HomeMy WebLinkAboutO-2013-3465 Right-of-Way Ordinance and Utility Permit ProcessORDINANCE NO. 2013-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LA PORTE
AMENDING CHAPTER 62, "STREETS, SIDEWALKS, AND OTHER PUBLIC
PLACES", OF THE CODE OF ORDINANCES OF THE CITY OF LA PORTE, BY
ADOPTING REGULATIONS FOR MANAGEMENT OF PUBLIC RIGHTS-OF-WAY
IN THE CITY LIMITS; CONTAINING A REPEALING CLAUSE; CONTAINING A
SEVERABILITY CLAUSE; FINDING COMPLIANCE WITH THE OPEN MEETINGS
LAW; PROVIDING THAT ANY PERSON VIOLATING THE TERMS OF THIS
ORDINANCE SHALL BE DEEMED GUILTY OF A MISDEMEANOR AND UPON
CONVICTION SHALL BE FINED IN A SUM NOT TO EXCEED FIVE HUNDRED
DOLLARS; PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF; AND
PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE, TEXAS:
Section 1: That Chapter 62 of the La Porte Code of Ordinances, "Streets, Sidewalks, and
Other Public Places", is hereby amended by adding new Article IV. "Management of Public
Rights -of -Way", which shall hereinafter read as follows:
"Article IV. Management of Public Rights -of -Way
Sec. 62-100. — Definitions.
For the purpose of this subchapter, the following definitions shall apply unless the
context clearly indicates or requires a different meaning.
Applicant or Person or Utility. All of these terms shall include any individual, firm,
partnership, association, corporation, company, business entity or organization of any kind. All
of these terms shall also include the owner of Facilities located in the Right of Way. These terms
shall not include the city.
City. The City of LaPorte, Texas.
Director. The City Planning Director and/or his designee unless stated otherwise.
Excavation. The making of a hole or cavity of any size in a surface, the boring or
tunneling under a surface or the disruption or breaking of a surface in the Right -of -Way as
"Right of Way" is defined below.
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Facilities. Includes personal property owned by a provider of a utility including but not
limited to electric, gas, telecommunications, or cable television services including but not limited
to pipe, conduit, ducts, cables, wires, lines, towers, wave guides, optic fiber, microwave, any
associated converters, and all equipment located in the Rights of Way.
Right of Way. All area on, below, or above present and future public property containing
roadway, highway, street, public sidewalk, alley, waterway, or existing utility easement in which
the City of La Porte has a legal interest including the City interest in the easements or right-of-
way for the La Porte Area Water Authority.
Road or Roadway or Street. The surface of and the space below or above the width
between the boundary lines of a publicly maintained way any part of which is open to the public
for vehicular travel.
Shoulder. For roads without a curb, the paved or unpaved area maintained along the
traveled road surface located between the edge of the roadway and the slope down to the flow
line of a drainage ditch. The maximum shoulder width shall be considered to be 10 -feet from the
edge of roadway.
Sec. 62-101. Exempted Facilities.
Transmission pipeline facilities that are governed by Chapter 102 of the La Porte Code of
Ordinances are exempted from this Article.
Sec. 62-102. Excavation, Boring and Tunneling.
(a) When an excavation is planned to be made in a Street or Right -of -Way under a
paved surface, such excavation shall be accomplished by trenchless methods except for those
locations where the Director has determined that trenchless methods would not be technically or
economically practical for the Utility or where otherwise exempted by the Director. This
provision does not apply to emergency repairs, in-kind replacement and other proposed work that
meets the qualifications for a permit exemption provided in Section 62-104 (A.2) of this chapter.
(b) All Excavation, backfill and restoration of a Right of Way area in connection with
Utility's Facilities shall be the same as the City of La Porte Water Line Backfill detail or as
otherwise specified in an approved permit.
(c) Where a Utility is working in the Street, the Utility will utilize all applicable
signage and appurtenances required by, and in conformance with, the Texas Manual of Uniform
Traffic Control Devices (MUTCD).
(d) Requests for field locate requests of the City of La Porte storm sewer, sanitary
sewer and water main and the La Porte Area Water Authority water main must be called in to the
Public Works Department at (281) 471-9650 at least 48 -hours in advance of construction.
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Emergency city utility locates must be called into the La Porte Police Department dispatch at
(281) 471-2141. Texas One Call does not notify the city.
(e) When an excavation is made by the Utility and after the repair or installation work is
completed, the Utility doing such work shall immediately secure the trench in a safe manner and
restore the excavated area within a reasonable length of time to as good a condition as before the
commencement of the work and according to the specifications established by the Director.
Except where otherwise approved by the Director, any length of time required by the Utility to
complete the permanent restoration of an excavated area in excess of fourteen (14) days shall be
prima facie evidence that the length of time is not reasonable. The Utility who made the
excavation shall maintain the excavation in a safe and easily traversable condition until the
surface is permanently restored.
(f) When the Public Works Director has determined that a Utility's work in the Right
of Way has created an imminent threat to the health and safety of the public, the Public Works
Director shall endeavor to make verbal contact with the Utility to communicate the need for the
Utility to immediately remedy such condition. If the contact attempt is unsuccessful or if the
Utility is unable or unwilling to respond in the timeframe required by the Public Works Director,
the Public Works Director may order City crews to make the area safe and secure until such time
as the Utility can respond. The Utility shall reimburse the City the full amount of the
documented time, materials and equipment cost incurred by the City to construct the remedy.
This provision authorizes the City, under the described circumstances, to take steps such as
covering open excavations for the purpose of making the construction area safe within road or
shoulder areas or to remove excavated material blocking drainage ways; but it does not authorize
City personnel to perform work directly on a utility not owned by the City.
(g) Any Utility who has restored or caused to be restored any Street pursuant to this
subchapter shall ensure the quality of the restoration workmanship for one year following the
completion of the restoration. During the one-year maintenance period, the Utility shall remedy
any area repaired by the Utility that, in the reasonable opinion of the Public Works Director, as a
result of the quality of workmanship or materials, is in appreciably worse condition than the area
surrounding the restoration site.
(h) Where the City has provided at least eighteen (18) months notice of a planned
City roadway construction, improvement, or resurfacing project, a Person may not excavate
within the roadway pavement limits for a period of five (5) years after the completion of the City
roadway project. If excavation by the Utility within the new pavement area is unavoidable (i.e.
emergency repairs), then (a) the Director may require the utility to restore the roadway pavement
over the excavated area to City standards and grind 2 -inches of existing asphalt and resurface the
entire half -width of the roadway (roadway center to the edge of pavement) including the
excavated area that is within 100 -Lin. Ft. of the excavated area or (b) for concrete streets, the
Director may require the removal and replacement of the existing concrete curb and entire half -
width of the concrete street (roadway center to the back of curb) including the excavated area to
the nearest construction joint.
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(i) Regardless of pavement age, where the utility proposes open cut excavation
within an asphalt roadway for a distance greater than 300 -feet parallel to the centerline, the
Director may require the pavement to be milled and resurfaced the entire width of the roadway
lane to be excavated.
Sec. 62-103. Private Utilities in Public Right -of -Way
Private services and other items including, but not limited to, forcemains, drains,
sprinkler systems, pet fencing, and underground wiring for the benefit of an individual property
or owner shall not be located in the public right-of-way without a recorded agreement with the
city. In any case, with or without a recorded agreement, neither the City nor the City's
contractors nor other agents working on behalf of the City shall be liable for the cost to repair or
replace any such item encountered and damaged by them in the course of their operations within
the public right-of-way areas.
This section does not extend to individual service lines or other facilities provided by a
public utility company with a franchise agreement and general approved permit on file with the
City. Neither does this section apply to a Person granted a License Agreement to locate any such
infrastructure within the Public Right -of -Way by the Planning and Engineering Department.
Sec. 62-104. Permit Required.
(a) No Person shall use or occupy Right of Way within the City for the purpose of
installing or maintaining Facilities except in compliance with the provisions of this ordinance.
Nor may any person construct any upgrades, relocation, rehabilitation, or new installation of
Facilities in the Rights -of -Way without first obtaining a construction permit from the Director.
(b) EXEMPTIONS TO PERMIT REQUIREMENT.
(1) A permit is not required for isolated repair and/or replacement in-kind of
the existing Facilities. "Isolated repair and/or replacement in kind" is that repair and/or
replacement in kind of Facilities over a distance not exceeding 300 -feet total for underground
facilities.
(2) A permit is not required for adding new aerial facilities on existing poles
to a minimum elevation of 16 -feet above ground elevation.
(3) A permit is not required where it is indicated in the current franchise
agreement that the franchise agreement itself shall constitute a permit to perform all work on the
Company's (Utility's) system within the right-of-way. As of the date of the adoption of this
ordinance, this exemption applies only to CenterPoint Energy Houston Electric, LLC.
(4) A permit is not required for emergency service repairs or situations where
excavations are needed immediately to correct or remove a situation which presents an
immediate and imminent threat to the health, safety and welfare of the public. In these
situations, the Person making the excavation shall immediately contract the Public Works
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Department at (281)471-9650. After business hours contact the La Porte Police Department
dispatch at (281)471-2141 or 911 and request a standby utility supervisor.
(5) A permit is not required for the following excavations:
(i) excavations made by or on behalf of a resident or owner of the
abutting property when the person has a city -approved site plan,
permit, or other approval specifically for the proposed excavation;
(ii) excavations made outside of the Street, Shoulder or curb for the
installation of a utility service drop.
(iii) the replacement in-kind of a single damaged utility pole or light
pole.
(6) In no case shall an exemption of the permit requirement relieve the
obligation of the Person excavating to provide sufficient notice for other existing utility locations
and markings prior to construction.
(7) In no case shall an exemption of the permit requirement constitute a
waiver any other provision of this ordinance.
(c) WHEN PERMITS ARE REQUIRED, the permit will be in the name of the
Person who will own the Facilities to be constructed. The permit application must be completed
and signed by a representative of the owner of the Facilities to be constructed. During the term
of the Permit the Utility shall be liable for the acts or omissions of any entity used by the Utility
when such entity is involved directly or indirectly in the construction and installation of the
Utility's Facilities to the same extent as if the acts or omissions of such entity were the acts or
omissions of the Utility and consistent with the Texas Local Government Code.
(d) Any person desiring a permit shall apply for such at least ten (10) working days
before the commencement of any work unless otherwise waived by the Director.
Notwithstanding this limitation, the Utility is encouraged to request a waiver from the Director if
the 10 -working day period may be burdensome to the end user requesting utility service or that
the end user might otherwise be without service. The Director will make every reasonable effort
not to delay the Utility of the Utility's ability to provide service to the end user. A permit is not
effective and valid until it is signed by the Director or his designated representative.
(e) The work for which a permit is issued shall be commenced within 45 days of the
effective date of the permit. In the event that special, exceptional or unusual circumstances
prevent the commencement of the work within the initial 45 -day period, the holder of the permit
may apply for a time extension before the expiration of the initial time period and the Director
may approve the same. If such work is not commenced with the initial time period or any
extension thereof, the permit shall be null and void.
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(f) Any Person making an excavation in the Right of Way without an effective and
valid permit shall cease all excavation work when ordered to do so by the Director or his
designated representative and shall not resume such work until he has complied with this
subchapter.
(g) When a Person other than a franchised Utility has a license or other authorization
from the City to use the Right of Way and that authorization is in effect at the time that this
Ordinance takes effect, the Person shall continue to operate under and comply with that current
authorization from the City of whatever form, and in the event this Ordinance conflicts with the
existing Authorization, the more restrictive provision shall apply.
When a Utility is under a current franchise agreement with the City at the time that this
Ordinance takes effect, the franchise agreement will control when the franchise agreement
conflicts with this Ordinance.
When a Utility enters into a new or renewed franchise agreement with the City after the
adoption date of this Ordinance, the provisions of this Ordinance will control over the franchise
agreement unless there is an explicit intent stated in the new franchise agreement to waive a
requirement of this Ordinance.
When a provision in this Ordinance is contrary to state or federal law, that state or federal
law shall apply.
Sec. 62-105. Information Required In Permit Application.
An application for a construction permit shall contain the following information unless
specifically waived by the Director or as noted below:
(1) The proposed, approximate location and route of all Facilities to be
constructed or installed and the Applicant's plan for Rights -of -Way
construction. Plans may be submitted electronically provided that the
plans are legible when printed on 11" x 17" sheets. Accurately
dimensioned details and plan sketches will be sufficient provided that the
plan detail is sufficient enough in the opinion of the Director for city
personnel to verify that the new Facilities are being constructed along the
permitted location and alignment. Where the Director believes prudent for
the review of potential conflicts between the new Facilities and any
existing public infrastructure, the Director may require the Utility to have
the existing underground utilities marked and the Utility's proposed
Facility locations staked for a field review of the proposed construction. .
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(2) Detail of the location of all Rights -of -Way and utility easements that
Applicant plans to use.
(3) Detail of all existing City utilities in relationship to Applicant's proposed
route. (This item will not be routinely required, but may be when in the
reasonable opinion of the Director it would be prudent to show
particularly sensitive public infrastructure on the permitted plan.)
(4) Detail of what Applicant proposes to install such as conduit size, number
of interducts, valves and similar information.
(5) Note the locations where the Utility anticipates open cut installation.
(6) Locations of any bores, trenches, handholes, manholes, switch gears,
transformers, pedestals, etc., including depth.
(7) Location and dimensions of any structure greater than 100 cubic feet.
(8) A description of trench safety measures to be utilized in all excavations
over five (5) feet in depth.
(9) Complete legend of drawings submitted by Applicant which may be
provided by reference to previously submitted documents provided such
documents are current and up-to-date.
(10) When submitted in hardcopy format, three (3) sets of plans must be
submitted with permit application.
(11) When known, the Utility will provide the name, address and phone
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 the
construction.
(12) A description of the construction and installation methods to be employed
for the protection of existing structures, fixtures and Facilities within or
adjacent to the Rights -of -Way and the estimated dates and times work will
occur. (When required by the Director.)
(13) Other items necessary to review to ensure the health, safety and welfare of
the citizens and other users of the Right of Way in the opinion of the
Director.
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Sec. 62-106. Timeframe and Process for City Review and Inspection.
The City shall issue a construction permit or written denial with written summary of the
deficiency or deficiencies causing the denial within 10 -working days after receipt of a complete
application. The Director will make every reasonable effort not to delay the Utility's ability to
provide service to the end user and to respond and provide a response prior to the end of 10 -
working days if possible.
The Director of Planning shall govern the permit review process with input and
assistance from the Director of Public Works. Upon permit approval the Director of Public
Works shall govern the inspection process with input and assistance from the Director of
Planning.
Sec. 62-107. Reserved for Future Use
Sec. 62-108. Permit Fees.
To be acceptable for filing, an application shall be accompanied by a permit fee in the
following amount as appropriate:
(1) For certificated telecommunications providers
providing access lines (as defined in Chapter
283 Local Government Code): no fee
(2) For Persons occupying the Rights -of -Way of
the City under a local and/or state franchise
agreement or ordinance: no fee
(3) For all other Applicants: no fee except
for a competitor of a Utility under a current franchise agreement with the
City of LaPorte. The fee, or fee agreement, required of the Applicant will
be the minimum necessary for the City to comply with all provisions of
the current franchise agreement including Favored Nations clauses and/or
other franchise agreement provisions that prohibit the City from placing
the franchised Utility at a competitive disadvantage with a non -franchised
competitor.
Sec. 62-109. Preconstruction Meeting Requirements.
A preconstruction meeting with the project representative employed by the Utility owner,
the Utility's contractor and the City may be required by the Director for large utility projects or
projects involving non -typical construction methods or where there is especially critical public
infrastructure located within the project limits.
Sec. 62-110. Minimum Depth, Clearances of Utility Pipes Near City -Owned Utilities.
Buried new Facilities shall be constructed to a minimum depth of 24 -inches below the
road or sidewalk subbase or any greater depth as required by state and federal codes and
standards. The Director may also require a reasonable depth greater than 24 -inches, and when
doing so, will state the required depth and the justification for the greater depth on the approved
permit or plan.
Installation of new Facilities shall not interfere with City utilities. Facilities shall not be
located within 24 -inches vertically, and for construction parallel to City utilities, 6 -feet
horizontally. Where this cannot reasonably be accomplished because of insufficient
easement/right-of-way area, the Director may permit lesser distance(s) that will also sufficiently
protect the existing public infrastructure in the reasonable opinion of the Director.
Installation of new Facilities shall cross existing public streets and utilities as closely to a
90 -degree angle as reasonably practical.
Sec. 62-111. Minimum Clearances of Aerial Facilities Above Ground and Adjacent to
Luminaire and Traffic Signal Facilities.
Minimum height above ground shall be 16 -feet for an aerial facility proposed to be
constructed over a Street surface after the effective date of this ordinance. The minimum height
above ground for all other aerial Facilities shall be 13 -feet. Minimum clearance of aerial power
or electrical ground wires with respect to street lighting and/or traffic signal poles shall be 8 -feet
or the more restrictive standard required by the National Electrical Safety Code in effect at the
time of installation.
Sec. 62-112. Temporary Relocation of Facilities.
The Utility, on the written request of any person, shall remove or raise or lower its wires
temporarily to permit the construction of work in the vicinity thereof or to permit the moving of
vessels, houses or other bulky structures. The expense of such temporary removal, raising, or
lowering of wires shall by paid by the benefited party or parties, and the Utility may require such
payment in advance, being without obligation to remove, raise, or lower its wires until such
payment has been made. The Utility shall be given adequate, and in no event less than forty-
eight (48) hours advance notice to arrange for such temporary wire changes.
Sec. 62-113. Work Hours.
Regular working hours for construction activities within the rights-of-way are 7:00 a.m. to
6:00 p.m., Monday through Friday. Non -Emergency work may be performed by a Utility
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operating under a franchise with the City outside regular working hours when reasonably
required to minimize the impact on traffic, for the convenience of the general public or to
prevent an economic hardship for a resident or business located in the City. Non -emergency
work proposed to be performed outside of the regular working hours by a non -franchised Utility
must be approved by the Director. The Director may further restrict work hours where there are
public convenience and/or safety concerns such as lane closures in a high traffic or high accident
area, or along school student drop-off/pick-up areas.
Sec. 62-114. Confidentiality.
All applications accepted for filing shall be made available by the City for public
inspection. However, if plans of record submitted in an application include information
expressly designated by the Applicant as a trade secret or other confidential information
protected from disclosure by state law, the Director may not disclose that information to the
public without the consent of the Applicant, unless otherwise compelled by an opinion of the
Attorney General of the State of Texas pursuant to the Texas Open Records Act, as amended, or
by a court having jurisdiction of the matter pursuant to applicable law. This subsection may not
be construed to authorize an Applicant to designate all matters in its application as confidential
or as trade secrets. If the City receives a request pursuant to the Texas Open Records Act for
information designated as a trade secret or confidential information by the Applicant, the City
will promptly notify the Applicant of such request. If deemed appropriate and necessary by the
City, the City will request an opinion from the Texas Attorney General as to whether the
requested information may be withheld. The Applicant shall be responsible for supporting its
claim of confidentiality.
Sec. 62-115. Impairing of Drainage -Generally.
It shall be unlawful for any Person to willfully fill a drainage ditch, culvert or gutter along,
or under a street or in any manner to obstruct the free or natural flow of water along or through
such ditch, culvert or gutter.
It shall also be unlawful for any Person in laying down or repairing water, gas, sewer or
other service pipes, to leave any street, alley, drainage ditch or gutter in such condition as to
impair the drainage of the street, alley, drainage ditch or gutter at any time.
Sec. 62-116. Public Improvements.
(a) Whenever it shall be deemed necessary by city council to extend, construct,
maintain, repair or reconstruct public infrastructure for Public Works Projects including, but not
limited to, street and sidewalk grading and construction, traffic control devices, water, sewer and
drainage ways for the general preservation and protection of the health, safety and welfare of the
public with the Utility's Facilities to be relocated at no expense to the City except that the City
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shall bear the costs of all relocations of street lighting and other Facilities that were installed only
for the purpose of providing direct service to City facilities. .
(b) The Utility is responsible for verifying the location, both horizontal and vertical,
of all Facilities affected by the design of proposed public infrastructure improvements.
Sec. 62-117. Appeals.
Appeals of a decision by the Director or his designee related to denial, suspension, or
revocation of a permit may be filed with the City Manager within seven (7) working days of the
decision. The appeal shall specifically state the basis for the aggrieved party's challenge to the
City's authority under this Ordinance.
Sec. 62-118. Criminal Prosecution.
(a) Any violation or failure to abide by, and comply with, any provision or requirement of
this article shall be a criminal offense and shall be punished as a class C misdemeanor, subject to
a fine of $500.00 per occurrence, unless otherwise provided by state law.
(b) 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.
(c) Prosecution pursuant to this section is in addition to and does not supplant other
remedies.
Sec. 62-119. Civil Penalties.
(a) Civil penalties may be imposed for the violation of any provision of this article as follows:
(1) Up to $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
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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 2: All ordinances or parts of ordinances inconsistent with the terms of this ordinance are
hereby repealed; provided, however, that such repeal shall be only to the extent of such
inconsistency and in all other respects this ordinance shall be cumulative of other ordinances
regulating and governing the subject matter covered by this ordinance.
Section 3: Should any section or part of this ordinance be held unconstitutional, illegal, or
invalid, or the application to any person or circumstance for any reasons thereof ineffective or
inapplicable, such unconstitutionality, illegality, invalidity, or ineffectiveness of such section or
part shall in no way affect, impair or invalidate the remaining portions thereof, but as to such
remaining portion or portions, the same shall be and remain in full force and effect and to this
end the provisions of this ordinance are declared to be severable.
Section 4. Any person, as defined in Section 1.07 (27), Texas Penal Code, who shall violate any
provision of this ordinance as codified in the Code of Ordinances herein, shall be deemed guilty
of a misdemeanor and upon conviction shall be punished by a fine not to exceed FIVE
HUNDRED DOLLARS ($500.00).
Section 5. The City Council officially finds, determines, recites and declares that a sufficient
written notice of the date, hour, place and subject of this meeting of the City Council is posted at
a place convenient to the public at the City Hall of the city for the time required by law
preceding this meeting, as required by Chapter 551, Texas Local Government Code; and that this
meeting has been open to the public as required by law at all times during which this ordinance
and the subject matter thereof has been discussed, considered and formally acted upon. The City
Council further ratifies, approves and confirms such written notice and the contents and posting
thereof.
Section 6. This Ordinance shall be effective sixty (60) days after its passage and approval. The
City Secretary shall give notice of the passage of this ordinance by causing the caption hereof to
be published in the official newspaper of the City of La Porte at least once within ten (10) days
after the passage of this ordinance, in accordance with the provisions of Chapter 52, Texas Local
Government Code, and the City of La Porte Charter.
PASSED AND APPROVED this theA
CI1
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ATTEST:
OR
/ ► =1 iii
Assistant City Attorney
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