State law reference–Municipal streets, alleys, etc., V.T.C.A., Transportation Code, ch. 311.

The purpose of this article is to:

1. Assist in the management of public rights-of-way in a nondiscriminatory and competitively neutral manner.
2. Govern the use and occupancy of the rights-of-way by certificated telecommunications providers, cable service providers, electric distribution systems, gas distribution systems, and all other persons expressly authorized by the village or state law to construct and maintain facilities in the public rights-of-way.
3. Assure that the village can continue to fairly and responsibly protect the public health, safety and welfare and effectively manage its rights-of-way as a vital public resource.

(Ordinance 2001-03-02, sec. I(A), adopted 3/5/01)

Whenever used in this article, the following terms, as well as their singular, plural, and possessive forms, shall have the following definitions and meanings, unless the context of the sentence in which they are used indicates otherwise:

Cable service means “cable service” as defined in the Cable Communications Policy Act of 1984, as amended, 47 U.S.C.A. section 522 et seq.

Certificated telecommunications provider or CTP means a person who has been issued a certificate of convenience and necessity, certificate of operating authority, or service provider certificate of operating authority by the public utility commission to offer local exchange telephone service.

District means any district or authority created by authority of either Texas Constitution, article III, section 2(b)(1)–(2) [52(b)(1)–(2)], or article XVI, section 59.

Facilities means any and all of the duct spaces, manholes, lines, wires, fibers, poles, conduits, underground and overhead passageways, and other equipment, structures, plant and appurtenances, and all associated transmission media, placed in, on, over or under the public rights-of-way, including wires, cables and pipelines.

Grantee means a person that the village has expressly granted the authority to use, occupy and construct facilities within the village’s public rights-of-way pursuant to a duly enacted franchise ordinance. The term also includes certificated telecommunications providers, districts, and water supply corporations.

Person means a natural person (an individual), corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company or association, cooperative, utility, public utility, retail public utility, district, water supply corporation, political subdivision and other such entity.

Public rights-of-way or rights-of-way means the area on, below, above or adjacent to a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement, in which the village has an interest. The term does not include the airwaves above a right-of-way with regard to wireless telecommunications.

Public utility means a public utility as that term is used in the Public Utility Regulatory Act of 1995, Texas Utilities Code, section 11.004, including municipally owned and/or operated utilities.

Telecommunications service means the rent, sale or lease of plant, equipment, facilities, or other property for the transmission of voice, data, image, graphics and other communications between or among points by wire, fiber optics, or other similar facilities, but does not include the provision to the public of any “wireless service,” as defined by law, and does not include long-distance transmissions (inter-LATA and intra-LATA toll transmissions).

Telecommunications utility means “telecommunications utility” as used in the Public Utility Regulatory Act of 1995, Texas Utilities Code, section 51.002(11).

Use and occupancy means installation, construction, reconstruction, maintenance, or repair of any facilities in, over, under, along, through or across the public rights-of-way for any purpose whatsoever.

Village council means the governing body (i.e., the city council or board of aldermen) of the village.

Water supply corporation means a nonprofit water supply or sewer service corporation created or operating under Texas Water Code chapter 67.

(Ordinance 2001-03-02, sec. I(B), adopted 3/5/01)

The village hereby recognizes that it has the legal duty to ensure that it will not create physical or economic barriers to any grantee attempting to enter the market, and to ensure that all village regulations are imposed in a competitively neutral manner. (Ordinance 2001-03-02, sec. I(C), adopted 3/5/01)

This article shall be construed in accordance with the other village ordinances in effect on the date of passage of this article and as may be amended from time to time to the extent that such ordinance is not in conflict with or in violation of the constitution and laws of the United States or the State of Texas. (Ordinance 2001-03-02, sec. I(D), adopted 3/5/01)

1. Generally. No person shall use, occupy or construct facilities in, upon, over or under the village’s public rights-of-way without first having applied for and received a franchise or other authorization, unless otherwise provided by law.
2. Exception for certificated telecommunications providers. Pursuant to Texas Local Government Code chapter 283, a CTP is not required to obtain a franchise. A CTP is subject to all other provisions of this article.

(Ordinance 2001-03-02, sec. II, adopted 3/5/01)

1. Registration required.
   1. No person shall use, maintain, operate, occupy or construct facilities in, upon, over, or under the village’s public rights-of-way without having registered with the village in accordance with the following provisions. In order to protect the public health, safety and welfare, all persons using or occupying the rights-of-way will register with the village. Registration will be issued in the name of the person who will own the facilities. Registration must be renewed every five (5) years. If a registration is not renewed, subject to 60-day notification to the owner, the facilities of the user will be deemed to have been abandoned.
   2. Persons possessing a current franchise issued by the village do not need to register under this section.
2. Required information.
   1. Registration shall be on a form prescribed by the village and shall include:
      1. The name of the user of the rights-of-way;
      2. The name, address and telephone number of the people who will be contact person(s) for the user;
      3. The name, address and telephone number of any and all contractors or subcontractors who will be working in the rights-of-way on behalf of the user;
      4. The name(s) and telephone number of an emergency contact who shall be available twenty-four (24) hours a day;
      5. Proof of insurance, as specified in section 10.02.007(b).
   2. When any information provided in the registration changes, the user shall inform the village of the change no more than thirty (30) days after the date the change is made.

(Ordinance 2001-03-02, sec. III, adopted 3/5/01)

1. Indemnity.
   1. The grantee shall, at its sole cost and expense, indemnify, defend and hold harmless the village, its officers, boards, commissions, agents and employees, against and from any and all claims, demands, causes of action, suits, proceedings, damages, liabilities and judgments of every kind arising out of or due to the grantee’s construction, maintenance, or operation of a system in the village, including but not limited to damages for injury or death or damages to property, real or personal, and against all liabilities to others and against all loss, cost and expense, resulting or arising out of any of the same.
   2. The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the municipality, its officers, employees, contractors, or subcontractors. If a grantee and the municipality are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state, without, however, waiving any governmental immunity available to the municipality under state or federal law and without waiving any defenses of the parties under state or federal law. This section is solely for the benefit of the municipality and the grantee and does not create or grant any rights, contractual or otherwise, to any other person or entity.
   3. The grantee or the village shall promptly advise the other in writing of any known claim or demand against the grantee or village related to or arising out of the grantee’s activities in public rights-of-way.
2. Grantee insurance.
   1. Each grantee shall secure and maintain the following liability insurance policies:
      1. General liability insurance with limits not less than:
         1. One million dollars ($1,000,000.00) primary; and
         2. One million dollars ($1,000,000.00) umbrella or other securities as acceptable to the mayor or his designee.
      2. Worker’s compensation for the grantee’s employees within statutory limits.
      The liability insurance policies required by this section shall be maintained by the grantee throughout the term during which the grantee is otherwise operating within public rights-of-way, or is engaged in the removal of its facilities.
   2. Such liability insurance shall be kept in full force and effect by the grantee during the existence of this franchise and thereafter for a period of not less than twelve (12) months.
   3. Unless otherwise precluded by law, the grantee may satisfy one or more of the insurance requirements specified in this section through self-insurance. In no event shall a self-insurance proposal be approved absent the village’s satisfaction that the grantee is in a sound financial condition, which shall be evidenced by a letter of self-insurance to be provided to the village.
3. Bonds.
   1. The mayor or the mayor’s designee may waive the requirement of a bond, if the grantee is able to demonstrate financial responsibility by having assets in excess of an amount determined appropriate by the village mayor. In the event the mayor determines a bond is required, due to insufficient assets or a demonstration that the grantee is not adequately or promptly fulfilling its responsibilities in the public rights-of-way, it shall meet the requirements of this section.
   2. To the extent not maintained by an affiliate, the grantee shall annually obtain, maintain and file with the village secretary a corporate surety bond with a surety company authorized to do business in the state, and found acceptable by the village attorney, in the amount of seventy-five thousand dollars ($75,000.00), or of the estimated amount of the value of work anticipated to be done in that year, whichever is greater, to guarantee the restoration of the rights-of-way in the event the grantee leaves a job site in the rights-of-way unfinished, incomplete or unsafe or unreasonably delays the completion of the construction. The grantee shall provide this corporate surety bond within thirty (30) days of the issuance of a permit under this article but prior to commencement of construction. Should a grantee without a bond in place leave a job site in the rights-of-way unfinished, incomplete or unsafe or unreasonably delay the completion of construction, the grantee will pay the actual cost of restoring the rights-of-way, plus an administrative fee to reimburse the village’s cost of overseeing any such restoration.
   3. The rights reserved to the village with respect to the bond are in addition to all other rights of the village, whether reserved by this article or authorized by law, and no action, proceeding or exercise of a right with respect to such bond shall affect any other right the village may have.
   4. The bond shall contain the following endorsement: “It is hereby understood and agreed that this bond may not be canceled by the surety nor any intention not to renew be exercised by the surety until sixty (60) days after the receipt by the village, by registered mail, of written notice of such intent.”
   5. Pursuant to Texas Water Code section 49.220, this subsection does not apply to districts and water supply corporations.
4. Assignment or transfer of business. The village requires the grantee to maintain current point of contact information and provide notice of a transfer or assignment of business ownership or control.
5. Notices.
   1. All notices to the village shall be in writing via certified mail, return receipt requested, to:
      
      Village Mayor
      Village of Point Venture
      555 Venture Blvd. S.
      Point Venture, Texas 78645
   2. All notices to a grantee shall be in writing via certified mail, return receipt requested, to the contact person and address provided by the grantee to the village. Notice shall be deemed effective when mailed to the most recent address provided by the grantee to the village.
   3. Any change in the address, telephone number or fax number of the grantee or the village shall be furnished to the other within a reasonable time.

(Ordinance 2001-03-02, sec. V, adopted 3/5/01)

1. The village may, at reasonable times but not more than once annually unless there is good cause, make inquiries pertaining to compliance with this article, and the grantee shall respond to such inquiries on a timely basis.
2. The village may establish, after reasonable notice, such rules and regulations as may be appropriate for the administration of this article in the construction of the grantee’s facilities on village property to the extent permitted by law.
3. The village shall have the right to lay, and permit to be laid, cable, electric, gas, water, wastewater, and other pipelines, cables, conduits or facilities and to do and permit to be done underground and overhead installation in, across, along, over or under any street, alley, highway, public right-of-way or public property occupied by the grantee and to change any curb or sidewalk or grade of any street.

(Ordinance 2001-03-02, sec. VI, adopted 3/5/01)

1. Civil and criminal penalties. The village shall have the power to administer and enforce the provisions of this article as may be required by governing law. Any person violating any provision of this article is subject to suit for injunctive relief as well as prosecution for criminal violations. Any violation of this article is hereby declared to be a nuisance.
2. Criminal prosecution. Any person violating any provision of this article shall, upon conviction, be fined a sum in accordance with the general penalty provided in section 1.01.009 of this code. Each day that a provision of this article is violated shall constitute a separate offense. An offense under this article is a misdemeanor.
3. Civil remedies. Nothing in this article shall be construed as a waiver of the village’s right to bring a civil action to enforce the provisions of this article and to seek remedies as allowed by law, including but not limited to the following:
   1. Injunctive relief to prevent specific conduct that violates this article or to require specific conduct that is necessary for compliance with this article;
   2. A civil penalty up to $1,000.00 a day when it is shown that the defendant was actually notified of the provisions of this article and after receiving notice committed acts in violation of this article or failed to take action necessary for compliance with this article; and
   3. Other available relief.

(Ordinance 2001-03-02, sec. VII, adopted 3/5/01; Ordinance adopting Code)

Should all or part of this article be inconsistent or conflict with a specific franchise ordinance adopted by the village, the two shall be read together to the extent possible; otherwise, specific provisions contained within the franchise ordinance shall govern as to that particular grantee. (Ordinance 2001-03-02, sec. VIII(B), adopted 3/5/01)

Grantees shall, at all times, be subject to the lawful exercise of the village’s police power and regulatory authority and such reasonable and authorized regulations as the village shall hereafter by resolution or ordinance provide. (Ordinance 2001-03-02, sec. VIII(C), adopted 3/5/01)

This article shall apply in newly annexed areas upon the date of annexation. (Ordinance 2001-03-02, sec. VIII(D), adopted 3/5/01)

1. No person shall excavate, construct, install, repair or maintain facilities in, upon, over or under the village’s public rights-of-way or affect traffic flow without first having applied for and received a non-exclusive rights-of-way construction permit from the village in accordance with the following provisions. Persons, including grantees, are required to obtain a rights-of-way construction permit prior to conducting land disturbing activities for any reason in the public rights-of-way.
2. A permit shall not be required for the installation of facilities necessary to initiate service to a customer’s property, or repair or maintenance of existing facilities unless such repair or maintenance requires the breaking of pavement, the closure of a nonresidential traffic lane, excavation or boring.
3. No permit shall be issued unless the grantee has a valid franchise, as provided by section 10.02.005, and the grantee is in full compliance with all terms of the franchise, including payment of any franchise fees.
4. No permit shall be issued unless the grantee has registered with the village, as provided by section 10.02.006.
5. The rights-of-way construction permits shall be available without charge and shall not be unreasonably delayed or withheld by the village.
6. On a form prescribed by the village, the grantee shall provide the following information in order to apply for a rights-of-way construction permit:
   1. The name of the grantee;
   2. The name, address and telephone number of the contact person(s) for the grantee;
   3. The name, address and telephone number of any and all contractors or subcontractors performing the work;
   4. A detailed description of the project, duration of the project, location of the desired work, erosion control plan, and proposal for lane closures, if any; and
   5. Proof of insurance and a surety bond, as specified in section 10.02.007(b) and (c).
7. A copy of the permit and engineering plans shall be maintained at the construction site and made available for inspection by the village at all times when construction or installation work is occurring.
8. If any of the provisions of this article are not followed, a permit may be revoked by the mayor or the mayor’s designee. If a person has not followed the terms and conditions of this article in work done pursuant to a prior permit, new permits may be denied or additional terms required.
9. Appeal from denial or revocation of permit or from the decision of the mayor or the mayor’s designee shall be to the village council. Appeal shall be filed with the village secretary within fifteen (15) calendar days from the date of the decision being appealed.

(Ordinance 2001-03-02, sec. IV(A), adopted 3/5/01; Ordinance adopting Code)

1. Underground facilities installed by the grantee in areas of new development in the village shall be under construction within sixty (60) days of a developer’s request and assurance that the site is ready for utility installation. The grantee shall maintain good faith efforts toward completion of the installation of facilities. Surface equipment may be installed at any time provided no excessive damage to infrastructure occurs.
2. Final or record plats of approved subdivisions may be obtained from the village. When any final or record plat has been signed by the property owner and approved by the village, a grantee may begin construction and installation of facilities in the utility easements as depicted in the final or record plat.
3. Pursuant to the laws of the state and this article, the grantee has the non-exclusive right and privilege to use and occupy the public rights-of-way in the village for the purpose of maintaining and operating its facilities subject to the terms, conditions, and stipulations set forth in this article, the constitution and laws of the United States and the state and the village’s ordinances to the extent such ordinances are not in conflict herewith.
4. The grantee’s facilities and transmission media used in or incident to the provision of services and to the maintenance of a business by the grantee in the village shall remain as now constructed, subject to such changes under the conditions prescribed in this article as may be considered necessary to protect the public health and safety, and such changes and extensions as may be considered necessary by the grantee in the pursuit of its business. The grantee shall at all times during the term of this article be subject to all lawful exercise of the police power by the village in the operation and maintenance of the public rights-of-way. The terms of this article shall apply throughout the village and shall apply to all of the grantee’s facilities.
5. The permitted working hours in the rights-of-way are 7:00 a.m. to 6:00 p.m., Monday through Friday. Work that needs to be performed after 6:00 p.m. Monday through Friday must be approved by the village in advance. Any work performed on Saturday must be approved twenty-four (24) hours in advance by the village. Directional boring is permitted only Monday through Friday, 7:00 a.m. to 6:00 p.m., unless approved in advance. No work will be done, except for emergencies, on Sundays or legal holidays, unless approved in advance.

(Ordinance 2001-03-02, sec. IV(B), adopted 3/5/01)

All facilities shall be constructed, installed and located in accordance with the following terms and conditions:

1. All telephone lines, cables, wires and pipelines in the village’s public rights-of-way are required by this article to be placed underground. Any and all of the grantee’s lines, cables, wires and pipes installed after the effective date of this article shall be buried. The grantee shall install its facilities within its existing underground duct or conduit whenever excess capacity exists within such facility. In areas of new construction and development within the village, the grantee shall install and occupy underground conduit or ducts.
2. The grantee shall use best efforts to install its facilities within its existing underground duct or conduit whenever excess capacity exists within such facility.
3. Grantees are hereby charged with the knowledge that the Point Venture Property Owners Association, Inc. (“the association”) has reconstructed roads and streets within the village for the past nine (9) years. Upon the request of the association, certain grantees have installed road crossing sleeves prior to reconstruction in an effort to reduce future road crossing cuts. The village will continue the program of reconstruction for the remaining approximately 9,000 linear feet of roadway yet to be improved in the village. Designated grantees intending to occupy the rights-of-way along these improved roadways shall be required to place road crossing sleeves in designated locations in order to lessen the likelihood of road cuts on the newly constructed roads.
4. In determining whether any requirement under this section is unreasonable or unfeasible, the village mayor or the mayor’s designee shall consider, among other things, whether the requirement would subject the grantee to an unreasonably increased risk of service interruption, to an unreasonably increased liability for accidents, to an unreasonable delay in construction or in the availability of its services, or to any other unreasonable technical or economic burden.

(Ordinance 2001-03-02, sec. IV(C), adopted 3/5/01)

The grantee, or any person acting on the grantee’s behalf, shall not take any action or permit any action to be done which may impair or damage any village property or other property located in, on or adjacent to the public rights-of-way. Nothing in this article relieves a grantee, the municipality, or any other person or entity from its obligations to obtain locates of underground facilities before excavation as required by the Underground Facility Damage Prevention and Safety Act, Texas Utilities Code, section 251.001 et seq. (Vernon Supp. 1999). (Ordinance 2001-03-02, sec. IV(D), adopted 3/5/01)

The grantee, or any person acting on the grantee’s behalf, shall not commence any work in or about village property or public rights-of-way without providing seven (7) days’ advance notice to the village. If an emergency exists which makes advance notification impossible, the grantee may begin that response or repair work, or take any action required under the circumstances, provided that notice to the village is given as promptly as possible after beginning the work, and the grantee acquires any approval required by village ordinances applicable to emergency response work. (Ordinance 2001-03-02, sec. IV(E), adopted 3/5/01)

The grantee shall maintain its facilities in good and safe conditions and in a manner that complies with all applicable laws. (Ordinance 2001-03-02, sec. IV(F), adopted 3/5/01)

1. The grantee may not locate or maintain its facilities so as to unreasonably interfere with the use of village property or public rights-of-way by the village or by other persons authorized to use or be present in or upon village property or public rights-of-way. In the event of unreasonable interference to village property or public rights-of-way, such facilities shall be moved by the grantee, temporarily or permanently, as determined by the village mayor or the mayor’s designee upon reasonable notice. If the temporary removal of the grantee’s aerial facilities is necessary to permit the moving of houses or other bulky structures, the grantee shall be required to temporarily remove the same upon not less than twenty (20) days’ advance notice by a party permitted to move a building, house or other bulky structure. Upon a showing that twenty (20) days does not afford a grantee adequate time to arrange removal of facilities, the parties shall agree upon a schedule which shall not unreasonably delay the moving of houses or other bulky structures. The expenses of such temporary relocation or removal of aerial facilities shall be paid in advance by the party or parties requesting and benefiting from such temporary relocation or removal.
2. Within ninety (90) days following written notice from the village, or a mutually agreed upon time frame, the grantee shall, without claim for reimbursement or damages against the village, temporarily or permanently remove, relocate, change or alter the position of any facilities on village property or within the public rights-of-way whenever village officials determine that such removal, relocation, change or alteration is reasonably required for the widening or straightening of streets.
3. In any instance in which operation of subsection (a) of this section is deemed by the grantee to impose a significant financial hardship, the grantee shall have the right to present alternative proposals to the village, and the village shall give due consideration to any such alternative proposals.
4. If, after proper notice, the grantee fails or refuses to remove or abate the facilities in question, the village retains the rights and privilege to remove or abate any such utility facilities, at the sole cost and expense of the grantee. In performing or permitting such work to be done, the village shall not be liable to any carrier or any grantee for any damages to any utility facilities unless directly and proximately caused by the willful, intentional or malicious act by the village, and shall not be liable in any event for any consequential damages relating to service interruptions.

(Ordinance 2001-03-02, sec. IV(G), adopted 3/5/01)

The village retains the right and privilege to cut or move any facilities located on village property or within the public rights-of-way that the village may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The village shall cooperate to the extent possible with the grantee in such instances to assure continuity of service, and to afford the grantee the opportunity to make such relocation and/or removal itself where deemed reasonable, at the village’s sole discretion. The village shall use all reasonable means to minimize the disruption of service. (Ordinance 2001-03-02, sec. IV(H), adopted 3/5/01)

1. When the grantee, or any person acting on its behalf, does any work in or affecting any public rights-of-way or village property, it shall, at its own expense, promptly remove any obstructions and restore such public rights-of-way or village property to as good a condition as existed before the work was undertaken, including the compaction of all trench fill material in accordance with applicable regional standards. Soil testing shall be undertaken at all street crossings and as requested by village inspectors, and as is required of all other users of the public rights-of-way.
2. The grantee shall replace and properly re-lay and repair the surface, base, irrigation system and landscape treatment of any public rights-of-way that may be excavated or damaged by reason of the erection, construction, maintenance, or repair of the grantee’s facilities within thirty (30) calendar days after completion of the work in accordance with existing standards of the village in effect at the time of the work.
3. If weather or other conditions do not permit the complete restoration required by this section, the grantee shall temporarily restore the affected rights-of-way or property. Such temporary restoration shall be at the grantee’s sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
4. The grantee shall contain all sediment within the work area using erosion control measures and erosion-limiting construction techniques. The grantee shall submit a construction erosion control plan with all permit applications. All construction materials shall be cleared from rights-of-way by the end of every business day. A waiver may be granted for this requirement.
5. The grantee or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such rights-of-way or property.

(Ordinance 2001-03-02, sec. IV(I), adopted 3/5/01)

1. Within sixty (60) days of completion of each new permitted section of a grantee’s facilities, the grantee shall supply the village with a complete set of “as built” plans of record for the new permitted section in a format used in the ordinary course of business of the grantee’s business, to the extent they are prepared in the ordinary course of business, but excluding customer specific, proprietary or confidential information and as reasonably prescribed by the village, and as allowed by law. The village may, at its discretion, accept any reasonable alternative to “as built” plans of record which provides adequate information as to the location of facilities in the public rights-of-way.
2. The grantee shall maintain maps of all of the grantee’s facilities located on village property or within the public rights-of-way and shall promptly locate its facilities at the village’s request.

(Ordinance 2001-03-02, sec. IV(J), adopted 3/5/01)

Within twenty (20) days of a written request from the village mayor or the mayor’s representatives, the grantee shall furnish the village with information directly related to the grantee’s use, occupancy or construction within or upon public rights-of-way and as otherwise required by state law to be furnished to the village. (Ordinance 2001-03-02, sec. IV(K), adopted 3/5/01)