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G-07-08-09-7A1 - 8/9/2007 ORDINANCE NO. a -O (- 09-0q-7P I AN ORDINANCE AMENDING CHAPTER 10, SECTION 10.900, CODE OF ORDINANCES (1995 EDITION), CITY OF ROUND ROCK, TEXAS, TO AMEND AND ESTABLISH UNIFORM RULES AND REGULATIONS GOVERNING THE CONSTRUCTION AND USE OF CITY PUBLIC RIGHTS-OF-WAY; AND PROVIDING FOR A SAVINGS CLAUSE AND REPEALING CONFLICTING ORDINANCES AND RESOLUTIONS. WHEREAS, the Rights-of-Way are a valuable public resource that have required and will continue to require substantial investment by the City of Round Rock ("City") ; and WHEREAS, the City desires to structure and implement a fair and orderly process for the authorizations to occupy and use the Rights-of-Way in the City to protect the public interest consistent with applicable law; and WHEREAS, the City desires to minimize inconvenience and disruption to the public, provide for the orderly and efficient use of the Rights-of-Way now and in the future and preserve adequate capacity of existing and future uses of the Rights-of- Way; and WHEREAS, in accordance with applicable federal law, including, but not limited to, 47 U. S.C. § 253 (c) and state law, including, but not limited to, Texas Utility Code Sections 14 . 008 and 54 . 205, and Texas Civil Statute, Article 1175; the City seeks to exercise to the fullest extent permitted, its historical rights to control and manage its Public Rights-of-Way in a competitively neutral and nondiscriminatory basis; and 070809A 1 implement certain police power regulations regarding the use of those Public Rights-of-Way, in accordance with Texas Local Government Code Section 283. 056; Now Therefore, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS THAT: I. Section 10 . 900 of the Code of Ordinances of the City of Round Rock is hereby amended in its entirety. Section 10 . 900 of Chapter 10 of the Code of Ordinances of the City of Round Rock is hereby replaced in its entirety, and shall read as follows: SECTION 10.900 PUBLIC RIGHTS-OF-WAY MANAGEMENT 10.901 PURPOSE (1) The purpose of this Section 10.900, Public Rights-of-Way Management is to: (a) assist in the management of Facilities placed in, on, under or over the Public Rights-of-Way in order to minimize the congestion, inconvenience, deterioration, visual impact and other adverse effects, and the costs to the citizens resulting from the placement of Facilities within the Public Rights-of- Way; (b) govern the use and occupancy of the Public Rights-of-Way; (c) assist the City in its efforts to protect the public health, safety and welfare; (d) conserve the limited physical capacity of the Public Rights-of-Way held in public trust by the City; (e) preserve the physical integrity of the streets and highways; (f) control the orderly flow of vehicles and pedestrians; (g) keep track of the different entities using the Public Rights-of-Way to prevent interference between them; (h) assist in scheduling common trenching and street cuts; and (i) protect the safety, security, appearance, and condition of the Public Rights-of- Way. 10.902 AUTHORITY AND SCOPE This Section 10.900 applies to all Utility Companies that place Facilities in, on, under or over Public Rights-of-Way. Compensation for use of the Public Rights-of-Way shall be paid in accordance with all applicable law, including, but not limited to, cable providers, in accordance with the Federal Cable Act, 47 USC § 5241, et seq. and Chapter 66 of the Texas Utility Code; for certificated telecommunication providers, Chapter 283 of the Texas Local Government Code; for distributors of natural gas and electricity or as otherwise applicable, Texas Tax Code Section 182.025 and Texas Utility Code Section 33.008; and in accordance with Texas Civil Statute, Article 1175(1), all as applicable. 2 10.903 DEFINITIONS For the purposes of this Section 10.900, the following words, terms and phrases, shall have the meaning ascribed to them except where the context clearly indicates a different meaning: (1) Certificated Telecommunications Provider shall mean the same as defined in Texas Local Government Code Section 283.002(2): any entity that has been issued a certificate of convenience and necessity, certificate of operating authority, or service provider certificate of operating authority by the Texas Public Utility Commission to offer local exchange telephone service or a person that provides voice service, as defined in Texas Local Government Code Section 283.002(2). (2) City shall mean The City of Round Rock, Texas. As used throughout, the term City also includes the designated agent of the City. (3) City Property shall mean all buildings, infrastructure, bridges, parks, golf courses, parking lots and other real property owned by the City that is not dedicated for utility or street transportation purposes. (4) Design and Construction Standards (DACS) shall mean the design and construction standards that have been adopted by ordinance by the City Council and as may be amended from time to time. (5) Director shall mean the Chief of Public Works Operations, or the designee of the Chief of Public Works Operations, or the designated Director of the City's department administering this program or such Director's designee. (6) Emergency shall mean a customer service interruption or a condition that threatens imminent harm to property or to health and safety. (7) Facility or Facilities shall mean any and all of the wires, cables, fibers, duct spaces, manholes, poles, conduits, pipes underground and overhead passageways and other equipment, structures, plants and appurtenances and all associated physical equipment placed in, on or under the Public Rights-of-Way. (8) Person shall mean a natural Person (an individual), corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company or association, and other such entity. (9) Public Rights-of-Way shall mean the same as defined in Texas Local Government Code § 283.002(6): the area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the City has an interest. The term does not include the airwaves above a Public Rights-of-Way with regard to wireless telecommunications. The term does not include City Property and rights-of- way owned by the state of Texas or agency thereof. (10) Utility Company or Utility Companies shall mean any Person or entity that owns or operates Facilities. 10.904 MUNICIPAL AUTHORIZATION REQUIRED (1) Construction Permit Required (a) Construction Permit Application Fee Any Utility Company seeking to place, replace, or alter Facilities on, in, under or over the Public Rights-of-Way, shall pay a cost-based construction permit application fee of $400.00,except Certificated Telecommunications Providers and their contractors, per Texas Local Government Code, Chapter 283, and 3 holders of a state-issued certificate of franchising authority to provide cable or video services per Texas Utility Code, Chapter 66, and shall file an application for such construction permit with the Director and shall abide by the terms and provisions of this Section 10.900 pertaining to use of the Public Rights-of-Way. If there are additional direct costs to the City in processing the applications, the City may recover those costs from the Applicant prior to the issuance of the construction permit. A construction permit application fee is not required for City initiated projects that require Utility Companies to place, replace, or alter Facilities on, in, under or over the Public Rights-of-Way. (b) Construction Permit Application With such application, applicants shall submit to the Director written applications identifying the applicant and all affiliates that may have physical control of Facilities within the Public Rights-of-Way, with plans of the proposed work, general description of the services to be provided, a construction schedule, and a general description of the expected impact and effect on Public Rights-of-Way as detailed in Section 10.906(6) below. (2) Municipal Authorization Any Utility Company, except a Certificated Telecommunications Provider under Texas Local Government Code, Chapter 283, and holders of a state-issued certificate of franchising authority to provide cable or video services under Texas Utility Code, Chapter 66, prior to placing, replacing, or altering Facilities in, on or over the Public Rights-of-Way, must obtain separate municipal authorization from the City. For use of the Public Rights-of-Way, all users of the Public Rights-of-Way shall compensate the City on the value of the rights-of-way used, being typically either on a gross receipts basis or on a linear foot basis, to the fullest extent allowed by law. (3) Franchise Agreements Any Utility Company with a current and unexpired consent, franchise, agreement or other authorization from the City ("Grant") to use the Public Rights-of-Way that is in effect at the time this Section 10.900, Public Rights-of-Way Management Ordinance, is finally adopted, shall continue to operate under and comply with that Grant (except to the extent the police power regulations in such Grant are inconsistent with this Section 10.900, in which event, this Section 10.900 will control) until the Grant expires or until it is terminated by mutual agreement of the City and the Utility Company, or is terminated as otherwise provided for in law. (4) Prerequisites to Issuance of Construction Permit - Each Utility Company Must Register With the City In order for the City to know which Utility Companies own Facilities in the Public Rights-of-Way within the City, each Utility Company that owns Facilities shall register with the City and provide the following information: (i) Utility Company's name and (ii) the current name, address, and telephone number(s) of a contact person(s) employed by and with decision-making authority for the Utility Company and who is available twenty-four (24) hours per day. Each Utility Company shall update and keep current its registration with the City at all times and shall inform the City of any changes no more than thirty (30) days after the date the change is made. For an Utility Company with a Grant from the City, the Grant will be evidence of registration. 4 10.905 ADMINISTRATION AND ENFORCEMENT (1) General (a) The Director shall have the primary responsibility to administer and enforce compliance with this Section 10.900 and to bring to the attention of the City Manager, and any other appropriate authority, any violations or lack of compliance with these regulations. Any department, agency, employee or enforcement officer of the City having information regarding an alleged violation of this Section 10.900, shall report that information to the Director. (b) An Utility Company shall report information related to the use of the Public Rights-of-Way that the Director requires in the form and manner reasonably prescribed by the Director as set forth herein. (c) The Director shall report to the City Manager upon the determination that a Person has failed to comply with this Section 10.900. (2) Violations and Penalties It shall be unlawful for any Person to fail to comply with or violate any of the subsections of this Section 10.900. Any Person who fails to comply with or violates any of these regulations shall be deemed guilty of a misdemeanor and punished by a fine not to exceed Two Thousand and No/100 Dollars ($2,000.00) per day and each day shall constitute a separate offense. (3) Civil Enforcement The Director shall report violations to the City Manager to determine what action is deemed proper, and the City Attorney is hereby authorized, without further authorization from City Council, to file suit in district court, in addition to any criminal penalties to enjoin the violation of any provision of this Section 10.900. Appropriate actions and proceedings may be taken by the City in law or in equity to prevent any violation of these regulations, to prevent unlawful construction, to recover damages, and to restrain, correct, or abate a violation. These remedies shall be in addition to the penalties described in this Section 10.905. 10.906 CONSTRUCTION OBLIGATIONS An Utility Company is subject to reasonable police power regulation of the City to manage its Public Rights-of-Way in connection with the excavation, construction, installation, expansion, reconstruction, relocation, alteration, removal, maintenance or repair of Facilities in the Public Rights-of-Way, pursuant to the City's rights as a custodian of public property based upon the City's historic rights under state and federal laws. Such regulations include, but are not limited to, the following: (1) At the City's request, an Utility Company shall furnish the City accurate and complete information relating to the excavation, construction, installation, expansion, reconstruction, relocation, alteration, removal, maintenance or repair of Facilities performed by the Utility Company in the Public Rights-of-Way, as set forth herein and in the DACS. Information provided to the City pursuant to this subsection may be designated by the providing Utility Company as confidential and will be kept confidential by the City to the extent allowed by law. (2) An Utility Company shall perform excavations and other construction in the Public Rights-of-Way in accordance with all applicable City ordinances. All excavations and other construction in the Public Rights-of-Way shall be conducted so as to minimize interference with the use of public and private property. Any Facility placed within the Public Rights-of-Way that is attached in any manner above ground shall either be 5 placed on existing poles or equipment or be attached in accordance with the National Electric Safety Code. An Utility Company shall follow all reasonable construction directions given by the City in order to minimize any such interference. (3) An Utility Company shall be required to utilize trenchless technology wherever the proposed construction crosses any portion of a paved public street, public or private driveways, or the Critical Root Zone of a Protected Tree, as those terms are defined by Section 3.1103 of this Code; provided however that in exceptional cases where particular field conditions prevent the use of trenchless technology, the Director has the discretion to grant a waiver of this requirement. An Utility Company may be required to utilize trenchless technology wherever the proposed construction crosses any portion of a public sidewalk or occurs in an area of the City that is significantly developed. The Director may waive this requirement if he determines based upon information provided by the Utility Company that the use of trenchless technology is not economically acceptable or technically feasible. An Utility Company will not be required to utilize trenchless wherever the proposed construction is in an undeveloped area and does not cross any portion of a paved public street, public or private driveways or the Critical Root Zone of a Protected Tree. (4) An Utility Company shall use its best efforts to coordinate construction and installation of facilities, including co-location of poles for aerial facilities and joint trenching, with any other Utility Companies which may be constructing in and along the same Public Rights-of-Way. The City may mandate such coordination to the fullest extent allowed by law. (5) To the extent known, plans for ongoing repair, maintenance, and improvements that involve cutting into paved City roads or streets shall be submitted to the City on an annual basis, no later than April 1 of each year, and updated based upon any changes. This does not require any proprietary information, such as equipment or customer specific information. Such information may be designated confidential, and to the extent allowed by law, will be kept confidential by the City. Alternatively, an Utility Company may meet with the appropriate representative of the City each calendar quarter to provide such plans to the extent known. (6) Construction Permits (a) Except as provided in subsection (c) and (d) below, all Utility Companies must obtain a construction permit before performing any new construction or replacement, upgrading, excavation, installation, expansion, reconstruction, relocation, alteration, removal, maintenance or repair of Facilities in the Public Rights-of-Way. The permit will be in the name of the Utility Company who will own the Facilities to be constructed. The permit must be completed and signed by a lawful representative of the owner of the Facilities to be constructed. Failure to obtain a required construction permit will subject the Utility Company to a stop- work order from the City and enforcement action pursuant to this code. (b) Except as provided in subsection (c) and (d) below, an Utility Company must submit an application for a construction permit at least seven (7) days prior to the proposed commencement of work in the request and must obtain the construction permit 48 hours prior to any excavation, construction, installation, expansion, reconstruction, relocation, alteration, removal, maintenance or repair of the Utility Company's Facilities. The aforesaid seven (7) day and/or 48 hour requirement may be waived or altered by the City for good cause shown by the applicant. (c) No permit is required when installing facilities necessary to provide primary or regular service to a customer's property or performing routine repair or maintenance of existing facilities unless the Utility Company's activities require the 6 breaking of the asphalt, concrete or similar surface of the Public Rights-of-Way; the closure of a traffic lane; or boring under a public street. (d) No permit is required before performing Emergency repair or maintenance, provided however that if such Emergency repair or maintenance requires breaking of the asphalt, concrete or similar surface of the Public Rights-of-Way, the Utility Company performing such work shall notify the Director immediately, and in no event later than two hours, after the commencement of breaking of the asphalt, concrete or similar surface. Any Utility Company performing Emergency repair or maintenance in the Public Rights-of-Way that does not require the breaking of the asphalt, concrete or similar surface of the Rights-of-Way shall provide the Director with notice of any work performed by the next business day from the commencement of such work. An Utility Company shall provide the Director with a written, reasonably detailed description of Emergency repair or maintenance work performed in the Public Rights-of-Way and an updated map of any Facilities that were relocated within twenty (20) business days of completion of such work. In addition, the Utility Company shall comply with the requirements of this Section 10.900 for the restoration, replacement or repair of the Public Rights-of-Way. (e) If non-pavement excavation required for the installation of facilities necessary to initiate service to a customer's property or for routine repair or maintenance cannot be backfilled at the end of a business day, then the Utility Company performing the excavation shall fence off the excavated area. If such non-pavement excavation cannot be backfilled by the following business day, the excavation must be fenced off and a permit application must be submitted to the City the next business day. (f) Insurance and Bonding will be required in accordance with Section 10.910 below. (g) If the Utility Company fails to act upon any permit within ninety (90) calendar days of issuance, the permit shall expire unless extended by the City upon a showing of good cause. Upon expiration of a permit, an Utility Company shall be required to obtain another permit pursuant to the requirements of this Section 10.900. (h) The permit shall state to whom it is issued, location of work, location of Facilities, dates and times work is to take place, and any other reasonable conditions set out by the Director. (i) No permit shall be issued until the Utility Company requesting the permit provides the Director, in the format specified by the City, the following: (i) The completed application with the approximate location and proposed routing of new construction or reconstruction of all Facilities at least seven (7) days before beginning construction or reconstruction that involves an alteration to the surface or subsurface of the Public Rights- of-Way, unless otherwise approved by the Director and the applicant's plan for right-of-way construction or reconstruction. An Utility Company may not begin construction until the location of new Facilities and proposed routing of the new construction or reconstruction and all required plans and drawings have been approved in writing by the City, which approval will not be unreasonably withheld, taking due consideration of the surrounding area and alternative locations for the Facilities and routing. (ii) Five sets of construction plans prepared on a recognized scale no smaller than 1"=100', unless otherwise approved by the Director. Construction plans for structures must be sealed by a professional engineer to the extent required by The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes. 7 (iii) Except where a wider area is reasonably required by the Director, the construction plans shall show all features as set forth herein. For utility construction utilizing either aerial transmission lines or underground trenchless technology, the construction plans shall show all features located within seven (7) feet on either side of the proposed Facilities. For utility construction utilizing excavated trenches, the construction plans shall show all features located within seven (7) feet on either side of the excavation. The features that are required to be shown on the plans include existing underground and aerial wires or conduits, ducts, poles, wires, pipes, sewerage, water lines, and cables as well as their ownership; traffic signal and street light poles; fire hydrants; driveways; curbs, inlets and drains; sidewalks and wheelchair ramps; and trees and large shrubs. If the nature of the proposed Facilities or specific site conditions warrant it, the Director may increase the above distance to fifty feet (50'). State plane coordinates shall be shown for benchmarks, curb lines, and structures. Drawings shall show horizontal dimensions from the curb line and elevations. If typicals are used, they shall reference the station numbers for which they are to be applied. Traffic control plans shall be in conformance with the latest revision of the Texas Manual on Uniform Traffic Control Devices (TMUTCD). The Director may accept construction plans which deviate from the standards contained herein, so long as good cause is shown, and such a deviation is applied in a competitively neutral, non-discriminating manner. (iv) Location of all Public Rights-of-Way and utility easements which applicant plans to use. (v) Detail of all existing City utilities in relation to applicant's proposed route. (vi) Description of what the applicant proposes to install, including but not limited to pipe size, number of conduits, and valves, with appropriate details attached. (vii) Location of areas where asphalt or concrete in streets will be removed and replaced, with appropriate plans and details that include City of Round Rock standard construction details and Development and Construction Standards (DACS), as appropriate. (viii) Drawings of any boxes, trenches, handholes, manholes, switch gears, transformers, pedestals, etc. including depth located in Public Rights- of-Way. (ix) Handhole and/or manhole typicals of type of manholes and/or handholes applicant plans to use or access. (x) Complete legend of drawings submitted by the applicant. (xi) Name, address and telephone numbers of the contractor or subcontractor 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. Such information shall be provided as soon as it is known by the Utility Company, but in any event prior to the commencement of construction and shall be amended by the Utility Company as necessary during the course of the work by written notification to the Director. 8 (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. (xiii) A copy of any permit or approval issued by federal or state authorities for work in federal or state right-of-way located within the City, if requested by the Director. (j) The Director shall have the authority to place reasonable conditions and restrictions on the permit in order to protect the health, safety and welfare of the citizens of the City, as well as for the protection of property located within or adjacent to the right-of-way. (7) All construction and installation in the Public Rights-of-Way shall be accomplished by the Utility Company in strict compliance with the permit for the Facilities. The Director shall be provided access to the work and to such further information as may reasonably be required to ensure compliance with the permit. No deviation whatsoever from the permit shall be allowed without the Director's approval in writing of a permit amendment. When conditions warrant, such permit amendment may be accomplished with a written amendment in the field. (8) The Director may inspect the site to ensure compliance with the permit and shall conduct a final inspection of the site and provide final approval of the work permitted. The Director shall make a reasonable effort to complete the final inspection within five days following notification by the Utility Company that the project has been completed. Upon final inspection, if the Director finds that the permit has not been complied with, the Director will provide written notice to the Utility Company regarding the work to be performed in order to obtain final approval. (9) Copies of the approved construction permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the Director at all times when construction or installation work is occurring. (10) 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. (11) Requests for permits will be approved or disapproved by the Director within a reasonable time of receiving all the necessary information. (12) The Director may require a pre-construction meeting with the permittee and construction contractor. (13) If the Director declares an emergency with regard to the health and safety of the citizens and requests by written notice the removal or abatement of Facilities, or requests the relocation of an Utility Company's Facilities in accordance with Section 10.909(4), an Utility Company shall remove or abate the Utility Company's Facilities by the deadline provided in the Director's request. The Utility Company and the City shall cooperate to the extent possible to assure continuity of service. As stated in section 10.904(1)(a), a construction permit application fee is not required for City initiated relocation projects. If the Utility Company, after notice, fails or refuses to act, the City may remove, relocate or abate the Facility, at the sole cost and expense of the Utility Company, without paying compensation to the Utility Company and without the City incurring liability for damages. Upon receipt of an invoice from the City, the Utility Company shall promptly reimburse the City for all costs incurred by the City within thirty (30) calendar days from the date of the City invoice. (14) In determining whether any requirement under this Section 10.900 is unreasonable or unfeasible, the Director shall consider, among other things, whether the requirement would subject the Utility Company to an unreasonable increase in risk or service interruption, or to an unreasonable increase in liability for accidents, or to an 9 unreasonable delay in construction or in availability of its services, or to any other unreasonable technical or economic burden, and the Utility's obligations as a provider of last resort pursuant to the provisions of the Texas Utilities Code. (15) An Utility Company issued a permit pursuant to this Section 10.900 shall, at all times, employ the standard of care attendant to the risks involved to prevent actions, failures and accidents that may cause damage, injury or nuisance to Persons, the public, the Facilities of other Utility Companies, or to any City structures or structures owned by other Utility Companies located in the Public Rights-of-Way. An Utility Company issued a permit pursuant to this Section 10.900 shall observe all federal and state statutes and regulations and all applicable City Ordinances and Safety Codes. An Utility Company issued a permit pursuant to this Section 10.900 shall keep and maintain its Facilities in a safe and suitable condition, and in good order and repair. 10.907 RESTORATION AND REPAIR (1) Within fourteen (14) days of completion of replacement, upgrading, excavation, construction, installation, expansion, reconstruction, relocation, alteration, removal, maintenance or repair of Facilities or other work in the Public Rights-of-Way, an Utility Company shall temporarily restore and repair the Public Rights-of-Way. Within thirty (30) calendar days after completion of work in the Public Rights-of-Way, the Utility Company shall permanently restore, replace, relay and/or repair the surface, base, curbs, drainage systems, irrigation systems, landscape treatment, trees, shrubs, sidewalks, mailboxes, walls, and other City Facilities and infrastructure located on, in or under any Public Rights-of-Way that has been excavated, altered or damaged by reason of the replacement, upgrading, excavation, construction, installation, expansion, reconstruction, relocation, alteration, removal, maintenance or repair of the Utility Company's Facilities to the condition the Public Rights-of-Way were in before the construction or better and must receive final approval from the Director. (2) Restoration to the condition the Public Rights-of-Way was in before the construction shall be to the reasonable satisfaction of the Director. The restoration shall include, but shall not be limited to: (a) Restoration of all landscaping and sprinkler systems including replacing all ground cover damaged during work with the same type of ground cover or better by sodding, seeding, or as directed by the Director; (b) Installation of all manholes and handholes, as required; (c) Backfilling and compaction of all bore pits, potholes, trenches or any other excavation sites, unless other safety requirements are approved by the Director; (d) Smoothing of all trenches and ruts, and restoration of the surface to the lines and grades existing prior to the work being performed, unless otherwise approved by the Director; (e) Restoration of excavation site including compaction in accordance with City specifications. (3) All locate flags associated with the permitted utility project shall be removed during the clean-up process by the applicant or its contractor at the completion of the work. (4) Upon a showing of good cause, the City may at its sole discretion extend the time for restoration and repair of the Public Rights-of-Way under this subsection. Unless the Utility Company provides a recent photograph or a video tape of the Public Rights-of- Way before the construction, the condition of the Public Rights-of-Way before construction should be presumed in good condition, subject only to reasonable wear and tear, as determined by the Director. 10 (5) An Utility Company shall restore any right of way markers or monuments disturbed or destroyed during construction activities within thirty (30) days after construction has ceased. The Utility Company shall furnish three sets of drawings, blueline or blackline, detailing the restored monumentation. State Plane Coordinates shall be shown for all monumentation (existing or restored). The drawings shall be signed (original signature), sealed and certified by a Registered Professional Land Surveyor, and delivered to the Director for approval, no later than thirty (30) days after construction has ceased. (6) Should the Director reasonably determine that additional restoration, replacement or repair work is required to restore any Public Rights-of-Way to a condition that is at least as good as it was in before construction, the City shall provide written notice to the Utility Company of the need to perform such additional restoration, replacement or repair work. The Utility Company must begin such additional restoration, replacement or repair within ten (10) business days of receipt of written notice and diligently pursue such work to completion. In the event repairs have not been initiated during such ten (10) business day period or the Utility Company ceases to diligently pursue such work to completion, or the work is not performed to the reasonable satisfaction of the Director the City may repair such portion of the Public Rights-of-Way as may have been disturbed by the Utility Company. Upon receipt of an invoice from the City, the Utility Company shall reimburse the City for the costs so incurred within thirty (30) calendar days from the date of the invoice. The City may, for good cause, extend the ten (10) business day period. (7) Notwithstanding the foregoing in subsection (6), if the Director determines that the failure of the Utility Company to properly repair or restore the Public Rights-of-Way constitutes a safety hazard to the public, the City may undertake emergency repairs and restoration efforts, after emergency notice has been provided, to the extent reasonable under the circumstances, and the Utility Company failed to respond within a reasonable time specified by the City. Upon receipt of an invoice from the City, the Utility Company shall reimburse the City for all costs incurred by the City within thirty (30) calendar days from the date of the City invoice. 10.908 CONSTRUCTION STANDARDS (1) Once a permit is issued, an Utility Company, or its representative, shall notify the Director and any other designated departments of the City at least 24 hours in advance that construction in the Public Rights-of-Way is ready to proceed. Information signs (at least 3 ft. x 3 ft. in size) stating the identity of the contractor doing the work, their telephone number, and the Utility Company's identity and telephone number shall be placed at the location where construction is to occur no earlier than five business days and no later than 24 hours prior to the beginning of work in the Public Rights-of-Way and shall continue to be posted at the location during the entire time the work is occurring and/or until the work is completed. An informational sign will be posted on each end of the Public Rights-of-Way one hundred feet (100') before the construction location commences. Information signs shall be located in such a manner that does not adversely affect vehicular or pedestrian traffic. (2) All construction shall be in conformity with all City codes and applicable local, state, and federal laws. (3) Erosion control measures and advance warning signs, markers, cones, and barricades must be in place before work begins. An Utility Company may be required to show proof of engineered plans relating to storm water and erosion when applicable or a letter stating the Utility Company is not required by law to obtain such plans. The Utility Company shall be responsible for storm water management and erosion control that complies with city, state and federal guidelines, as applicable. Requirements shall include, but shall not be limited to, silt fencing around any excavation that will be left 11 overnight, silt fencing in erosion areas until reasonable vegetation is established, barricade fencing around open excavations, and wire backed silt fencing in high erosion areas. Upon request, the Utility Company may be required to furnish documentation submitted or received from the federal or state governments. (4) The Utility Company shall ensure that dust control measures are implemented at the site. (5) Except in the case of an Emergency, or as otherwise approved by the Director: (a) Lane closures on major thoroughfares will be limited to between 9:00 a.m. and 4:00 p.m. unless the Director grants prior approval. All traffic control devices shall conform to the TMUTCD, provided that the City may dictate restrictions due to rush hour traffic, unique events, or other conditions that may warrant such restrictions. (b) Working hours in the Public Rights-of-Way are limited to the hours between 7:00 a.m. to 6:00 p.m. Monday through Friday, work to be performed after 6:00 p.m. on Monday through Friday must be approved by the Director in advance. Any work performed on Saturday must be approved by the Director forty-eight (48) hours in advance. (c) Directional boring is permitted only Monday through Friday 7:00 a.m. to 6:00 p.m., unless approved in advance. (d) No work in the Public Rights-of-Way shall be performed on Sundays or on City observed holidays. (6) Without affecting the legal relationship between the Utility Company and its contractors, an Utility Company is responsible for the workmanship and any damages by a contractor or subcontractor. A responsible representative of the Utility Company will be available to the Director at all times during construction. (7) The Utility Company or contractor or subcontractor shall notify the Director immediately of any damage to other utilities, either City owned or privately owned. (8) It is City's policy to discourage the cutting of street and sidewalk pavements; however when a street or sidewalk pavement cut is required, prior approval must be obtained in accordance with Section 10.300 of this Code and all requirements provided in Section 10.300 shall be followed. Repair of all street and sidewalk pavement cuts must be made promptly to avoid safety hazards to vehicle and/or pedestrian traffic. (9) Installation of Facilities must not interfere with City utilities or the maintenance of them, in particular, gravity dependent Facilities. (10) New Facilities must be installed to a depth approved by the Director, in accordance with DACS. (11) All directional boring shall have a locator place bore marks and depths while bore is in progress. A locator shall place marks at each stem with paint dots and depths at least every other stem. (12) Utility Companies working in the Public Rights-of-Way are responsible for obtaining line locates from all affected utilities or others with Facilities in the Public Rights-of- Way prior to any excavation. Use of the Geographic Information System or the plans of record does not satisfy this requirement. (13) The Utility Company will be responsible for verifying the location, both horizontal and vertical, of all Facilities which might possibly interfere with the construction activities. When required by the Sec 251.001 Texas Utilities Code (the Underground Facility 12 Damage Prevention and Safety Act), the Utility Company shall verify locations by potholing, hand digging, or other acceptable method prior to any excavation or boring. (14) Placement of all manholes and/or handholes must be approved in advance by the Director. Handholes or manholes will not be located in sidewalks unless approved by the Director. (15) Locate flags or marks shall not be removed from a location while Facilities are being constructed. (16) When the pumping of water and/or mud is required during construction, the water and/or mud shall be contained in accordance with applicable City ordinances and federal and state law and the directives of the Director. (17) All streets and sidewalks shall be kept clean and clear of rocks, mud, dirt, debris, etc. to the extent practicable and any street or sidewalk shall be cleaned upon notification by the Director. If any streets or sidewalks are not kept clean, the Director may suspend work. (18) Except in emergency situations, work within a roadway shall not be initiated during inclement weather involving foggy, rainy, or icy conditions. 10.909 CONDITIONS OF PUBLIC RIGHTS-OF-WAY OCCUPANCY (1) In the exercise of governmental functions, the City has first priority over all other users of the Public Rights-of-Way. To the fullest extent allowed by law, the City reserves the right to: (a) lay sewer, gas, water Facilities, and any other pipe lines or cables and conduits; (b) do underground and overhead work, including attachments; (c) require, restructuring or changes in the City's aerial Facilities in, across, along, over or under a public street, alley or Public Rights-of-Way that may be occupied by an Utility Company; and (d) change the curb, route or grade of sidewalks and streets. (2) The City shall assign the location in or over the Public Rights-of-Way among competing users of the Public Rights-of-Way with due consideration to the public health and safety considerations of each user type, and to the extent the City can demonstrate that there is limited space available for additional users, may limit new users, as allowed under state or federal law. As a priority, each user of the Public Rights-of-Way will be allowed one alignment on one side of the street for placement of its Facilities, provided there is adequate space available. In the event an additional alignment(s) or both sides of the street has been requested by a user, the Director will grant such request, provided there is adequate space available and the requestor has demonstrated the financial or technical impracticability of the use of the requestor's single alignment or use of only one side of the street. (3) If the City authorizes abutting landowners to occupy space under the surface of any public street, alley, or Public Rights-of-Way, the grant to an abutting landowner shall be subject to the rights of the previously authorized user of the Public Rights-of-Way. (4) If the Director gives written notice, the Utility Company shall, at its own expense (unless provided otherwise by state law or a franchise), temporarily or permanently, remove, relocate, change or alter the position of the Utility Company's Facilities that are in the Public Rights-of-Way within one hundred and twenty (120) days, except in circumstances that require additional time as reasonably determined by the City based upon information provided by the Utility Company. For projects expected to take longer than one hundred and twenty (120) days to remove, relocate, change or alter, the Director will confer with the Utility Company before determining the alterations to be required and the timing thereof. The Director shall give notice whenever the City has determined that removal, relocation, change or alteration is reasonably necessary for the construction, operation, repair, maintenance or installation of a City 13 governmental public improvement in the Public Rights-of-Way. This Section 10.900 shall not be construed to prevent an Utility Company's recovery of the cost of relocation or removal from private third parties who initiate the request for relocation or removal, nor shall relocation or removal be required if improvements are solely for beautification purposes without prior joint deliberation and agreement with the Utility Company. (5) If the Utility Company fails to relocate Facilities in the time required by the Director in this Section 10.900, the Utility Company shall be subject to liability to the City for such delay. In addition, the City may relocate the Utility Company's Facilities after providing reasonable notice to the affected Utility Company. Upon receipt of an invoice from the City, the Utility Company shall reimburse the City for all costs incurred by the City for such relocation within thirty (30) calendar days from the date of the City invoice. (6) Notwithstanding anything in subsection (4) above, the Director and the Utility Company may agree in writing to different time frames than those provided above if circumstances reasonably warrant such a change. (7) An Utility Company may trim trees or other vegetation in or over the Public Rights-of- Way as needed for the safe and reliable operation, use and maintenance of its Facilities. All tree trimming shall be performed in accordance with the City's Tree Protection and Preservation Ordinance, as amended. The Utility Company, its contractor or agent, shall remove such trimmings within seventy two (72) hours following routine maintenance or within ten (10) business days following emergency activities. If the Utility Company fails to remove all debris resulting from trimming trees or other vegetation, the City may notify the Utility Company of such failure. If the Utility Company fails to remove such debris within (5) business days from receipt of notice from the City, the City may remove the debris or have it removed, and upon receipt of a bill from the City, the Utility Company shall reimburse the City for all costs incurred within thirty (30) working days. (8) An Utility Company shall temporarily remove, raise or lower its aerial Facilities to permit the moving of houses or other bulky objects. The Utility Company shall meet with the party or parties requesting the temporary rearrangement within 72 hours of receipt of notice from the City to discuss the scheduling and cost. The expense of these temporary rearrangements shall be paid by the party or parties requesting and benefiting from the temporary rearrangements. The Utility Company may require prepayment or prior posting of a bond from the party requesting the temporary move. (9) In the event an Utility Company's use of its Facilities is discontinued or abandoned, the Utility Company shall notify the City and thereafter shall forthwith remove its Facilities from the Public Rights-of-Way unless specifically permitted to remain, and on the removal thereof shall restore, repair or reconstruct the Public Rights-of-Way where such removal has occurred, to the same condition as existed prior to the removal. In the event of failure, neglect or refusal of the Utility Company, after thirty (30) days notice by the Director to remove such Facilities as directed or repair the Public Rights- of-Way upon removal of its Facilities, the City may do such work or cause it to be done, and the reasonable cost thereof as determined by the City shall be paid by the Utility Company and collection may be made by court action or otherwise. There is a presumption of discontinued use if the Facilities or related appurtenances are not used for a period of one year. Such presumption, may be rebutted by the Utility Company by documentation of use or by documentation of future use as an Utility Company designated as a provider of last resort under the Texas Utilities Code. 10.910 INSURANCE AND BOND REQUIREMENTS (1) Insurance 14 (a) An Utility Company shall obtain and maintain insurance in the amounts provided in paragraph (b) below with an insurance company licensed to do business in the State of Texas, with an AM Best rating of at least A- . An Utility Company shall file and maintain proof of insurance with the Director at the time of the request for construction permits and prior to any commencement of work. The City's current insurance forms and requirements may be obtained from the Engineering and Development Services Department and at www.roundrocktexas.gov. (b) An Utility Company shall furnish to the Director, at no cost to the City, a certificate of insurance on forms provided by the City, showing proof of liability insurance in the total amount of one million dollars ($1,000,000). (c) The insurance certificate required under subsection (b) above shall: (i) include a cancellation provision in which the insurance company is required to provide the City a thirty (30) day written notice before a cancellation, non renewal, reduction of policy limits, or other material change; and (ii) provide that notice of claims related to Public Rights-of-Way construction shall be provided to the Director by certified mail. (d) The coverage must be on an "occurrence" basis and must include coverage for personal injury, contractual liability, premises liability, medical damages, underground, explosion and collapse hazards. (e) An insurance certificate obtained in compliance with this Section 10.910 is subject to City Attorney approval. An Utility Company shall immediately advise the City of actual or potential litigation that may develop and may affect an existing carrier's obligation to defend and indemnify. (f) The policy clause "Other Insurance" shall not apply to the City if the City is an insured under the policy. (g) An Utility Company shall pay premiums and assessments for the insurance required under this Section. The insurance shall be primary coverage for losses covered by the policies. A company that issues an insurance policy has no recourse against the City for payment of a premium or assessment. Insurance policies obtained by an Utility Company must provide that the issuing company waives all right of recovery by way of subrogation against the City in connection with damage covered by the policy. (h) The City will accept certificates of self-insurance issued by the State of Texas, or letters written by the Utility Company in those instances where the State does not issue such certificates, which provide the same coverage as required herein. The City has the right to require proof of financial stability prior to accepting the proof of self-insurance, provided that defense of the City shall be comparable as provided by an insurance carrier. The defense and claims processing required of holders of a state-issued certificate of franchising authority to provide cable or video services shall be in accordance with Texas Utility Code, Chapter 66. (2) Bonds (a) Unless otherwise provided for by an Utility Company's valid franchise the Director shall require reasonable bonding requirements of an Utility Company, as are required of other entities that place Facilities in the Public Rights-of- Way. Such bonding amounts will be reasonably determined by the Director depending on several factors as to public safety and risk of harm to Persons and 15 property. Such factors include but are not limited to: (1) the nature of the construction project ; (2) type of facility ; and (3) past construction history of the Utility Company in the City as to any damage claims, repairs and timeliness of construction. (b) The Utility Company shall file an annual surety bond which will be valid each year construction will occur through one (1) full year after the completion of the construction from a surety company authorized to do business in the state of Texas, and must be on forms provided by the City. Such surety bond will be in the amount of the estimated cost to restore the Public Rights-of-Way for the work anticipated to be done in that year and to relocate Facilities pursuant to this Section 10.900. If the Director determines that the annual surety bond on file is insufficient to restore the Public Rights-of-Way and to relocate Facilities related to a specific project for which a permit application has been filed, then the Director may require the Utility Company to file an additional surety bond for such project. (c) The City may either waive or reduce the amount of the bond in the event the Utility Company provides written documentation as to reserves available to compensate the City for damages, and has a two year history of no claims, or damages to City property by the City, or of prompt payment on such claims. Further, notwithstanding subsection (a), a bond shall not be required of an Utility Company that can demonstrate a record of at least four years of work in the Public Rights-of-Way in the City and to the extent applicable, in all other municipalities it has performed such work, free of unsatisfied claims. No bonds for aerial construction will be required of holders of a state-issued certificate of franchising authority to provide cable or video services, in accordance with Texas Utility Code, Chapter 66. (3) Alternate Compliance Methods The above requirements may be met by utilities with a current franchise or license if their current franchise or license adequately provides for insurance or bonds or provides an indemnity in favor of City. 10.911 SYSTEM MAP (1) All Utility Companies who have Facilities in the Public Rights-of-Way existing as of the date this Section 10.900 is adopted shall provide a system map of their Facilities to the City in a digital format commercially available, non-proprietary software no later than two (2) years after the passage of this Section 10.900, unless the Utility Company demonstrates an economic impracticality to provide such system map in the above format. An updated system map shall also be provided to the City on an annual basis to include new Facilities. (2) Information provided to the City pursuant to this section may be designated confidential by the providing Utility Company and will be kept confidential by the City to the extent allowed by law. 10.912 IMPROPERLY INSTALLED FACILITIES (1) Any entity doing work in the Public Rights-of-Way shall properly install, repair, upgrade and maintain Facilities. (2) Facilities will be considered to be improperly installed, repaired, upgraded or maintained if: 16 (a) the installation, repair, upgrade or maintenance endangers people or property or constitutes a threat to public health and safety; (b) the Facilities do not meet applicable Federal, State and City codes and regulations; (c) the Facilities are not capable of being located using reasonable methods; or (d) the Facilities are not installed in accordance with the approved permit issued by the Director. 10.913 REVOCATION OF PERMIT If an Utility Company violates the terms and conditions contained herein, a permit may be revoked by the Director or designee. 10.914 APPEAL FROM REVOCATION OR DENIAL OF PERMIT Appeal from revocation or denial of a permit or from the decision of the Director shall be to the City Manager. Appeal shall be filed with the City Secretary within fifteen (15) days from the date of the decision being appealed. 10.915 INDEMNITY (1) Except as to Certificated Telecommunications Providers, as provided in Texas Local Government Code, Chapter 283, and holders of a state-issued certificate of franchising authority to provide cable or video services, in accordance with Texas Utility Code, Chapter 66, each Utility Company placing Facilities in the Public Rights-of-Way shall agree to promptly defend, indemnify and hold the City harmless from and against all damages, costs, losses, claims, demands, suits, causes of action,judgments or expenses arising out of, incident to, concerning or resulting from the negligent or willful acts or omissions of the Utility Company, its agents, employees, and subcontractors, in the performance of activities pursuant to or authorized under this Section 10.900 for the repair, replacement, or restoration of the City's property, equipment, materials, structures and Facilities that are damaged, destroyed or found to be defective; damage to or loss of the property of any Utility Company, including, but not limited to the Utility Company, its agents, officers, employees and subcontractors, City's agents, officers and employees, and third parties; and 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 Utility Company, Utility Company's subcontractors and City, and third parties. (2) Upon commencement of any suit, proceeding at law or in equity against the City relating to or covering any matter covered by this indemnity, for which the Utility Company is obligated to indemnify and hold the City harmless, or to pay said final judgment and costs, as the case may be, the City shall give the Utility Company reasonable notice of such suit or proceeding. The Utility Company shall promptly provide a defense to any such suit or suits, including any appellate proceedings brought in connection therewith, and pay any final judgment or judgments that may be rendered against the City by reason of such damage suit. Upon failure of the Utility Company to comply with the provisions of this Section 10.900, after reasonable notice to the City, the City shall have the right to defend the same and in addition to being reimbursed for any such judgment that may be rendered against the City, together with all court costs incurred therein, the Utility Company shall promptly reimburse the City for attorney's fees, including those employed by the City in such case or cases, as well as all expenses incurred by the City by reason of undertaking the defense of such suit or 17 suits, whether such suit or suits are successfully defended, settled, compromised, or fully adjudicated against the City. (3) This indemnity provision shall not apply to any liability resulting from the negligence of the City, its officers, employees, agents, contractors, or subcontractors. (4) The provisions of this indemnity are solely for the benefit of the City and are not intended to create or grant any rights, contractual or otherwise, to any other Person or entity. (5) To the fullest extent permitted by law, an Utility Company shall pay all expenses incurred by the City in defending itself with regard to all damages and penalties provided in this Section 10.900. These expenses shall include all out-of-pocket expenses such as attorney's fees, and shall also include the reasonable value of any services rendered by any employees of the City. In the event the City is compelled to undertake the defense of any such suit by reason of an Utility Company's failure to provide a defense as hereinabove provided, the City shall have full right and authority to make or enter into any settlement or compromise of such adjudication as the City Council shall deem in the best interest of the City, this without the prior approval or consent of the Utility Company with respect to the terms of such compromise or settlement. 10.916 GOVERNING LAW This Section 10.900 shall be construed in accordance with the City Code(s) in effect on the date of passage of this Section 10.900 to the extent that such Code(s) are not in conflict with or in violation of the Constitution and laws of the United States or the State of Texas, subject to the City's ongoing authority to adopt reasonable police power based regulations to manage its Public Rights-of-Way, pursuant to Sections 10.906 and 10.907 or as otherwise provided by law. 10.917 CONSTRUCTION PERMIT ACCEPTANCE Each Construction Permit Application to use the Public Rights-of-Way shall contain, or have attached, the following: "By this application for a construction permit to use the Public Rights-of-Way, 1, as the lawful representative of , a representative of the Facility Owner with authority to bind the Owner, hereby acknowledge that I have read and understood the terms and conditions approved by the City of Round Rock under Section 10.900, City Public Rights-of-Way Management (Ordinance No. ). Name: Title: Date: II. A. All ordinances, parts of ordinances, or resolutions in conflict herewith are expressly repealed. This ordinance shall 18 not be construed to repeal or invalidate any franchises in effect at the time of its passage. B. The invalidity of any section or provision of this ordinance shall not invalidate other sections or provisions thereof. C. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Ordinance was adopted was posted and that such meeting was open to the public as required by law at all times during which this Ordinance and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. III. This Ordinance shall be effective as of 12 : 01 a.m. on October 1, 2007 . .h READ and APPROVED on first reading this the IX day of July, 2007 . READ, APPROVED and ADOPTED on second reading this the n 1 day ofU—QUALL , 2 7 . NY Mayor City of Round Rock, Texas A EST: CHRISTINE R. MARTINEZ, City Secret I y 19 DATE: August 2, 2007 SUBJECT: City Council Meeting - August 9, 2007 ITEM: 7A1. Consider an ordinance amending Chapter 10, Section 10.900 of the Round Rock Code of Ordinances revising the rules and regulations governing the construction and use of public rights-of-way. (Second Reading) Department: Engineering and Development Services Staff Person: Tom Word, Chief of Public Works Operations Justification: This amendment establishes uniform rules and regulations for authorizations to occupy and use the rights-of-way in the city, provides for a savings clause and repeals conflicting ordinances and resolutions. Funding• Cost: N/A Source of funds: N/A Outside Resources: N/A Background Information: The City provided AT&T Texas, Atmos Energy Corporation, Level 3 Communications (formerly Broadwing Communications), Georgetown Utility Systems, Grande Communications, MCI, McLeod USA, ONCOR Electric Delivery, Pedernales Electric Cooperative, Inc., Sprint, Time Warner Cable and Time Warner Telecommunications an opportunity to review the draft ordinance and provide feedback for consideration by City staff. In addition, the City hosted two meetings for the utility providers to discuss their questions and concerns directly with staff. Based on these discussions, staff made reasonable modifications to the ordinance. Public Comment: N/A