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
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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.
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(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
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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,
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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:
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(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
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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
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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.
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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.
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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-).\
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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•
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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
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State of Wisconsin 5- a
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Publication Cost: $111.70 rj Z
Ad No:0004713500 'tel
Customer No: 1490432
PO#: 032420
#of Affidavits 1
This is not an invoice