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HomeMy WebLinkAbout032420 ORD - 04/27/2021Ordinance amending the Code of Ordinances, Chapter 49, to promote better management of the public rights-of-way for Bond and other infrastructure projects, adding Article VIII - Management of Rights -of -Way to clarify responsibilities for all types of utilities within a public right-of-way, and establishing a penalty. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. City Code of Ordinances, Chapter 49 Streets and Sidewalks is revised to amend Article III Cuts and Excavations to. "ARTICLE III. — CUTS AND EXCAVATIONS Sec. 49-39-2. — Definitions Owner means a person, company, partnership, agency or other public or private entity, including the city, who is the owner or will, following the completion of the installation, become the owner of any facility that is installed or is proposed to be installed or maintained in the public way. Right-of-way or public right-of-way or public way means the surface of, and the space above and below, any street, road, highway, freeway, lane, path, trail, drainage way, channel, bridge, tunnel, fee interest, public way or place, sidewalk, alley, boulevard, parkway, drive, or other easement now or hereafter held by the city or over which the city exercises any rights of management or control and shall include but not be limited to all easements now held, or hereafter held, by the city but shall specifically cxclude privatc property. The public right-of-way includes the entire area between the boundary lines of every right-of-way. Sec. 49-43. Removal or relocation of facilities. All permittccs owners who place facilities in public right-of-way thereby obligate and bind themselves to move or change the location of facilities whenever required or instructed to do so by the city in order to accommodate the construction, repair, or relocation of city infrastructure facilities in accordance with Article VIII of this chapter and failure to do so shall be unlawful. engineer. 0312420 SCANNED SECTION 2. City Code of Ordinances, Chapter 49 Streets and Sidewalks is revised to add Article VIII Management of Rights -of -Way to add policies and procedures for certificated telecommunications providers and other private utilities occupying public rights-of-way of the City. "ARTICLE VIII. — MANAGEMENT OF RIGHTS-OF-WAY. Sec. 49-102. — Purpose. The purpose of this article is to manage the public right-of-way, to ensure public health, safety and welfare and to promote the most efficient use of the right-of-way. The primary purpose of public right-of-way is for public access and the distribution of water, wastewater and stormwater services, and secondarily for private utility uses. Sec. 49-103. — Definitions. As used in this article, the following terms shall have the meanings ascribed in this section: Director means the Director of Engineering Services or designee. Facility means any structure, device or other thing whatsoever that is installed or maintained along, across, in, on, within, over, above or under a public right-of-way. Owner means a person, company, partnership, agency or other public or private entity who owns, controls, manages or occupies any facility that is installed or maintained in the public way. The term Owner includes permitees, licensees, franchisees, certificated telecommunication utilities and other entities utilizing facilities in public rights- of-way. Public right-of-way means the surface of, and the space above and below any street, road, avenue, alley, highway, public thoroughfare, bridge, tunnel, sidewalk, path, trail, channel, drainage ditch, public utility easement or other easement now or hereafter held by the city or over which the city exercises any rights of management or control within the present limits of the city and within said limits as may be extended. The public right- of-way includes the entire area between the boundary lines of every right-of-way. Public works project means any construction, reconstruction, improvement, repair or maintenance project undertaken by or on behalf of the City, including but not limited to projects included on the City's capital improvement plan regardless of source of funding. Relocate means to move, remove, alter or replace a facility. Sec. 49-104. — Registry of facilities and owners. The Owner of any facility as defined in this article, other than a pipeline that is subject to the provisions of Article VII of this chapter, shall provide to the Director, and thereafter maintain, current (1) contact information indicating the name, address, phone 2 and email of the Owner of the facility and a designated contact person; and (2) information describing and locating any facilities of the Owner in the public right-of-way. If an Owner does not have contact information on file, the Owner shall provide the contact information at the time application is made for an excavation permit pursuant to Article III of this chapter. It shall be unlawful for any Owner to fail to provide or maintain all current information as required by this section. Sec. 49-105. — As -built maps and records The Owner shall maintain accurate maps and other appropriate records of its facilities and equipment as facilities are actually constructed in the Public right-of-way, including the use of Auto CAD/GIS digital format. If requested by Director, Owner shall provide Director with the as -built maps and records within 30 days. Sec. 49-106. — Relocation required. (a) If the city engineer determines that a facility must be relocated for the accomplishment of a public works project, the Owner shall relocate the facility at the Owner's sole expense in accordance with this article. If an Owner's failure to timely relocate a facility causes the city to incur expenses, damages or losses, including loss of grant funds, the Owner shall be responsible for the city's expenses, damages or losses. (b) The city shall not be obligated to design a public works project to avoid facility relocation. (c) Notice provided by the City under this article is not a condition precedent to the city's exercise of its rights and remedies under this article nor to the facility Owner's obligations hereunder. Sec. 49-107. — Planning and design of public works projects. (a) Owners shall review the city's latest adopted capital improvement plan in October of every year to identify potential conflicts and coordination of facility relocations. The capital improvement plan is available on the City website or from the city secretary. (b) During the design of a public works project, the Director will provide notice to the Owner's representative at the email address on file with the City pursuant to section 49-104 of this Code. Owner shall review the design, identify potential conflicts and provide the Director with detailed drawings that accurately depict its facilities to enable the Owner and Director to discuss potential design alternatives that could avoid facility relocation. Failure of an Owner to request design alternatives within 30 business days after Director sends the notice shall waive any objection the Owner may have to the design of the public works project. Sec. 49-108. — Director's final determination and notice. 3 (a) The Director may determine before completion of the final design that a facility requires relocation to accomplish the public works project and will provide notice thereof to the Owner of such facility required to be relocated. The notice will be provided to the Owner's representative at the contact information on file with the city pursuant to section 49-104 of this Code. (b) The Director will give notice to the Owner of the necessity for relocation if the Director discovers after award of a construction contract for a public works project: (1) That a facility located in the public right-of-way requires relocation if it was not previously known to the Director; or (2) That inaccurate information about the location of the facility was provided and relocation is required which was not previously anticipated. (c) Owner may submit a written request to the Director to make design changes to the public works project to avoid the conflict. Owner shall provide additional information if required by the Director. Owner shall pay for the cost of any redesign if the request is approved by the Director. Owner shall pay any additional costs incurred by City due to delay caused by the redesign. Sec. 49-109. — Relocation schedule. (a) Facilities discovered during planning and design for which notice is provided under Sec. 49-108(a). (1) The Owner shall submit a proposed schedule for relocation of its facility to the Director within 45 days of the date of the notice sent from the Director pursuant to Sec 49-108(a). For good cause, the Director may extend the time for submission or re -submission of a relocation schedule for a time period not to exceed an additional 30 days. (2) The schedule shall provide a period for relocation of no longer than 120 days. However, for good cause shown by Owner and with Director's written approval, Owner may extend the period of time for relocation. Relocation shall commence on the date agreed to by the Director and Owner, but no later than the date of the notice to proceed with construction of the public works project, unless extended by the Director for good cause shown by the Owner. (3) It shall be unlawful for an Owner to fail to provide a relocation schedule to the Director that complies with this ordinance within 45 days of the date of the notice sent from the Director pursuant to Sec 49-108(a). It shall be an affirmative defense that an extension was granted in writing 4 by the Director. City shall be authorized to assess damages for project delay. (b) Facilities discovered after award of a construction contract for which notice is provided under Sec 49-108(b). (1) The Owner shall submit a proposed schedule to the Director within five business days of the date of notice sent from the Director pursuant to Sec 49-108(b) and shall diligently prosecute the relocation of such facility until completed. (2) The schedule shall provide for a period of relocation of no longer than 30 days without Director's written approval, who for good cause shown by the Owner, may extend the period of time for relocation by an additional 30 days. Relocation shall commence 10 business days from the date of Director's notice sent pursuant to section 49-108(b). (3) It shall be unlawful for an Owner to fail to provide a relocation schedule to the Director that complies with this ordinance within five business days of the date of the notice sent from the Director pursuant to Sec 49- 108(b). City shall be authorized to assess damages for project delay. (c) In determining "good cause" as used in this article, the Director may consider such factors, not attributable to any fault or negligence of the Owner, including but not limited to the following: (1) Availability of materials or supplies required for relocation; (2) Any loss or damage to the public or users of the facility to be relocated; (3) Availability of any alternative means of providing to the public or other users the services of the facility to be relocated; or (4) Delays due to inclement weather occurring during the construction period. (d) It shall be unlawful for an Owner to fail to comply with the relocation schedule submitted to the Director pursuant to this section. City shall be authorized to assess damages for project delay. Sec. 49-110. — Abandoned facilities; removal authorized. (a) Owner of a facility located in the public right-of-way shall remove the facility and related equipment when such facility is abandoned as defined in section 49-39-2, regardless of whether it receives notice from the city. Removal must comply with Chapter 49, Article III. If, in the judgment of the Director, 5 removal of underground facilities would cause damage, this requirement may be waived by the Director in writing. (b) Owner must remove all abandoned facilities within the earlier of 90 days of it being abandoned or upon issuance of written notice by the Director. If the facilities are not removed after the 90 day notice to remove, the City may remove the facilities 30 days after notice of a final finding of abandonment. (c) When the Owner of a facility removes or abandons permanent structures in the public right-of-way, the Owner shall notify the Director in writing of such removal and shall file with the Director the location and description of the abandoned facilities. The Director may require the Owner to complete additional remedial measures necessary for public safety, health, welfare and the integrity of the public right-of-way. (d) Director may deem a facility to be abandoned and send notice of a final finding of abandonment to the Owner if: (1) An Owner does not provide a relocation schedule to the Director that complies with this article within 45 days from the date of the Director's notice to the Owner pursuant to subsection 49-108(a) or within five business days from the date of the Director's notice pursuant to subsection 49-108(b), or any extension approved by the Director; (2) An Owner does not comply with the terms of a relocation schedule, and the unfinished relocation of the facility will delay completion of a public works project; (3) An Owner does not relocate facilities as required by this Article; (4) An Owner fails to maintain current registration as required by section 49- 104: or (5) An Owner cannot be found or contacted. (e) Failure of an Owner to comply with this Article shall constitute a waiver by the Owner of any claim for damages against the city, and further constitute authorization for the city to assess damages, including removal costs, expenses or losses for project delay. The Director's certification of the cost of removal of any facility shall constitute prima facie evidence of the reasonableness of the costs chargeable to the Owner." Sec. 49-111. — Violations. (a) It shall be unlawful for an Owner to: 6 (1) Fail to register a facility or maintain current registration information about such facility as required by this article. (2) Fail to submit a relocation schedule as required by this article. (3) Fail to comply with a relocation schedule as required by this article. (4) Fail to relocate a facility as required by this chapter. (5) Fail to remove abandoned facilities as required by this article. (b) Each day that any violation of this article continues constitutes a separate offense. (c) A violation under this article is a Class C misdemeanor. Any person that violates any provision of this article shall be subject to a fine of not more than $500 per violation per day. The culpable mental state required by V.T.C.A., Penal Code 6.02 is specifically negated and dispensed with and a violation of this article is a strict liability offense. (d) An individual is criminally responsible for conduct that the individual performs in the name of or on behalf of a corporation, an association, a limited liability company, a partnership or another business entity to the same extent as if the conduct were performed in the individual's own name or behalf. (e) An agent having primary responsibility for the discharge of a duty to act imposed by law on a corporation, an association, a limited liability company or another business entity is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on the agent. (f) (g) If an individual is convicted of conduct constituting an offense performed in the name of or on behalf of a corporation, an association, a limited liability company or another business entity, the individual is subject to the sentence authorized by law for an individual convicted of the offense. Administrative, civil and criminal enforcement are alternative remedies that may be sought independently of each other. Criminal prosecution may occur regardless of pursuit of civil or administrative remedies and vice versa. SECTION 3. City Code of Ordinances, Chapter 55 Utilities is revised as follows to remove Article XIV Telephone Ordinance Agreement. "ARTICLE XIV. — RESERVED. ARTICLE XIV. TELEPHONE ORDINANCE AGREEMENT city shall remain as now constructed subject to such changes as under the limitation -s its—poles, wires, anchors, cables, manholes, conduits, plant and may be extended subject to the regulations, limitations and conditions herein prescribed. public areas in order to accommodate the installation, relocation, widening or may be dedicated, deeded or otherwise granted to the city, public ground or public 8 and the city agrees in good faith to consider the same. the submi'sion of information -describing the location, nature and estimated duration allcy or public place. This information shall be submitted prior to the activity except in company's installation of service or drop wires. relocated shall be set so that they shall not interfere with the flow of water in any gutter or drain and so that the same shall not interfere with ordinary travel on the street and so • intersections. The city herein reserves the right to require the telephone company to ground facilities to an underground location. Payment of the additional expense to install may be delegated. Sec. 55 172. Streets to be restored to good condition. good a condition as before the commencement of work to the satisfaction of the city 9 necessary to execute the work. Sec. 55 173. Temporary removal of wires. reasonable and advance notice to arrange for such temporary wire changes. Sec. 55 174. Tree trimming. ordered by the city, said trimming shall be done under the supervision and direction of total sum of money paid hereunder shall not in any event exceed the amount allowed by hercin to be a reasonable and necessary expense for rate making purposes, the city payments. The first four (4) payments shall be made on April 15, July 15, October 15 10 year. The telephone company shall file with the fifth payment to the city a financial the preceding calendar year. The term annual -gloss receipts shall mean all-rcien-ues exchange telephone services provided by the telephone company to its customers located within the corporate limits of the city as follows: aBusiness. b. Residence. c. Semipublic. d. Public announcement. c. Othcr business. f. Other residence. {2) Message charges Local exchange. a. Business. b. Residence. c. Public announcement. d.0 he usinesc. e. Other residence. {3) Public telephone Local exchange. a. Public sent paid. b. Semipublic sent paid. (1) Nonrecurring charges a',.ociated with local exchange access arrangements. a. Business. b. Residence. c. Semipublic. d. Public announcement. e. Other business. f. Other residence. Only the foregoing services provided by the telephone company shall be included within the definition of the term annual gross receipts for purposes of the cash consideration 11 exceptions. lieu of any imposition other than the usual general or special ad valorem taxes now or a,,emcnt or franchise take., aforesaid, then the city agrees that it will apply so much of or franchise taxes. Sec. 55 177. Duration of article; termination. This article shall be in force and effect from April 15, 1991, through April 14, 1992, to Sec. 55 178. Indemnity. consideration thereof, shall protect, indemnify and hold the city, its agents and whose act, omission, negligence or misconduct the telephone company is by law for its own negligence or the negligence or willful misconduct of any of its contractors, officials, agents or employees. This provision is not intended to create liability for the benefit of third parties but is solely for the benefit of the telephone company and the city. Sec. 55 179. No exclusive privilege. 12 exclusive privilege. Sec. 55 180. Successors and assigns. The rights, powers, limitations, duties and restrictions herein provided for shall inure to assig-ns, Sec. 55 181. Governing law; limitations. State of Texas; provided, however, should either party -desire to pursue any claim or regular businccs hours the company's accounts and records necessary to enforce this agreement. Secs. 55 182 55 189. Reserved. Secs. 55-170 — 55-189. — Reserved. 11 SECTION 4. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word or provision of this ordinance, for it is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision hereof be given full force and effect for its purpose. SECTION 5. Publication shall be made one time in the official publication of the City of Corpus Christi by publishing the caption stating the purpose of the ordinance. This ordinance to become effective upon such publication. SECTION 6. A violation of this ordinance, or requirements implemented under this ordinance, constitutes an offense punishable as provided in Section 1-6 of the Corpus Christi Code of Ordinances. That the i:oregoing ordinance was read for the first time and passed to its second reading on this the day of Ptp(`°,\ , 2021, by the following vote: 13 Paulette M. Guajardo Roland Barrera Gil Hernandez Michael Hunter Billy Lerma John Martinez Ben Molina f`k Mike Pusley P.* Greg Smith Gi That the foregoing ordinance was read for the second time and passed finally on this the 0 day of _ 2021, by the following vote: Paulette M. Guajardo Roland Barrera Gil Hernandez Michael Hunter Billy Lerma John Martinez Ben Molina Mike Pusley Greg Smith PASSED AND APPROVED on this the 4r—\\11\ day of NCA , 2021. ATTEST: Rebecca Huerta Paulette M. Guajardo City Secretary EFFECTIVE DATE 5-3-).\ 14 032420 Mayor , . . ... Caller Times PART OF THE USA TODAY NETWORK Certificate of Publication NOTICE OF PASSAGE OF ORDINANCE(S) CITY OF CORPUS CHRIS TI -SECRETARY NO. 032420, Ordinance amending the Code of Ordi- PO BOX 9277 nances, Chapter 49, to pro- mote better management of the public rights-of-way for CORPUS CHRISTI, TX 78401 Bond and other infrastruc- ture proiects, adding Arti- cle VIII - Management of Rights-of-Way to clarify re- sponsibilities for all types STATE OF WISCONSIN) of utilities within a public )) right-of-way, and establish- ing a penalty. This ordi- COUNTY OF BROWN) nance was passed and ap- proved on second reading by the Corpus Christi City I, being first duly sworn, upon oath depose and say that I Council on April 27,2021. am a legal clerk and employee of the publisher, namely,the /s/Rebecca Huerta City Secretary Corpus Christi Caller-Times, a daily newspaper published at Corpus Christi in said City and State,generally circulated in Aransas, Bee, Brooks, Duval,Jim Hogg,Jim Wells, Kleberg, Live Oak, Nueces, Refugio, and San Patricio, Counties,and that the publication of which the annexed is a true copy,was inserted in the Corpus Christi Caller-Times on the following dates: 05/03/2021 On this May 3, 2021, I certify that the attached document is a true and exact copy made by the publisher: 1 I LAA LU,I al Notice Cle• r Al411W iil Notary Public, State of Wis ,nsin, Count 1,f Brown 911. l^ ,o D 2 d Notary ExpiresXI lb O C) a z VICKY FELTY c Notary Public XI Z �' c7 State of Wisconsin 5- a r Publication Cost: $111.70 rj Z Ad No:0004713500 'tel Customer No: 1490432 PO#: 032420 #of Affidavits 1 This is not an invoice