of-Way Management, to read as follows:
ORDINANCE NO. 669-t
"ARTICLE II. RIGHT-OF-WAY MANAGEMENT
DIVISION I. GENERAL PROVISIONS
Section 1. Title.
This article may be known and cited as the Right-of-Way Management Ordinance
for the City of Pearland, Texas.
Section 2. Construction; governing law; venue.
This article shall be construed under and in accordance with the laws of the State
of Texas and the City Charter and City Code to the extent that such Charter and City Code
are not in conflict with or in violation of the Constitution and laws of the United States or
the State of Texas. All obligations of the parties hereunder are performable in Brazoria,
Harris, and Fort Bend Counties, Texas.
Section 3. Scope.
This article shall be effective within the geographical limits of the city, including any
areas subsequently annexed by the city.
Section 4. Definitions.
Street or public way or public right-of-way or public rights-of-way or rights-of-way or
right-of-way means the surface of, and the space above and below a public street, road,
highway, freeway, land, path, public way or place, alley, court, boulevard, parkway, drive,
or other easement now or hereafter held by or under the control of the city, to which the
city holds the property rights in regard to the use for utilities.
U.S.C. means United States Code.
Section 5. Criminal penalties.
Any violation or failure to abide by, and comply with, any provision or requirement
of this Ordinance shall be a violation of city ordinance, and shall be punished as a Class C
misdemeanor, subject to a fine up to five hundred dollars ($500.00) per occurrence, unless
otherwise provided by state law.
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ORDINANCE NO. 669-1
Each day upon which there exists a violation of this article, or a failure to abide by,
or comply with, any provision or requirement of this article, shall constitute a separate
occurrence, and may subject the offender to separate criminal penalties.
Prosecution pursuant to this section is in addition to and does not supplant other
remedies.
With the exception of any actions requiring authorization, franchises, licenses or
permits (including permits issued before actual use of the right-of-way), it shall be an
affirmative defense that notice of the violation of this article and forty-five (45) days to
correct the violation was not given to the offender.
Section 6. Civil penalties.
(a) Civil penalties may be imposed for the violation of any provision of this article,
as follows:
(1)
Up to one thousand dollars ($1,000.00) for each violation, and each
day of a continuing violation may be considered a new violation;
and/or
(2)
If applicable, default and revocation of any or all permits granted to
allow work in the rights-of-way, subject to the procedural guidelines
noted in this article and any agreement which applies to the right-of-
way user, and further subject to any limitations imposed by federal or
state law.
(b)
In imposing the penalties and the amount, the city may weigh all applicable
factors, such as damages caused by the violation, reasons for the violation, the
seriousness of the violation, and all other factors.
(c) Monetary civil penalties may be imposed in the manner prescribed by either
local or state law.
(d)
In addition, the city council may order specific performance of any actions
required by this article or required by a franchise, license or permit, including
the permit authorizing work to be performed in the right-of-way, or any other
agreement or authorization.
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ORDINANCE NO. 669-1
Section 7. Right-of-way Construction.
No person shall commence or continue with the construction, installation, or
operation of facilities within the right-of-way in the city except as provided by the
ordinances of the city and the directives of the Public Works Department.
Section 8. Registration and Construction Permits.
(a) Registration
In order to protect the public health, safety, and welfare, all users of the right-of-
way will register with the City of Pearland. Registration and permits will be
issued in the name of the person who will own the facilities.
Registration shall include:
(1) the name of the user of the right-of-way;
(2) the name, address, and telephone number of people who will be contact
person(s) for the user;
(3) the name, address, and telephone number of any contractor or
subcontractor who will be working in the right-of-way on behalf of the user;
(4) the name(s) and telephone number of an emergency contact who shall be
available 24 hours a day.
(b) Construction Permits.
(1) No person shall perform any construction or installation of facilities in the
right-of-way without first obtaining a construction permit, except as provided
herein. The permit will be in the name of the person who will own the
facilities to be constructed. The permit must be completed and signed by
a representative of the owner of the facilities to be constructed.
Emergency responses related to existing facilities may be undertaken
without first obtaining a permit; however, the public works department
must be notified in writing by the next business day of any
construction related to any emergency response; including a
reasonably detailed description of the work performed in the
right-of-way and an updated map of any facilities that were moved.
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ORDINANCE NO. 669-1
(ii)
The phrase "construction or installation of facilities" does not include
repair or maintenance of existing facilities unless such repair or
maintenance requires the breaking of pavement or the closure of a
public traffic lane; or the installation of facilities necessary to initiate
service to a customer's property.
(2) The permit shall state to whom it is issued, location of work, location of
facilities, dates and times the work is to take place and any other conditions
set out by the director of public works or his/her designee.
(3) The person requesting a permit will provide the director of public works or
his/her designee with documentation describing:
(i)
The proposed, approximate location and route of all facilities to be
constructed or installed and the applicant's plan for right-of-way
construction,
(ii)Engineering plans which will be on a scale of one inch (1") equals fifty
feet (50') unless otherwise approved by public works department.
(iii) Detail of the location of all right-of-way and utility easements which
applicant plans to use.
(iv) Detail of all existing public and private utilities in relationship to
applicant's proposed route.
(v) Detail of what applicant proposes to install, such as pipe size, number
of interducts, valves, etc.
(vi)
Detail of plans to remove and replace asphalt, concrete in street.
Plans submitted must conform to City of Pearland standard
construction requirements.
(vii) Drawings of any bores, trenches, handholes, manholes, switch gear,
transformers, pedestals, etc. including depth.
(viii) Manholes typically of the type applicant plans to use or access.
(ix) Complete legend of drawings submitted by applicant.
(x) Four sets of engineering plans must be submitted with permit
application.
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ORDINANCE NO. 669-1
(4)
(5)
(6)
(xi)
The name, address, and phone numbers of the contractor who will
perform the actual construction, including the name and telephone
number of an individual with the contractor who will be available at all
times during construction.
(xii)
The construction and installation methods to be employed for the
protection of existing structures, fixtures, and facilities within or
adjacent to the right-of-way, and the dates and times work will occur,
all of which (methods, dates, times, etc.) are subject to approval of the
director of public works or his/her designee; and
(xiii) Proof of insurance or net worth as required.
All construction and installation in the right-of-way shall be in accordance
with the permit for the facilities. The director of public works or his/her
designee shall be provided access to the work and to such further
information as may reasonably be required to ensure compliance with the
permit.
A copy of the construction permit and approved engineering plans shall be
maintained at the construction site and made available for inspection by
the director of public works or his/her designee at all times when
construction or installation work is occurring.
All construction or installation work authorized by permit must be
completed in the time specified in the construction permit. If the work
cannot be completed in the specified time periods, the permittee may
request an extension from the director of public works or his/her designee.
(7) Insurance and Bonds
(a)
An applicant must provide proof of liability insurance in the amount of
one million dollars ($1,000,000.00), as approved by the director of
public works or his/her designee. Such requirements may be waived
by the director of public works or his/her designee, if the applicant
provides acceptable evidence of self-insurance backed by assets
equal to but not less than a net worth in the amount of at least five
million dollars ($5,000,000.00) as approved by the director of public
works or his/her designee and the director of financial services or
his/her designee.
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ORDINANCE NO. 669-1
(b)
(c)
(d)
(8)
(9)
(10)
(11)
The coverage provided shall be on an "occurrence" basis and shall
include coverage for personal injury, contractual liability, premises
liability, medical damages, underground, explosion, and collapse
hazards.
Each policy must include a cancellation provision in which the
insurance company is required to notify the city in writing not fewer
than thirty days before canceling, failing to renew, or reducing policy
limits.
The applicant shall file the required original certificate of insurance
prior to any commencement of work. The certificate shall state the
policy number; name of the insurance company; name and address
of the agent or authorized representative of the insurance company;
name, address and telephone number of insured; policy expiration
date; and specific coverage amounts.
(e)
Applicant shall file a surety bond from a surety company authorized
to do business in the State of Texas in the amount of $15,000.00 to
guarantee the restoration of the right-of-way in the event the
applicant leaves a job site in the right-of-way unfinished, incomplete,
or unsafe.
A request for a permit must be submitted at least ten (10) working days
before the commencement of work proposed in the request, unless
waived by the director of public works or his/her designee.
Requests for permits shall be approved or disapproved by the director of
public works or his/her designee within a reasonable time of receiving all
the necessary information. The director of public works or his/her
designee shall use his/her best efforts to approve or disapprove a request
for permit as soon as possible.
The public works department may request a pre-construction meeting
with the permittee and their construction contractor.
Permit applications are required for construction on new, replacement, or
upgrading of the company's network in the right-of-way either serial or
underground.
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ORDINANCE NO. 669-1
Section 9.
(a)
(b)
(c)
(d)
(e)
(g)
(h)
Construction standards.
Department of public works shall be notified twenty-four (24) hours in advance
that construction is ready to proceed by either the right-of-way user, their
contractor or representative.
All construction shall be in conformance with all city codes and applicable
local, state, and federal laws.
Three foot by three foot information signs stating the identity of the person or
persons doing the work, telephone number and permittee's identity and
telephone number shall be placed at the location where construction is to
occur 48 hours prior to the beginning of work in the right-of-way and shall
continue to be posted at the location during the entire time the work is
occurring.
Erosion control measures (i.e., silt fence) and advance warning signs, markers,
cones, and barricades must be in place before work begins.
Permittee may be required to show proof of EPA approved plans relating to
storm water and erosion when applicable or a letter stating they are not
required to obtain such plans.
Lane closures on major thoroughfares is limited to after 8:30 a.m. and before
4:00 p.m. unless the public works department grants prior approval. Arrow
boards will be required on lane closures, with all barricades, advanced warning
signs and 36 inch reflector cones placed according to the specifications of the
public works department.
Permittees are responsible for the workmanship and any damages caused by
a contractor or 'subcontractor. A responsible representative of the permittee
will be available to public works at all times during construction.
Permittee shall be responsible for storm water management erosion control
that complies with city, state, and federal guidelines. Requirements shall
include, but not be limited to, silt fending around any excavation that will be left
overnight, silt fencing in erosion areas until reasonable vegetation is
established, barricade fencing around open holes, and high erosion areas will
require wire backed silt fencing.
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ORDINANCE NO. 669-1
(i)
Permittee or contractor or subcontractor shall notify the public works
department immediately of any damage to other utilities, either city or privately
owned.
When a street or sidewalk cut is required, prior approval must be obtained by
the public works department and all requirements of the public works
department shall be followed. Repair of all street and sidewalk removals shall
be made promptly to avoid safety hazards to vehicle and pedestrian traffic.
(k) Installed facilities shall not interfere with any utilities, in particular gravity
dependent facilities.
(I) Utilities shall be installed at a minimum of six (6) feet depth, unless approved
by the Public Works Department.
(m)
All directional boring shall have Iocators place bore marks and depths while
the bore is in progress. Locators shall place a mark on every other stem with
paint dots.
(n)
The working hours in the rights-of-way are 7:00 a.m. to 6:00 p.m., Monday
through Friday. Work that needs to be performed after 6:00 p.m. Monday
through Friday must be approved in advance. Any work performed on
Saturday must be approved twenty-four (24) hours in advance by the public
works department. Directional boring is permitted only Monday through Friday,
unless approved in advance.
(P)
Contractor is responsible for verifying the location both horizontal and vertical
of all affected facilities whether by pot holing or hand digging prior to any
excavation or boring.
(q) Placement of all manholes must be approved in advance by public works
department.
Section 10. "Plans of Record" Plans.
Right-of-way users shall provide the public works director or his/her designee with
"plans of record" within ten days of completion of facilities in the right-of-way and annually
thereafter. Users, which have facilities in the right-of-way existing as of the date of this
ordinance who have not provided "plans of record" plans shall do so not later than thirty
(30) days after the passage of this ordinance. The plans shall be provided to the city in the
format specified by the public works director or his/her designee. Submittal of "plans of
record" should be in digital formatting as well as written or in any other format requested
by the public works department.
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ORDINANCE NO. 669-1
Section 11. Conformance with Public Improvements.
Whenever by reasons of widening or straightening of streets, water or sewer line
projects, or any other public works projects (£e., install or improve storm drains, water lines,
sewer lines) it shall be deemed necessary by the governing body of the city to remove,
alter, change, adapt, or conform the underground or overhead facilities of a right-of-way
user, such alterations shall be made by the owner of the facilities at their expense within
thirty (30) days from receipt of notice to make the alterations, unless a different schedule
has been approved by the public works director or his/her designee.
Section 12. Improperly Installed Facilities.
(a) Any person doing work in the city right-of-way shall properly install, repair,
upgrade, and maintain facilities.
(b) Facilities shall be considered to be improperly installed, repaired, upgraded,
or maintained if:
(1) the installation, repairs, upgrade, or maintenance endangers people;
(2) the facilities do not meet the applicable city codes;
(3) the facilities are not capable of being located using standard practices;
(4) the facilities are not located in the proper place in accordance with the
directions provided by the public works department; or
(5)
the facilities are placed in an area that interferes with any facilities located
in the city's right-of-way, such as water or sewer lines or streets.
Privately owned facilities shall be considered to interfere with city owned
facilities if the privately owned facility is within three (3) feet horizontally
or one (1) foot vertically of city owned facilities.
Section 13. Type of Facilities.
(a) The public works director may require or approve the location of facilities
underground.
(b) When poles are used, the type of poles, location, depth, upgrades, etc. shall
be subject to the review and approval of the public works department.
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ORDINANCE NO. 669-1
(c)
Public works director or his/her designee may approve size of facilities to be
installed or require proof of need to install size of system requesting to be
permitted.
Section 14. Restoration of Property.
(a)
Users of the right-of-way shall restore property affected by construction of
facilities to a condition that is equal to or better than the condition of the
property prior to the performance of the work.
(b)
This includes, but is not limited to, replacing all ground cover with an equal or
better type of ground cover damaged during work, either by sodding or
seeding, as directed by public works.
(c)
Restoration shall be to the reasonable satisfaction of the public works
department and the property owner. The restoration shall include, but not be
limited to:
(1) Installation of all manholes and handholes, as required;
(2)
Backfilling all bore pits, potholes, trenches, or any other holes shall be
filled in daily, unless other safety requirements are approved by public
works;
(3) Leveling of all trenches and backhoe lines;
(4) Restoration of excavation site to city specifications;
(5) Restoration of all landscaping.
(d) All Iocator flags shall be removed during the cleanup process bythe permittee
or his/her contractor at the completion of the work.
(e)
Restoration shall be made in a timely manner as specified by approved public
works schedules and to the satisfaction of public works director or his/her
designee. If restoration is not satisfactory or performed in a timely manner all
work in progress, except that related to the problem, including all work
previously permitted but not complete will be halted and no additional permits
will be approved until all restoration is complete.
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ORDINANCE NO. 669-1
Section 15. Revocation or Denial of Permit.
If any provisions of this ordinance are not followed, a permit may be revoked by the
public works director or designee. If a person or persons fails to follow the terms and
conditions of this ordinance in work done pursuant to a prior permit, new permits may be
denied or additional terms required.
Section 16. Conflicts with Existing Franchises.
If a provision of this article directly conflicts with a provision of a franchise or written
authorization from the city in effect on the effective date of this ordinance, the franchise
provision will be followed until such time that the franchise or written authorization expires
or is terminated."
Section 4. Declaration of Emergency. The City Council hereby declares that a
public emergency exists, as the need to regulate the City's rights-of-way bears directly
upon the health, safety and welfare of the citizenry; and that this Ordinance shall be
adopted as an emergency measure, and that the rule requiring this Ordinance to be read
on two (2) separate occasions be, and the same is hereby waived.
Section 5. Repealer. All ordinances and parts of ordinances in conflict
herewith are hereby repealed but only to the extent of such conflict.
Section 6. Penalty. Any person who shall violate the provisions of this
section shall be deemed guilty of a misdemeanor and shall, upon conviction by a court
of competent jurisdiction, be punished by a fine in any sum not exceeding Two
Hundred Dollars ($200.00).
Section 7. Savings. All rights and remedies which have accrued in favor of
the City under this Chapter and amendments thereto shall be and are preserved for the
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ORDINANCE NO. 669-t
benefit of the City.
Section 8. Severability. If any section, subsection, sentence, clause, phrase
or portion of this Ordinance is for any reason held invalid, unconstitutional or otherwise
unenforceable by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct, and independent provision and such holding shall not affect the
validity of the remaining portions thereof.
Section 9. Codification. It is the intent of the City Council of the City of
Pearland, Texas, that the provisions of this Ordinance shall be codified in the City's
official Code of Ordinances as provided herein-above.
Section 10. Publication and Effective Date. The City Secretary shall cause
this Ordinance, or its caption and penalty, to be published in the official newspaper of
the City of Pearland, upon passage of such Ordinance. The Ordinance shall then
become effective ten (1 O) days from and after its publication, or the publication of its
caption and penalty, in the official City newspaper.
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ORDINANCE NO. 669-1
PASSED and APPROVED on First and Only Reading this the 13TM
.December, A.D., 1999. ~
TOM REID
MAYOR
day of
ATTEST
uNG' '
VOTING RECORD (FIRST AND ONLY READING
DECEMBER 13, 1999)
Voting "Aye"- Councilmernbers Beckman, Tetens,
Wilkins, and Seeger.
Voting "No" - None.
Motion passes 4 to O, with Councilrnember Berger absent.
PUBLICATION DATE: DECEMBER 15, 1999
EFFECTIVE DATE: DECEMBER 25, 1999
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
PUBLISHED AS REQUIRED BY SECTION 3.10 OF
THE CHARTER OF THE CITY OF PEARLAND, TEXAS
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