Ord. 0669-2 07-24-00ORDINANCE NO. 669-2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AMENDING ARTICLE II, RIGHT-OF-WAY MANAGEMENT, OF
CHAPTER 26, RIGHTS -OF -WAY, OF THE CITY OF PEARLAND CODE OF
ORDINANCES, AS IT MAY HAVE BEEN, FROM TIME TO TIME,
AMENDED; 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 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 Article II, Right -of -Way Management, of Chapter 26,
Rights -of -Way, of the City of Pearland Code of Ordinances, is hereby amended to read as
follows:
"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.
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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 area on, below, or above a public roadway, highway, street,
public sidewalk, alley, waterway, or utility easement in which the municipality has an
interest. The term does not include the airwaves above a right-of-way with regard to
wireless telecommunications.
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.
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.
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(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.
Section 7. Right-of-way Construction.
No person shall commence or continue with the construction or installation of
facilities within the right-of-way of 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 must 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(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.
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(i)
Emergency responses related to existing facilities may be
undertaken without first obtaining a permit; however, the public works
department must be notified in writing within two (2) business days
of any construction related to an emergency response. A reasonably
detailed description of the work performed in the right-of-way and an
updated map of any facilities moved shall be provided as soon as
practicable.
(ii) The phrase "construction or installation of facilities" does not include
the installation of facilities necessary to initiate service to a
customer's property or the repair or maintenance of existing facilities
unless such repair or maintenance requires the breaking of
pavement, excavation in the right-of-way, or the closure of a public
traffic lane for greater than two (2) hours.
(2) The permit shall state to whom it is issued, location of work, location of
facilities, estimated 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 provided on a drawing scale not smaller than one
inch (1") equals one hundred feet (100') unless otherwise approved
by public works department.
(iii) Description of all existing public and private utilities in close proximity
to applicant's proposed route.
(iv) Description of the applicant's proposed installation, such as pipe size,
number of interducts, valves, etc.
(v) Description of plans to remove and replace pavement or drainage
works in streets. Plans submitted must conform to City of Pearland
standard construction requirements.
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(vi) Drawings of any bores, trenches, handholes, manholes, switch gear,
transformers, pedestals, etc. including depth.
(vii) Manholes of the type applicant plans to use or access.
(viii) Complete legend of drawings submitted by applicant, which may be
provided by reference to previously submitted documents.
(ix) Three sets of engineering plans must be submitted with permit
application.
(x) 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 estimated 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
(xi) Proof of insurance or net worth as required.
(4) 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.
(5)
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.
(6) 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
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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.
(b) 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.
(c) 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.
(d) 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. Such requirement for a surety bond may be waived by the
director of public works or his/her designee upon a showing of
financial responsibility by the applicant.
A request for a permit must be submitted at least five (5) 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.
(10) The public works department may request a pre -construction meeting
with the permittee and their construction contractor.
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Section 9. Construction standards.
(a) 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, including the name, address, and phone numbers
of the contractor performing the actual construction, and the name and
telephone number of the individual who will be available at all times during
construction. Failure to provide the above information will result in the
suspension of the permit until the required information is received.
(b) All construction shall be in conformance with all city codes and applicable local,
state, and federal laws.
(c) Erosion control measures (i.e., silt fence) and advance warning signs, markers,
cones, and barricades must be in place before work begins.
(d) Permittee may be required to show proof of EPA approved plans relating to
storm water and erosion when applicable or a letter stating such plans are not
required.
(e) Lane closures on collectors and thoroughfares, as identified by the City's
thoroughfare plan, 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.
(f)
(g)
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 comply with city, state, and federal guidelines regulating storm
water management erosion control. Requirements shall include, but not be
limited to, silt fencing around any excavation that will be left overnight, silt
fencing in erosion areas until reasonable vegetation is established, barricade
fencing around open holes, and high erosion areas will require wire backed
silt fencing, or straw bales, as appropriate.
(h) Permittee or contractor or subcontractor shall notify the public works
department immediately of any damage to other utilities, either city or privately
owned.
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(i)
G)
Except in the event of an emergency, prior approval must be obtained from the
public works department when a street or sidewalk cut is required 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.
Newly installed facilities shall not interfere with facilities of other users, in
particular gravity dependent facilities.
(k) Facilities shall be installed at a minimum of two (2) feet depth, unless approved
by the public works department.
(I)
All directional boring shall have locators place bore marks and depths while the
bore is in progress. Locators shall place a mark on every other stem with paint
dots.
(m) Except in the event of an emergency, working hours in the rights -of -way are
7:00 a.m. to 7:00 p.m., Monday through Saturday. Work that needs to be
performed after 7:00 p.m. Monday through Saturday must be approved in
advance. Except in the event of an emergency, any work performed on Sunday
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.
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. 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. The requirement to provide "plans of record" may be waived by the director
of public works upon a showing of good cause.
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 (i.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
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user, such alterations shall be made by the owner of the facilities at their expense within
ninety (90) 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;
or
(4) the facilities are not located in the proper place in accordance with the
plans approved by the public works department.
(c) This section shall not apply to facilities installed prior to the effective date of this
ordinance unless such facilities are repaired or upgraded.
(d) When poles are used, the type of poles, location, depth, upgrades, etc. shall be
subject to review of the public works department.
Section 13. 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 natural 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. The restoration shall include, but not be limited to:
(1) Installation of all manholes and handholes, as required;
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(2) All bore pits, potholes, trenches, or any other holes shall be covered or
barricaded daily;
(3) Leveling of all trenches and backhoe lines;
(4) Restoration of excavation site to city specifications.
(d) All locator flags shall be removed during the cleanup process by the permittee
or his/her contractor at the completion of the work.
Section 14. 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 15. 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 2. 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 3. Repealer. All ordinances and parts of ordinances in conflict herewith
are hereby repealed but only to the extent of such conflict.
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Section 4. 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 Five Hundred
Dollars ($500.00).
Section 5. 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
benefit of the City.
Section 6. 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 7. 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 hereinabove.
Section 8. 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 (10) 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. 669-2
PASSED and APPROVED on First and Only Reading this the 24' day of July,
A.D., 2000.
ATTEST:
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
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TOM REID
MAYOR
VOTING RECORD (FIRST AND ONLY READING
JULY 24, 20001
Voting "Aye" -
Councilmembers Beckman, Owens,
Seeger, and Marcott.
Voting "No" - None.
Motion passes 4 to 0, with Councilmember Wilkins absent.
PUBLICATION DATE: AUGUST 9, 2000
EFFECTIVE DATE: AUGUST 19, 2000
PUBLISHED AS REQUIRED BY SECTION 3.10 OF
THE CHARTER OF THE CITY OF PEARLAND, TEXAS