chapter 40 streets and sidewalks · chapter 40 streets and sidewalks houston, texas, code of...

- CODE OF ORDINANCES

Chapter 40 STREETS AND SIDEWALKS

Houston, Texas, Code of Ordinances

Chapter 40 STREETS AND SIDEWALKS [1]

ARTICLE I. - IN GENERAL

ARTICLE II. - PRIVATE STREET WORK IN GENERAL

ARTICLE III. - CONSTRUCTION OR REPAIR OF SIDEWALKS, DRIVEWAYS, CURBS AND GUTTERS

ARTICLE IV. - STREET OILING PERMIT

ARTICLE V. - EXCAVATION IN PUBLIC WAY

ARTICLE VI. - TRANSPORTATION OF EARTH MATERIALS ON STREETS AND ALLEYS

ARTICLE VII. - INSPECTION PERMIT FOR CERTAIN STRUCTURES IN PUBLIC RIGHT-OF-WAY

ARTICLE VIII. - BUS SHELTERS

ARTICLE IX. - PIPELINES, CONDUITS, ETC., ACROSS, ALONG OR UNDER STREETS

ARTICLE X. - PAVING ASSESSMENTS

ARTICLE XI. - SIDEWALK SALES AND PERFORMANCES

ARTICLE XII. - MONITORING WELLS AND ENVIRONMENTAL TEST BORING FACILITIES

ARTICLE XIII. - SPECIAL RACING EVENTS

ARTICLE XIV. - GRANT OF PRIVILEGES TO TELECOMMUNICATIONS PROVIDERS TO PLACE

TELECOMMUNICATIONS FACILITIES ACROSS, ALONG OR UNDER PUBLIC WAYS

ARTICLE XV. - ALLEYS

ARTICLE XVI. - SITTING AND LYING UPON PUBLIC SIDEWALKS

ARTICLE XVII. - SIDEWALK AND ROADWAY OBSTRUCTIONS AND IMPAIRMENTS

ARTICLE XVIII. - RELOCATION OF PRIVATELY-OWNED FACILITIES

ARTICLE XIX. - THE SALE OF USED MOTOR VEHICLES AT CERTAIN LOCATIONS

ARTICLE XX. - NEWSRACKS

FOOTNOTE(S):


Chapter 40 STREETS AND SIDEWALKS


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Cross reference— Driving livestock through streets, § 6-9; house moving, § 10-48 et seq.; house numbering, § 10-211 et seq.; The Houston International Festival, § 12-81 et seq.; posting advertising matter on curbs, sidewalks, etc., § 28-39; streets in manufactured home parks, § 29-93; walks in manufactured home parks, § 29-94; authority of director of parks and recreation relative to trees on public property, § 32-6; public utilities generally, Ch. 37; railroads, Ch. 38; solid wastes and litter control, Ch. 39; withholding city improvements until plat approval, § 41-6; compliance with subdivision ordinances as prerequisite to city working on streets, § 41-7; pavement assessment lien releases, § 44-20; traffic, Ch. 45; erection of detour or barricade signs, § 45-18; parades and processions, § 45-231 et seq.; vehicles for hire, Ch. 46; transportation of waste, § 47-241 et seq. (Back)


Chapter 40 - STREETS AND SIDEWALKS

ARTICLE I. IN GENERAL



Sec 40-1. Reserved.

Sec. 40-2. Survey of sidewalks and fixing of bounds and limits.

Sec. 40-3. Installation of street lights at expense of property owners.

Sec. 40-4. Maps and notice of abandonment.

Sec. 40-5. Minimum depth.

Sec. 40-6. Pipes, conduits, etc., to be laid prior to paving.

Sec. 40-7. Subdivision identification markers.

Sec. 40-8. Sale of goods on streets or sidewalks.

Sec. 40-9. Sale of frozen desserts from vehicles.

Sec. 40-9.1. Sale of frozen desserts from push carts.

Sec. 40-10. Reserved.

Sec. 40-10.1. Sidewalk cafés.


Sec. 40-12. Sidewalk access doors.


Sec. 40-14. Clearance of tree limbs over sidewalks.

Sec. 40-15. Banners and signs prohibited over or across streets.

Sec. 40-16. Painting or posting house numbers on curbs.

Sec. 40-17. Tearing up, injuring, defacing, etc.—Streets.

Sec. 40-18. Same—Sidewalks.

Sec. 40-19. Removing or defacing street line marks or street name signs.

Sec. 40-20. Removal of street construction materials.

Sec. 40-21. Mixing mortar or cement on streets.

Sec. 40-22. Moving vehicles which drop or throw mud or clay on streets.

Sec. 40-23. Use of unguarded welding apparatus near street or sidewalk.

Sec. 40-24. Allowing water to run into or upon streets or sidewalks.

Sec. 40-25. Throwing articles on streets or sidewalks from roofs or upper stories.

Sec. 40-26. Dropping window cleaners' tools on sidewalk.



Sec. 40-29. Police and fire departments to be notified of street closing.

Sec. 40-30. Banner districts; creation; decorative banners permitted.

Sec. 40-31. Special event banners.

Secs. 40-32—40-40. Reserved.





Sec 40-1. Reserved.

Editor's note—

Ord. No. 99-379, § 2, adopted April 21, 1999, repealed § 40-1 in its entirety. Formerly, said section pertained to council consent required for street improvements and derived from Code 1968, § 41-1. See the Code Comparative Table.

Sec. 40-2. Survey of sidewalks and fixing of bounds and limits.

It shall be the duty of the city engineer to survey and lay out the several sidewalks along the several streets of the city, and fix the bounds and limits between the sidewalks and the streets.

(Code 1968, § 41-2; Ord. No. 90-635, § 96, 5-23-90)

Sec. 40-3. Installation of street lights at expense of property owners.

(a) Where lighting is requested other than that which is scheduled for installation by the city, the mayor is hereby authorized to approve, upon the recommendation of the department of public works and engineering, the installation of ornamental standard type street lights in residential areas when a contribution is made to the city by the property owners of an amount of money sufficient to pay the operation cost of the lights for a period of one year. This section shall also be applicable for ornamental standard type lighting on nonresidential streets where lighting is requested prior to the time it is scheduled by the city. The mayor may delegate such authority to persons named in a written delegation notice signed by the mayor and filed with the city secretary, subject to revocation at any time.

(b) The contributions made to the city whenever ornamental street lights are to be installed shall be in an amount calculated by the department of public works and engineering to represent the operating cost of the street lights for one year. The contribution collected shall be deposited in a special revenue account which is hereby established. The monies collected in the special account shall be designated for street lighting use only. All notices of the amount of contribution due shall clearly state that any contribution not received within six months from the date of issuance by the department of public works and engineering shall be subject to increase.

(c) The foregoing requirement for a contribution by property owners shall not apply in the case of standard type ornamental street lights for which the installation charges, if any, plus the estimated operation cost for one year or more are to be paid for out of funds obtained through the Department of Housing and Urban Development of the United States of America as part of the Community Development Block Grant Program. The installation of such street lights may be approved by the mayor (or the mayor's designee) upon the determination by the director of public works and engineering that such funds are available and have been duly authorized to be expended for such purpose.

(Code 1968, § 41-4.1; Ord. No. 70-636, § 1, 5-5-70; Ord. No. 79-962, § 1, 6-14-79; Ord. No. 80-571, § 1, 3-18-80; Ord. No. 82-368, § 1, 3-8-82; Ord. No. 82-906, § 1, 6-1-82; Ord. No. 86-528, § 30, 4-22-86; Ord. No. 90-635, § 97, 5-23-90; Ord. No. 92-1009, § 1, 7-22-92; Ord. No. 93-514, § 67, 5-5-93)





Sec. 40-4. Maps and notice of abandonment.

(a) It is hereby made the duty of every person owning, using, controlling or having an interest in pipes, conduits, ducts or tunnels under the surface of any public street, alley, sidewalk or other public place for supplying or conveying gas, electricity, water, steam, ammonia or oil in, to or from the city, or to or from its inhabitants, or for any other purpose, to file in the office of the city engineer a map or a set of maps, each drawn to a scale of 200 feet to one inch, which map or set of maps shall be on tracing cloth to be furnished in sheets 15½ inches by 23 inches or even multiple thereof, or as may be required by the city engineer, with a border one and one-half inches on the left hand, and shall show in detail the exact location, size, description and date of installation, if known, of all holes, laterals and service pipes, and of all valves, pressure regulators, drips, manholes, handholes, transform chambers or other appliances installed beneath the surface of public streets, alleys, sidewalks or other public places in the city, belonging to, used by or under the control of such person or in which such person has an interest. It shall also be the duty of every person to file, within 15 days after the first day of January of each and every year, a corrected map or set of maps, each drawn to a scale of not less than 200 feet to one inch, showing the complete installation of all such pipes and other appliances, including all installations made during the previous year, to and including the last day of such year. Each such map shall be accompanied by an affidavit endorsed thereon, subscribed and sworn to by such person, or by a member of a firm, or by the president or secretary of a corporation, to the effect that the same correctly exhibits the details required by this section to be shown thereon.

(b) Whenever any pipe, conduit, duct, tunnel or other structure located under the surface of any public street, alley or other public place, or the use thereof, is abandoned, the person owning, using, controlling or having an interest therein shall, within 30 days after such abandonment, file in the office of the city engineer a statement in writing giving in detail the location of the pipe, conduit, duct, tunnel or other structure so abandoned. Each map or set of maps filed pursuant to the provisions of this section shall show in detail the location of all such pipes, conduits, ducts, tunnels or other structures abandoned subsequent to the filing of the last preceding map or set of maps.

(c) It shall be unlawful for any person to fail, refuse or neglect to file any map or set of maps at the time and in all respects as required by this section.

(Code 1968, § 41-5; Ord. No. 90-635, § 98, 5-23-90)

Sec. 40-5. Minimum depth.

It shall be unlawful for any person to install or cause or permit to be installed any service pipe or main pipe, conduit, duct, tunnel or other structure, or part thereof, except manholes, culverts and catch-basins, in any public street, alley, sidewalk or other public place at a depth of less than two feet below the established grade of the gutter of such public street, sidewalk, alley or other public place.

(Code 1968, § 41-6)

Sec. 40-6. Pipes, conduits, etc., to be laid prior to paving.

All pipes, conduits, tunnels and other structures in or under the surface of public streets, alleys and other public places, shall all be made and laid prior to the paving of such street, alley or public place.

(Code 1968, § 41-7)





Sec. 40-7. Subdivision identification markers.

(a) Definition. When used in this section, the term subdivision identification marker means a marker placed in the public right-of-way intended to identify a residential community or residential development with 50 or more platted single-family residential lots. The city engineer may issue a variance for subdivision identification markers for a residential community or residential development with less than 50 single-family residential lots.

(b) Encroachment permit required. A subdivision identification marker installed after December 31, 2008, in the median of a public street right-of-way or in unimproved excess public street right-of-way of a street within, abutting or adjacent to the subdivision must have an encroachment permit issued by the city engineer's office and shall not be subject to the requirements of the Houston Sign Code (Chapter 46 of the City of Houston Building Code).

(c) Design standards. A subdivision identification marker must contain the name of the recorded subdivision, and may contain an insignia or motto of the subdivision in addition to identification directly related to the residential community or development, such as 'deed restrictions enforced' and civic association/homeowner's association meeting announcements. A subdivision identification marker may not include any advertising content unrelated to the subdivision, and may not contain any moving, electronic, LED or other changeable message.

The design of the subdivision identification marker shall conform to the standards set forth in the Infrastructure Design Manual, as promulgated and revised from time to time by the public works and engineering department. The city engineer must approve each request for more than two subdivision identification markers in the public street right-of-way and may restrict the number of subdivision identification markers for a subdivision taking into account the number of lots in the subdivision, the number of major entrances to the subdivision, and the area (acreage) of the subdivision. The city engineer may establish minimum clearances for subdivision identification markers from the edge of the pavement. The city engineer may also specify acceptable foundations for subdivision identification markers in the public street right-of-way and may require frangible or breakaway marker supports. Variances to any design standards for proposed subdivision identification markers must be granted by the city engineer.

(d) Application for encroachment permit. A subdivision developer or homeowners' association may apply to the city engineer for an encroachment permit for subdivision identification markers. The application for subdivision identification markers must identify the person, partnership, association, corporation or other legal entity responsible for the perpetual maintenance of the marker and include a drawing, approved by the public works and engineering department, that shows the design, location, size, height, and material composition of all markers to be permitted, and the location of any utility (water, sanitary sewer, storm sewer, electricity, telephone, cable) facilities in the immediate vicinity of the markers. Each subdivision identification marker must be located so as not to constitute a traffic hazard and shall not be located within the visibility triangle, as defined in section 33-101 of this Code, or otherwise impair the visibility of a vehicle from a road or driveway. The application fees for subdivision identification markers to be located in the public street right-of-way shall be stated for this provision in the city fee schedule. All application fees shall be payable at the time of application for an encroachment permit.

(e) Issuance of encroachment permit. An encroachment permit for subdivision identification markers installed or to be installed in the public street right-of-way shall be issued by the city engineer on terms approved by the city engineer. A legal representative for the applicant shall be required to sign the offered encroachment permit to indicate acceptance of the terms and undertakings therein, whereupon the applicant shall then be the holder of the encroachment permit.

(f) Transfer of encroachment permit. An encroachment permit issued to a developer may be transferred to a homeowners' association upon approval of the city engineer following the submittal of an





instrument setting forth the undertaking of the homeowners' association to comply with all the terms of the encroachment permit and to assume all the obligations and responsibilities of the prior holder of the encroachment permit.

(g) Existing subdivision identification markers. Subdivision identification markers located within the public right-of-way on December 31, 2008, must be registered with the public works and engineering department. The public works and engineering department shall publish a form to register existing subdivision identification markers. No fees will be assessed for registration of existing subdivision identification markers.

(h) Maintenance, repair and replacement. As used in this subsection, the term holder refers to the holder of an encroachment permit for a subdivision identification marker and the registrant for an existing subdivision identification marker. The holder shall be, and the city shall not be, responsible for any and all maintenance, repair, and/or replacement for the subdivision identification marker, marker support, structure, illumination, and associated landscaping. The city may require the holder, upon 30-days written notice, to perform maintenance, repair, relocation, or removal of the subdivision identification marker, marker structure, and any associated landscaping. After expiration of the 30-day notice, the city may cause the maintenance, repair or removal of the subdivision identification marker at the expense of the holder. In the event that the city needs to perform improvements, maintenance, or repairs of infrastructure within the right-of-way, the city may, without providing 30-days written notice, cause the removal or alteration of the subdivision identification marker or marker structure and landscaping without repair, replacement, or compensation to the holder. In no circumstances shall the city be obligated to repair or replace a subdivision identification marker, or compensate the holder of the marker for any damage caused by the city or other parties.

(Ord. No. 08-1118, § 2, 12-3-08; Ord. No. 2011-1168, § 13, 12-14-2011; Ord. No. 2014-364, § 5, 4-30-2014)

Note—Formerly § 41-12

Sec. 40-8. Sale of goods on streets or sidewalks.

(a) It shall be unlawful for any person to expose for sale or to sell any foodstuffs of any nature, any liquids, or any other goods, wares, or merchandise, either exposed or enclosed in boxes, crates, barrels, baskets or any other container or any animals, on any sidewalk, street, parkway, esplanade or any other public property or any property dedicated to public use.

(b) It is an affirmative defense to prosecution under subsection (a) that the person is selling newspapers in full compliance with article XX of chapter 40 of this Code, that the person is operating a sidewalk café under a permit issued pursuant to section 40-10.1 of the Code, that the person is acting in compliance with a franchise granted by the city, or that the person is conducting a transaction in a public building or on public property in which transaction the city is a party, or that the person is selling food or non-food merchandise within the "theater/entertainment district" defined in section 40-261 of this Code pursuant to a permit issued under article XI of chapter 40 of this Code.

(c) Except within a "school crossing zone", it is a defense to prosecution under subsection (a) that the person is selling frozen desserts from a sanitary vehicle in full compliance with laws applicable thereto. For purposes of this section a "school crossing zone" means a reduced-speed zone that is designated on a street by ordinance to facilitate safe crossing of the street by children going to or leaving a public or private elementary school during the times that the reduced speed limit is applicable, provided that the school crossing zone is duly posted by reduced speed signage in accordance with the ordinance applicable to its creation.





(d) It shall be unlawful for any person to cause or aid a minor in conduct prohibited by this section or to provide foodstuffs, liquids or any other goods to a minor with knowledge that the minor intends to sell or offer for sale such goods in contravention of this section.

(e) No provision of section 40-9 or 40-9.1 of this Code shall be construed to authorize sale of frozen desserts in a school crossing zone.

(Code 1968, § 41-10; Ord. No. 69-1122, § 1, 6-25-69; Ord. No. 76-980, § 1, 6-30-76; Ord. No. 76-1191, § 1, 7-14-76; Ord. No. 84-1671, § 1, 10-23-84; Ord. No. 91-1168, § 2, 8-14-91; Ord. No. 97-1004, § 4, 8-20-97; Ord. No. 04-498, § 3, 5-26-04; Ord. No. 07-225, § 3, 2-14-07)

Cross reference— Exception to above section for the Houston Festival, § 12-85.

Sec. 40-9. Sale of frozen desserts from vehicles.

(a) A person may sell frozen desserts from sanitary vehicles approved and licensed by the health officer pursuant to this Code, and such other refrigerated vehicles from which are sold or dispensed frozen dessert products that are fully wrapped, enclosed and contained in individual wrappers or containers, provided that such vehicles shall be operated and maintained in full compliance with the health, food, drug and sanitary provisions of this Code and the applicable statutes of the state, and provided further that prior to making a sale or dispensing such frozen dessert products the driver of such vehicle shall drive to the side of the street, as close as practicable to the curb, and if there is no curb, then as close as practicable to the hedge of the paved portion or the edge of the portion used for vehicular traffic of said road, and the driver shall stop, stand or park such vehicle in full compliance with all applicable ordinances of the city and statutes of the state, and particularly ordinances governing the stopping, standing, or parking of vehicles, and such vehicle shall remain so stopped, standing or parked for no longer than is necessary to make the immediate sale or to dispense such frozen dessert products.

(b) Any truck used for the purpose of selling or dispensing frozen desserts shall be equipped with a sign clearly visible from both the front and rear, mounted on the top of the truck and bearing the warning "CAUTION—CHILDREN." The lettering for such sign shall be block style letters not less than six inches high and one-half inch wide, and such letters shall be black against a yellow background. Flasher-type warning lights displaying yellow to the front and red to the rear and which operate continuously while the truck is stopped for the purpose of making a sale or dispensing frozen desserts shall be installed at each end of the sign. Failure to so equip and maintain such a truck shall be punishable upon conviction by a fine of not less than $100.00 nor more than $500.00 and each day's violation shall be a separate offense.

(Code 1968, § 41-10.2; Ord. No. 76-981, § 1, 6-30-76; Ord. No. 92-1449, § 54, 11-4-92)

Charter reference— Penalty for ordinance violation, Art. II, § 12.

Cross reference— Food and drugs, Ch. 20; assessment of fines against corporations, § 16-76;

payment of fines, § 16-78; credit against fines for incarceration, § 35-6 et seq.

Sec. 40-9.1. Sale of frozen desserts from push carts.

Frozen desserts may be sold upon the sidewalks from non-motorized push cart mobile food units. Each push cart mobile food unit must be operated pursuant to a medallion issued under section 20-37 of this Code. If the mobile food unit does not meet the criteria for restricted operations, as established in section 20-22 of this Code, then the operator shall also obtain a food dealer's permit under section 20-36





of this Code. The provisions of this section do not authorize the operation of a push cart mobile food unit upon the sidewalks in a park as defined in article IX of chapter 32 of this Code or within the "theater/entertainment district," as defined in article XI of this chapter, unless any additional permits, concessions or licenses that are required for operation in those areas are also obtained in full compliance with the aforesaid articles.

(Ord. No. 93-1327, § 3, 10-20-93)


Editor's note—

Ord. No. 07-225, § 4, adopted Feb. 14, 2007, repealed § 40-10 in its entirety. Formerly, said section pertained to the sale of newspapers on public property and derived from Code 1968, § 41-10.3; Ord. No. 76-1190, § 1, 7-14-76.

Sec. 40-10.1. Sidewalk cafés.

(a) Purpose. The purpose of this section is to establish procedures and standards by which persons may use certain city rights-of-way for café purposes by means of a license issued under the authority of this section.

(b) Definitions. As used in this section, the following terms and phrases shall have the following meanings:

(1) Abutting property shall mean restaurant property contiguous to a public street right-of-way on which a sidewalk café will be operated under this section.

(2) Application shall mean that form generally described in subsection (d) which must be completed prior to the issuance of a license hereunder.

(3) Canopy shall mean an awning as defined by the city building code.

(4) License shall mean the written authorization from the traffic engineer granted pursuant to the provisions of this section.

(5) Owner shall include any owner of fee simple title, part owner, joint owner, tenant in common, tenant in partnership, joint tenant, or tenant by the entirety of the whole of the land contiguous to the right-of-way on which a sidewalk café is to be operated under the authority of this section.

(6) Person shall mean an individual, a group of individuals, an association, a club, a society, a firm, a partnership or a corporation.

(7) Public clearance way shall mean an imaginary three-dimensional shape not less than four and one-half feet and not more than 12 feet high vertically extending in a straight line parallel to the public right-of-way and extending the full and complete width of the property to be used as a sidewalk café under the authority of this section.

(8) Public street means the entire width between the boundary lines of every way which is held by the city in fee or by easement or dedication when any part thereof is open to the use of the public for purposes of vehicular travel; provided the term "public street" shall not include any designated state or federal highway or road or any designated county road.

(9) Restaurant shall mean a food service establishment where food is served in individual portions for consumption on the premises as defined by section 20-18 of this Code. This term shall not include an establishment which operates exclusively as a caterer, a commissary, a food





processing establishment, a mobile food unit, a retail food store or a temporary food service establishment, all as defined by section 20-18

(10) Roadway means that portion of a public street which is improved, designed, or ordinarily used for vehicular travel, exclusive of the curb, berm, or shoulder. In the event that a public street includes two or more separate roadways, "roadway" means each such roadway separately.

(11) Sidewalk shall mean that portion of the public street which is between the curblines, or the lateral lines of a roadway, and the adjacent property lines and which is improved and designed for or is ordinarily used for pedestrian travel.

(12) Sidewalk café shall mean an outdoor dining area located on a sidewalk and containing removable tables, chairs, planters, or related appurtenances. In no event shall a sidewalk café be located on or encroach upon the public clearance way as established by the traffic engineer under the provisions of this section. It shall not be enclosed by fixed walls and shall be open to the air, except that it may have a canopy.

(c) License required. It shall be unlawful for any person to erect, operate or maintain a sidewalk café without first obtaining a license to do so as provided in this action.

(d) Procedure for issuance of license:

(1) The traffic engineer is authorized to issue licenses to persons for sidewalk café purposes under the procedures established in this subsection. To obtain a license, a person must pay the applicable fee and file an application on a form prescribed by the traffic engineer. As a part of the application the applicant shall provide:

a. The name and street address of the applicant.

b. The name and street address of the owner of the abutting property.

c. A description of the owner, if other than a natural person, including its legal status (i.e., corporation, partnership, etc.) and a general description of the type(s) of business the owner operates on the abutting property.

d. Written authority in the form of a power of attorney from the owner to submit the application if the applicant is not the owner of the abutting property.

e. The name and street address of the registered agent for the service of process, if the applicant represents a corporation; or the names and street addresses of the officers or partners, if the applicant represents an association, partnership or other entity.

f. The name and street address of the operator, manager or other person responsible for the operation of the sidewalk café.

g. The name under which the sidewalk café will be operated.

h. The street address and the city food establishment license number of the sidewalk café.

i. One or both of the following:

1. A copy of a title policy covering the abutting property and verification by the owner that there has been no change in ownership since the issuance of that policy; or

2. A certified copy or copies of the most recent deed or deeds conveying all or a portion of the abutting property so that ownership of all of the abutting property is accounted for, and verification by the owner or owners that there has been no change in ownership since the date or dates of that deed or deeds.

j. A site plan of legible proportions prepared by a registered public surveyor or professional engineer showing:





1. The entirety of the abutting property of the owner;

2. All contiguous, adjacent properties;

3. All existing sidewalk features including but not limited to utility poles, sign poles, fire hydrants, permanent litter receptacles, telephone booths, newsracks, and mailboxes; and

4. Streets for a distance of at least 25 feet on either side of the abutting property.

k. Detailed drawings of legible proportions showing the design, dimension and proposed location of all temporary structures (i.e., canopies, umbrellas, planters, landscaping, tables, chairs, all exterior lighting, electrical outlets, etc.), the proposed public clearance way and the side and front elevations of the proposed sidewalk café. In addition to the above-noted drawings the traffic engineer may require detailed drawings at a scale of ½ inch equals one foot showing the front facade of the abutting property and at least ten feet of the first story facade of adjacent buildings.

l. The seating capacity of the proposed sidewalk café and the seating capacity of the restaurant which will be associated with the sidewalk café, if any.

m. A copy or copies of the certificate or certificates of insurance required to be provided under subsection (d)(4).

n. Written documentation showing that adequate public water and sewer utilities are available to serve the sidewalk café.

If the records of the public works and engineering department include existing and apparently valid property boundary data that address a portion of the relevant information specified in part j. above, or if the traffic engineer otherwise determines that survey data is not required in order to determine property boundaries in compliance with this section, then the traffic engineer shall allow the applicant to provide a simplified site plan that need not be prepared by an engineer or surveyor, provided that the site plan is drawn to scale and includes the sidewalk configuration.

(2) Upon receipt of the application, the traffic engineer shall examine its contents and he shall approve the application if he finds that:

a. The application meets the requirements of this section.

b. The proposed sidewalk café would be in compliance with applicable city ordinances.

c. Given the particular characteristics of the sidewalk upon which the sidewalk café is to be located, and of the pedestrian and vehicular traffic in the area, the operation of the proposed sidewalk café will not unreasonably interfere with pedestrian or vehicular traffic.

d. He has determined in writing that:

1. The improvement or facility will not be located on, extend onto, nor intrude upon any portion of the roadway;

2. The improvement or facility will not be located on, extend onto, nor intrude upon any portion of the sidewalk which is needed for pedestrian use;

3. The design and location of the improvement or facility includes all reasonable planning to minimize potential harm or injury to or interference with the public in the use of the public street; and,

4. The improvement or facility will not create any hazardous condition or obstruction of vehicular or pedestrian travel upon the public street.





Otherwise he shall reject the application. If the application is approved, the traffic engineer shall specifically approve, disapprove or modify the location and dimensions of the public clearance way. If the traffic engineer rejects the application, he shall inform the applicant by notice in writing of his action including the reasons for the action if the application is rejected. Upon rejection of the application a person may modify and refile his application if he so desires or he may, within ten days of the date of the mailing of the notice of rejection, request a hearing before the city planning commission if he believes his license was unreasonably denied. The applicant's request for a hearing should be made in writing to the director of the department of planning and development as secretary of the city planning commission. A hearing shall then be scheduled in a timely manner before the city planning commission.

(3) A license granted hereunder shall be valid for a period of one year from the date of its issuance. The licensee is responsible for renewing his sidewalk cafélicense prior to that anniversary date. If the licensee does not renew his license, he shall remove all tables, chairs and other appurtenances associated with that sidewalk café on or before the expiration date of the license.

(4) The licensee shall maintain insurance in the following types and amounts:

$1,000,000.00 combined single limit for bodily injury and property damage, each occurrence, and $2,000,000.00 annual aggregate.

The city shall be an additional insured on each such policy and such policy shall include a provision to the effect that the city will be notified in writing by the insurance company ten days prior to the cancellation of such policy. The licensee shall then have five days to replace that coverage or the licensee's license shall be deemed revoked without further action on the part of the city. The notice provisions of subsection (d)(7) shall not be applicable for revocation of the license for this reason. THE LICENSEE ALSO AGREES TO INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS AND EMPLOYEES AGAINST ANY LOSS, LIABILITY OR DAMAGE, INCLUDING EXPENSES AND COSTS FOR BODILY INJURY AND FOR PROPERTY DAMAGE SUSTAINED BY ANY PERSON AS A RESULT OF THE LICENSEE'S OPERATION OF A SIDEWALK CAFÉ ON PUBLIC PROPERTY.

(5) A license issued by the traffic engineer shall be subject to the following conditions and may be suspended for failure to comply with them:

a. The sidewalk shall be kept free of standing water, maintained in good repair and kept free from material defects that may present a hazard to life or property.

b. No permanent improvement will be installed in or on the sidewalk. All chairs, tables and other appurtenances associated with the sidewalk café shall be removable at all times.

c. A sidewalk café license is issued in the licensee's name and can not be assigned, sold, or otherwise transferred.

d. A sidewalk café license is a license for a temporary and interruptible use of a sidewalk. It does not and shall not be construed to convey any legal or equitable interest whatsoever to any part of the sidewalk or public right-of-way.

e. A sidewalk café licensed hereunder shall be subject to an inspection by the traffic engineer or his representatives at any time such an inspection is requested. No notice from the traffic engineer prior to such an inspection shall be required.

f. The license is granted subject to the availability of utilities and compliance with all other applicable state and city rules and regulations specifically including all food or health-related ordinances of the city.





g. The sidewalk café may never be enclosed by a permanent wall or other temporary or permanent structure or improvement, except that the boundaries of a sidewalk café may be delineated through the use of a temporary barrier such as a balustrade, cordon, or railing. Any such temporary barrier must be easily removed and three feet or less in height above the sidewalk. Under no circumstances shall temporary barriers as authorized hereunder be allowed in the public clearance way as established by the traffic engineer. In addition, a temporary barrier shall not be affixed to the sidewalk or to any permanent structure, except that it may be attached by removable clips or devices approved in advance by the traffic engineer. With the approval of the traffic engineer, a licensee may drill holes in the sidewalk to secure those clips or devices to the sidewalk. Those clips or devices shall enable a temporary barrier to be easily attached, detached and removed without the temporary barrier, clips, or devices causing damage to the sidewalk.

h. A licensee may not obstruct ingress or egress to any other building or business. In addition, all facilities or improvements shall comply with clearances required from structures to utility lines as provided in a nationally recognized building code.

i. Under no circumstances, shall planters, trees, shrubs, tables, chairs or other such material or appurtenances be allowed in a public clearance way as established by the traffic engineer.

j. The licensee shall maintain adequate lighting in and around the public clearance way to ensure that all obstructions may be easily seen. Such lighting shall be of such type and location and shall have such shading as will prevent the source of the light from being seen from any contiguous, adjacent residential property. It shall not cause illumination beyond the boundaries of the property on which it is located so as to be obtrusive to adjacent property owners and shall not cause illumination beyond the boundaries of the property in excess of five-tenths footcandle. The illumination of the street from the sidewalk shall be no brighter than the illumination provided by ornamental street lights nor shall it have an adverse impact on the flow of vehicular traffic. In addition, its design and color shall not be such that it could be mistaken for a traffic signal.

k. The licensee shall not obstruct access to hydrants, street lights, telephones, mailboxes, transit stops, or any other public service facility on the sidewalk or street. City facilities or improvements or public utility facilities and improvements within the public streets cannot and will not be relocated by the city or the licensee as the result of the sidewalk café operations.

l. The licensee shall install and maintain permanent markers in the sidewalk at grade showing the corners of the public clearance way as established by the traffic engineer.

m. The licensee shall not install, erect or maintain any signs not permitted by the city sign code (chapter 46 of the City of Houston Building Code).

n. The licensee shall be responsible for supervising the conduct of its patrons and employees.

o. The licensee shall not serve food or beverages to a patron at a sidewalk café unless that patron is seated at a table.

p. The licensee shall ensure that the information provided as a part of his application remains true and correct at all times.

q. The licensee shall not allow the outdoor storage or preparation of food or drink and shall not erect or permit the erection of outdoor waiters' stations.

r. Under no circumstances shall the licensee place, erect, or construct any structure or sidewalk café appurtenance within two feet of the curbline.





s. The licensee shall obtain and maintain in force a certificate of occupancy for the sidewalk café and associated premises.

t. A sidewalk café licensed hereunder may be operated only on the abutting property.

(6) Failure to observe any of the above conditions shall result in up to a one-year suspension of a sidewalk café license. Prior to such suspension the traffic engineer shall give ten days' written notice to the licensee of his violation of or his failure to observe a general condition as set out above. If the licensee requests a hearing prior to the expiration of that ten-day notice period, the traffic engineer shall hold a hearing to determine if the license shall be suspended. The licensee may present evidence in his own behalf if he so desires. The traffic engineer's decision in regard to suspension shall be final. If the licensee fails to request such a hearing, the suspension shall become effective upon the expiration of the ten-day notice period. If operations under a license granted under this section are suspended, all tables, chairs and other appurtenances used as a part of the sidewalk café shall be immediately removed from the sidewalk.

(7) All notices required or permitted under this section shall be in writing and shall be deemed delivered three days after deposit in a United States Postal Service post office or receptacle with proper postage affixed and addressed to the licensee at the street address provided by the licensee (the applicant's name and street address) in his application for a sidewalk café license.

(e) Operations:

(1) No licensee shall cause, permit or allow the following conditions to exist:

a. Preset tables.

b. Litter or trash on the sidewalk or street right-of-way.

c. Any temporary obstruction in the public clearance way (i.e., ice carts, waiters, chairs, etc.).

d. An inadequate number of outdoor trash containers.

(2) The traffic engineer is authorized to issue a written notice of violation of any of the conditions noted above. In the event that three such notices are issued for violations of the above provisions, within a one-year period, the traffic engineer shall, after notice to the licensee, hold a hearing to determine if the license shall be revoked. The licensee may submit evidence in his own behalf if he so desires. The traffic engineer's decision with regard to revocation shall be deemed final. If a license granted hereunder shall be revoked, all tables, chairs and other appurtenances used as a part of the sidewalk café shall be immediately removed from the sidewalk.

(3) In the event that the city health department issues a notice of violation of any of the ordinances of the city to a licensee in connection with the operation or any condition attributable to the licensee's sidewalk café, that department shall immediately notify the traffic engineer of the issuance of that notice. Conversely, if the traffic engineer is notified of or becomes aware of any condition or occurrence which may constitute a violation of any food or health-related ordinance, the traffic engineer shall immediately so notify the city health department.

(4) In addition to the provisions of subsection (e)(1) hereof, a license shall be revocable without liability therefor if the traffic engineer finds that a public necessity or emergency exists requiring an immediate revocation of the license and termination of operation of the sidewalk café or in the event of lawful need for the site or for access thereto by the city or any utility company, in which case the city may remove the facilities on the site or order the licensee to do so. The traffic engineer shall provide written notice to the licensee as promptly as possible. This notice shall state the reason or reasons removal is or was required. Public necessity for these purposes shall include changed circumstances causing increased pedestrian or vehicular traffic





in the area. Notice under this clause shall constitute an exception to the notice provisions of subsection (d)(7).

(f) Fees and bond:

(1) The fee for a sidewalk café license or a renewal of a sidewalk café license is stated for this provision in the city fee schedule.

(2) The licensee shall also provide a cash bond or a bond with the licensee as principal and a corporate bonding company licensed to do business in the state as surety in an amount determined by the traffic engineer to be sufficient to cover the costs of removal of the licensee's facilities by the city or any public utility under any of the provisions of this section, conditioned that the licensee will timely remove its facilities upon request therefor and will reimburse the city or a public utility in the event that the city or a public utility removes the facilities pursuant to this section. Any licensee who received his sidewalk café license hereunder on or before the June 1, 1985, shall have 60 days to provide a bond as required hereunder. If such a licensee fails to deliver such a bond to the traffic engineer, his sidewalk café license shall terminate upon the expiration of that 60-day period.

(Ord. No. 84-1671, § 2, 10-23-84; Ord. No. 84-1888, § 1, 12-5-84; Ord. No. 85-902, § 1, 6-18-85; Ord. No. 86-916, § 1, 6-17-86; Ord. No. 90-635, §§ 99, 100, 5-23-90; Ord. No. 93-514, § 68, 5-5-93; Ord, No, 03-942, §§ 1, 2, 10-15-03; Ord. No. 07-225, § 5, 2-14-07; Ord. No. 2011-1168, § 13, 12-14-2011)


Editor's note—

Ord. No. 04-498, § 7, adopted May 26, 2004, repealed § 40-11 in its entirety. Formerly said section pertained to obstructing sidewalks, with boxes, material, vehicles, etc. and derived from Code 1968, § 41-11; Ord. No. 02-974, § 4, 10-30-02.

Sec. 40-12. Sidewalk access doors.

(a) It shall be unlawful for any person to construct, maintain or operate, or cause or permit to be constructed, maintained or operated, any sidewalk access door without lifts or chutes, on a sidewalk or street or other public area of the city serving the basement of any building or structure adjacent thereto, without first obtaining from the public works and engineering director a written permit to make such installation. Such permit shall only be issued on a written application in form approved by the city legal department, which shall provide for indemnity to the city for damage to persons or property by reason of such installation. Such application shall be duly acknowledged by the applicant and, where the applicant is not the owner of the abutting property, by the owner of such abutting property, and it shall contain a covenant running with the land, binding the fee owner of the land abutting the installation and on which the sidewalk and installation are constructed, and his heirs and assigns.

(b) Such permit shall require that such sidewalk door shall be opened only between the hours of 10:00 p.m. and 6:00 a.m., so as to impede pedestrian traffic as little as possible. The type of door and the exact location of the door shall be subject to the inspection and approval by the public works and engineering director, and such permit shall be issued subject to all the pertinent requirements of this chapter.

(Code 1968, § 41-12; Ord. No. 90-635, § 101, 5-23-90; Ord. No. 93-514, § 69, 5-5-93)






Editor's note—

Ord. No. 04-498, § 7, adopted May 26, 2004, repealed § 40-13 in its entirety. Formerly said section pertained to endangering passage on streets or sidewalks by excavation or material while building or repairing and derived from Code 1968, § 41-13; Ord. No. 02-974, § 5, 10-30-02.

Sec. 40-14. Clearance of tree limbs over sidewalks.

It shall be the duty of the owners and occupants of lots in the city in front of and adjacent to which shade trees are growing in the streets, to keep the same trimmed in such a manner that the limbs and branches of the same overhanging the sidewalks shall be at least eight feet above the ground.

(Code 1968, § 41-15)

Sec. 40-15. Banners and signs prohibited over or across streets.

It shall be unlawful for any person to erect, place, construct or maintain or to permit any premises owned or controlled by such person to be used for the purpose of supporting any banner or suspended sign over or across any portion of a public street in the city, except as provided in sections 40-30 and 40-31 of this Code.

(Code 1968, § 41-16; Ord. No. 85-2072, § 2, 11-27-85; Ord. No. 05-603, § 3, 5-11-05)

Sec. 40-16. Painting or posting house numbers on curbs.

(a) No person, except the abutting property owner, shall paint, print or post any house number upon any curb in any public street in the city unless such person has first obtained a permit from the director of the department of public works and engineering and prior approval from the owner of the abutting property.

(b) To obtain a permit, the applicant must file an application therefor in writing, on a form provided by the city, setting forth his permanent address and the address at which he can be reached. Copies of leaflets or other materials intended to be used in the solicitation of approval of owners or otherwise promoting the painting, printing or posting of house numbers upon curbs shall be submitted for approval with the application.

(c) All leaflets or other materials soliciting approval of owners or otherwise promoting the painting, printing or posting of house numbers upon any curb in any public street shall conspicuously state that neither the city nor any department thereof is engaged in, promotes or is any way connected with such painting, printing or posting of such house numbers, and shall state the name and address of the person or company responsible for such painting, printing or posting. "Conspicuously" as used in this section, shall mean that the words are of such size, type or color that they will be noticed by an average person who reads such leaflet or materials.

(d) The director of the department of public works and engineering shall issue a permit without charge to the applicant unless it is determined that the applicant has not set forth his permanent address and the address at which he can be reached, or the leaflets or other materials intended to be used in soliciting approval of owners or otherwise promoting the painting, printing or posting of house numbers upon curbs do not comply with the requirements set out in subsection (c).





(e) Said permit shall entitle the holder thereof to paint, print or post house numbers on curbs for a period of one year from the date of issuance of the permit when such painting, printing or posting of house numbers is done in compliance with all applicable laws and ordinances. Upon expiration of the permit, a renewal may be obtained by complying with all requirements for the issuance of an original permit.

(f) Any person, including the abutting property owner, who paints, prints or posts house numbers on any curb of a public street shall do so in compliance with the rules and regulations promulgated by the director of the department of public works and engineering with regard to size, color, location or other matters dealing with the painting, printing or posting; provided, however, any such rules promulgated by the said director shall be in writing and shall be available to the public during office hours in the office of said director.

(g) Neither the provisions of this section nor the granting of a permit in accordance herewith shall be construed to permit the distribution of any leaflets or other materials in violation of any ordinance.

(Code 1968, § 41-17; Ord. No. 76-860, § 1, 5-25-76; Ord. No. 90-635, § 102, 5-23-90; Ord. No. 93-514, § 70, 5-5-93)

Cross reference— House numbering, § 10-211 et seq.

Sec. 40-17. Tearing up, injuring, defacing, etc.—Streets.

It shall be unlawful for any person to wilfully or maliciously tear up, injure, deface or destroy in any manner any paved street or any portion thereof.

(Code 1968, § 41-18)

Sec. 40-18. Same—Sidewalks.

It shall be unlawful for any person to wilfully or maliciously tear up, injure, deface or destroy any sidewalk, or any portion thereof.

(Code 1968, § 41-19)

Sec. 40-19. Removing or defacing street line marks or street name signs.

It shall be unlawful for any person to remove any post, stake or other mark indicating the lines of any street or alley, or pull down, remove or deface any board, sign or plate indicating the name of any street.

(Code 1968, § 41-20)

Sec. 40-20. Removal of street construction materials.

It shall be unlawful for any person to remove any street construction materials, articles or substances placed on or in any street of the city without first obtaining the written permission of the mayor.

(Code 1968, § 41-21)





Sec. 40-21. Mixing mortar or cement on streets.

It shall be unlawful for any person to mix any lime or other mortar or cement upon any of the streets of the city.

(Code 1968, § 41-22)

Sec. 40-22. Moving vehicles which drop or throw mud or clay on streets.

(a) It shall be unlawful for any person to move or allow the moving of, by his agent or employee, upon the streets within the city, any vehicle that drops or throws mud, clay or earth upon the surface of any such streets.

(b) Any person violating this section, upon conviction, shall be punished as provided by section 1-6 of this Code.

(Code 1968, § 41-23; Ord. No. 92-1449, § 55, 11-4-92)


Cross reference— Solid waste and litter control, Ch. 39; assessment of fines against

corporations, § 16-76; payment of fines, § 16-78; credit against fines for incarceration, § 35-6 et

seq.

Sec. 40-23. Use of unguarded welding apparatus near street or sidewalk.

It shall be unlawful for any person to operate or cause or permit to be operated any electrical welding apparatus or oxyacetylene welding apparatus, which emits a flare or arc within 20 feet of any public street or sidewalk of the city, unless such flare or arc emitted from such welding apparatus is shielded so as to be invisible from the public street and sidewalk.

(Code 1968, § 41-24)

Sec. 40-24. Allowing water to run into or upon streets or sidewalks.

It shall be unlawful for any person to permit the water from any hydrant, fountain or sink, situated upon any premises owned or controlled by such person, to run into or upon any sidewalk or street of the city so as to cause such sidewalk or street to become wet and muddy, or so as to cause a public nuisance.

(Code 1968, § 41-26)

Sec. 40-25. Throwing articles on streets or sidewalks from roofs or upper stories.

It shall be unlawful for any person to throw any article from the roof or an upper story of a house upon any street or sidewalk.

(Code 1968, § 41-27)





Sec. 40-26. Dropping window cleaners' tools on sidewalk.

It shall be unlawful for any person engaged in the washing, cleaning or polishing of any windows upon the outside of any building on, over or abutting any sidewalk in the city to use, handle or have any tool or other equipment for use in such work unless the same is tied, chained or fastened in some suitable manner so that such tool or other equipment cannot fall or drop in, on or upon the sidewalk beneath or adjacent to which such workman is working.

(Code 1968, § 41-28)


Editor's note—

Ord. No. 2010-911, § 3, adopted December 1, 2010, repealed § 40-27 in its entirety. Formerly said section pertained to street functions and derived from Code 1968, § 41-29; Ord. No. 75-1945, § 1, 10-22-75; Ord. No. 89-559, § 1, 4-19-89; Ord. No. 89-1741, § 1, 12-6-89; Ord. No. 90-635, §§ 103, 104, 5-23-90; Ord. No. 93-514, §§ 71, 72, 5-5-93; Ord. No. 99-595, § 1, 6-16-99; Ord. No. 07-656, § 1, 6-6-07; Ord. No. 08-52, § 66, 1-16-08, eff. 1-26-08. The users' attention is directed to Ch. 25, § 25-1 et seq. for similar provisions.


Editor's note—

Ord. No. 04-498, § 7, adopted May 26, 2004, repealed § 40-28 in its entirety. Formerly said section pertained to street work and removal of manhole covers prohibited between certain hours and derived from Code 1968, § 41-30 and subsequent amendatory ordinances.

Sec. 40-29. Police and fire departments to be notified of street closing.

The director of public works and engineering shall give and direct notices of the closing of any streets within the city, at least 24 hours before the closing thereof, to the police department and the fire department.

(Code 1968, § 41-31; Ord. No. 90-635, § 106, 5-23-90; Ord. No. 93-514, § 74, 5-5-93)

Sec. 40-30. Banner districts; creation; decorative banners permitted.

(a) Purpose. Except as provided in section 40-31 of this Code, the purpose of this section is to allow an electric utility to use its street light standards for the installation of cloth banners to enhance and accentuate the aesthetic appeal of certain areas of the city.

(b) Definitions. As used in this section and in section 40-31 of this Code, the following terms and phrases shall have the meanings ascribed to them in this subsection:

Banner shall mean a decorative outdoor display that is placed, erected or fastened to a street light standard owned and maintained by an electric utility as permitted by this section. Banners shall be used for noncommercial or nonpolitical purposes only and shall use a word or words only as a part of an artistic composition.





Banner district means an area designated by the city council pursuant to this section within which the display of banners is permitted.

Electric utility shall mean a franchisee of the city actively conducting an electrical power and lighting business.

(c) Designation procedure. A banner district may be designated by the city council in accordance with the following procedure:

(1) Residents of the city may request that the city council designate any area or areas within the city as a banner district. Any such request must include the specific boundaries of the proposed district to be considered by the city council.

(2) Following the filing of any such request with the city secretary, the city council shall, within 45 days of the date of filing, conduct a public hearing to consider the merits of the request.

(3) Any interested person shall have the opportunity to participate in any hearing conducted under the provisions of this section and to present any relevant evidence and testimony.

(4) As a result of such hearing, city council shall determine whether or not the area meets the following criteria:

a. The area has paved public streets with rights-of-way not less than 60 feet wide;

b. The land use in the proposed district is primarily nonresidential; and

c. The designation of the proposed district would not endanger the health, safety, welfare and public convenience of the citizens of the city.

(5) Should a majority of the city council decide that the proposed area meets all the above criteria, the council shall designate the proposed area or a portion thereof as a banner district.

(6) Should a majority of the city council decide that the proposed area does not meet the above criteria, the proposed area shall not be designated as a banner district. No subsequent request seeking designation of any area or portion of an area that failed to meet the criteria of this section under a prior request shall be considered by city council until one year has elapsed from the date of the filing of the prior request.

(7) The action of the city council in approving or disapproving the designation of the banner district proposal may be taken by a motion duly adopted by the city council, and no resolution or ordinance shall be required.

(d) Banners allowed. An electric utility may place, install, erect or maintain, or cause or allow to be placed, installed, erected or maintained, a banner or banners on street light standards on public streets in a banner district. A banner shall not be allowed to be or become a distraction to drivers, or a traffic hazard, or to obstruct street light illumination to any substantial degree.

(e) Removal of banners. A banner shall be immediately removed by the owner of the light standard if the director of public works and engineering finds that a public necessity or emergency exists requiring the immediate removal of the banner. The director may issue a written or oral removal order directed and delivered to the owner. Subsequent to an oral removal order, the director shall issue a written notice to the owner within five days of such oral removal order. Written removal notices hereunder shall specify the reasons for the director's removal order and the duration of that order. The duration of the order shall be for only as long as is reasonably necessary under the circumstances. "Public necessity" for this purpose shall include but not be limited to, a threat to the public health, safety and welfare.

(Ord. No. 85-2072, § 3, 11-27-85; Ord. No. 90-635, § 107, 5-23-90; Ord. No. 91-160, § 1, 2-6-91; Ord. No. 93-514, § 75, 5-5-93; Ord. No. 95-1085, §§ 1—3, 10-11-95; Ord. No. 04-1006, § 2, 9-29-04; Ord. No. 05-603, § 4, 5-11-05)





Sec. 40-31. Special event banners.

(a) Definitions. As used in this section, the following terms and phrases shall have the meanings ascribed to them in this sub-section:

Convention means a convention, trade show, corporate meeting or other event scheduled to be conducted at the George R. Brown Convention Center that is anticipated to generate at least 2,000 peak room nights or in excess of 10,000 room nights in hotels located within the city over the course of the event, as determined by the director of the convention and entertainment facilities department.

Special event banner means a banner that, in connection with a convention, may contain a word or words limited to the following: (1) a welcome, (2) the name of the convention, (3) the date of the convention, (4) the location of the convention, and (5) the symbol or logo of the organization whose name is part of the convention name.

(b) Authorization of display. Special event banners may be displayed only in connection with a convention, as defined in this section. It shall be unlawful to display any special event banner without written confirmation by the director of the convention and entertainment facilities department that a convention is scheduled to be conducted.

(c) Time of display. Special event banners may be displayed only during the time period that begins ten days before the opening date and ends not more than five days after the closing date of the same convention, provided that in the event of a conflict between two or more conventions that each desire to display special event banners or in the case of a conflict with a display of banners on streets where special event banners are requested, the director of the convention and entertainment facilities shall be authorized to coordinate or alter but not extend the display periods.

(d) Location of display. Special event banners may be displayed only on the following specific street segments: Avenida de las Americas from Polk Avenue to Texas Avenue; LaBranch Street from Rusk Avenue to Dallas Avenue; Lamar Avenue from Crawford Street to Avenida de las Americas; Dallas Avenue from Bagby Street to Crawford; McKinney Avenue from Crawford Street to Avenida de las Americas; and Walker Avenue from Avenida de las Americas to Main Street.

(e) Removal of special event banners. A special event banner shall be removed immediately by the owner of the light standard pursuant to section 40-30(e) of this Code if the director of public works and engineering finds that a public necessity or emergency exists requiring the immediate removal of the special event banner.

(f) Biennial review. On July 1 in each odd year beginning in 2007, the convention and entertainment facilities department will provide the mayor's office with a report reflecting the events for which special event banners have been used during the preceding two year period and, to the extent available, events for which such banners are planned for succeeding years. The reports will include an evaluation of the impact of such banners on attracting and booking conventions together with a discussion of any other benefits or problems associated with use of the special event banners, such as effects on aesthetics surrounding the George R. Brown Convention Center, attendance at conventions, or assistance to attendees in locating events. The mayor's office will forward the reports to the chair of the appropriate city council committee or committees for review and recommendations for any changes to this section 40-31 of this Code.

(Ord. No. 05-603, § 5, 5-11-05)




ARTICLE II. PRIVATE STREET WORK IN GENERAL


ARTICLE II. PRIVATE STREET WORK IN GENERAL [2]

DIVISION 1. - GENERALLY

DIVISION 2. - PERMIT

FOOTNOTE(S):

--- (2) ---

Cross reference— Erection of detour or barricade signs, 45-18; driving on fresh pavement, § 45-42. (Back)




DIVISION 1. GENERALLY



Sec. 40-41. Scope of article; definitions.

Sec. 40-42. Exemptions.

Sec. 40-43. Minimum standards, drawings and specifications.

Sec. 40-44. Stop work orders.

Sec. 40-45. Work beyond scope of permit prohibited.

Sec. 40-46. Removal of work done without permit.

Sec. 40-47. Appeal from orders or decisions of director.

Sec. 40-48. Responsibility for violations.



This article shall control and govern the doing within any street or alley in the city of any of the following work or construction: Any paving, or the construction of any curb or gutter (including driveway construction incident to curb or gutter construction). The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) Director shall mean the director of the public works and engineering department of the city or his duly designated employees.

(2) Paving shall include not only the construction of a concrete roadway or an asphalt or asphaltic surfaced roadway, but also a shell or gravel roadway or a roadway constructed of any other type whatsoever of road building material.

(3) Private street work. Any and all of the work or construction described in this section (except that which is described in section 40-42) will be meant when the term "private street work" is used in this article or in any application, permit or bond made, issued or given pursuant to the requirements hereof.

(4) Street shall include any public street in the city, including areas shown as such on any subdivision map which has been approved by the planning commission whether or not such map has yet been filed for record with the county clerk of the county in which the subdivision is located; and shall include also any areas shown as such on any map which has been filed with and which is on file with the planning commission for its approval thereof.







Sec. 40-42. Exemptions.

(a) Notwithstanding the provisions of section 40-41 of this Code, there shall be excluded from the operation of this article any of the following work, and none of the following work shall require any of the permits, applications or bonds required by this article:

(1) Work done by city forces (that is, by employees of the city in the course of their employment) or by contractors employed therefor by the city.

(2) Sidewalks.

(3) Repair by gas, light or telephone companies of cuts made by them in streets incident to installation or repair of their lines, or ordinary repair made by railway companies within the area between the rails of their tracks or within two feet of the outside of such rails.

(4) Work which the director or any other officer of the city may, within his authority, duties or powers, direct or order any person to perform.

(b) The foregoing work which is excluded from the application of this article shall remain subject to any and all of the city's present or future ordinances related to any of such work.

(Code 1968, § 41-43)

Sec. 40-43. Minimum standards, drawings and specifications.

(a) There are hereby approved and adopted certain specifications, including certain drawings which have been prepared by the director covering private street work and setting forth in detail the types, sorts, grades and standards of the various materials to be used on the several types and sorts of such work referred to in section 40-41 of this Code, together with the manner, means and methods of the doing of such work. No private street work shall be done in the city except in accordance with such drawings and specifications, or in accordance with drawings, plans and specifications approved by the director which provide for a higher standard of material or work.

(b) Such specifications hereby approved, securely bound together, in two identical duplicate counterparts, bear upon their faces the endorsement of the director identifying them as the specifications which have been prepared by him and submitted to the city council for approval in connection with this article. The city secretary is hereby ordered to likewise identify them under his signature and seal and to file one copy thereof as a permanent record and document in his office and to deliver the other thereof to the director to become a permanent record in his office.

(c) Such minimum standards may hereafter from time to time be amended without other formality than the passage of an appropriate ordinance to such effect, appropriately identifying the new or substituted drawings or specifications, and requiring that the same (appropriately identified as above provided by the signature of the director and of the city secretary) be appended to and made a part of the specifications and drawings hereinabove approved as minimum standards.

(d) The city council hereby approves an amendment to the drawing referred to above (to bear, however, the same drawing number it has in the past), by which there will be eliminated from such drawing the entire reference therein to "concrete post street name markers" and there will instead be placed upon such drawing an appropriate endorsement to the effect that a street name sign conforming with the requirements of Council Motion No. 5965, 1956, shall be erected at each street intersection and that specifications for the sign and erection method will be available in the office of the director.

Upon a print of such revised drawing, appropriately identified as such, being delivered to him by the director, the city secretary will insert such revised drawing in such specifications as and to become a part






thereof, leaving therein, however, the sheet of such drawing as originally contained therein, writing upon such original sheet an appropriate endorsement over his signature to the effect that it has been superseded by the revised drawing.

(Code 1968, § 41-44; Ord. No. 90-635, § 109, 5-23-90)

Sec. 40-44. Stop work orders.

(a) If the director is of the opinion that any work which is being done pursuant to or under color of any permit issued as provided for in this article is not in accordance with the terms of the permit or the plans or specifications therefor, he may direct the person to whom the permit was issued to cease all work on the project until the defaults, errors or omissions specified by him have been remedied. Any person to whom a permit has been issued for the doing of any private street work who, after the director shall have ordered the cessation of work thereupon, shall do any such work or cause or permit any such work to be done (except the remedying of the defects, defaults, or omissions complained of by the director) shall be guilty of an offense. Each day on which any such unauthorized work is performed in violation of an order to cease the work shall constitute a separate offense.

(b) When satisfied that the defaults, errors or omissions specified by him have been remedied, the director shall in writing authorize the resumption of the work. It shall not, in any prosecution for a violation of this section, be necessary that the complaint negative the issuance of such a resumption order, but the same shall be matter to be shown in defense in any such prosecution.

(Code 1968, § 41-45)

Sec. 40-45. Work beyond scope of permit prohibited.

Any person to whom a permit shall have been issued for the doing of any private street work, as provided for in this article, who shall do or cause to be done any private street work beyond the scope of or not within the permission given by such permit shall be guilty of an offense. Each day on which any such unauthorized work is performed shall constitute a separate offense.

(Code 1968, § 41-46)

Sec. 40-46. Removal of work done without permit.

(a) If any such work is done in any street or alley in the city of any of the sorts described in section 40-41 of this Code, without a permit therefor having been issued as required by this article, the director shall, upon the same being brought to his notice, direct the person who did the work or caused it to be done to forthwith remove all of such work and restore the street or alley in question to the state and condition in which it was before such unauthorized work was done. Such order may include a specific direction as to the things to be done to accomplish compliance with it, including the removal of any earth or any other material which, without authority therefor, may have been placed in any street or alley or any part thereof and the replacement of any earth or any other material which may have been removed therefrom or from any part thereof, and it may state the time within which the things therein ordered shall be done. Such order and direction may be in writing or verbal and may be delivered or given either by the director or by any person thereto instructed by him.

(b) If any person to whom an order has been given under this section shall fail, within the time therein stated, to do or cause to be done all of the things therein commanded and ordered, he shall be guilty






of an offense. Each calendar day after the expiration of the time provided in such order within which any of the work therein commanded to be done remains undone shall constitute a separate offense.

(c) The offense defined in this section shall be a separate and distinct offense from the offense defined in section 40-55 of this Code of having done the work in the first instance without a permit therefor, and a conviction or an acquittal of a charge of the violation of either of such two offenses shall not constitute a bar to a prosecution for a violation of the other of them.

(Code 1968, § 41-47)

Sec. 40-47. Appeal from orders or decisions of director.

In every case in which any person is aggrieved and dissatisfied at any order, decision or direction made or given by the director under any of the provisions of this article, he shall have the same right of appeal therefrom, and to the same effect and result, as is provided in section 40-65 of this Code for appeals from the refusal of the director to issue a permit as under this article.

(Code 1968, § 41-48)

Sec. 40-48. Responsibility for violations.

(a) If any private street work is done without a permit therefor or is otherwise done in violation of this article by a partnership or any other unincorporated association, every member of the partnership or of the association shall be guilty of the violation. If any such work is so done by a corporation, the president of such corporation, the general manager or the person in active charge of its operations or business, and every director of such corporation shall be guilty of the violation.

(b) If any private street work is done in violation of this article by a contractor for another person, the contractor and the person for which the work is being done shall each be guilty of the offense.

(c) Laborers, mechanics, and other craftsmen having no other connection with the doing of the work regulated by this article than to be employed thereupon at a wage or salary shall not be guilty of offenses for work done in violation of this article. It shall not be necessary, however, for a complaint for a violation of this article to negative the fact that the person complained of is such laborer, mechanic or craftsman, but the same shall be matter to be shown in defense in any prosecution thereunder.

(Code 1968, § 41-49)





DIVISION 2. PERMIT


DIVISION 2. PERMIT

Sec. 40-55. Required.

Sec. 40-56. Application and accompanying documents generally.

Sec. 40-57. Application when work limited to construction of curbs and gutters.

Sec. 40-58. Style and numbering of application.

Sec. 40-59. Applicant's bond—Generally.

Sec. 40-60. Same—Cash deposit in lieu of bond.

Sec. 40-61. Same—Bond or cash deposit for curb and gutter work only.

Sec. 40-62. Fees.

Sec. 40-63. Issuance or refusal generally.

Sec. 40-64. Issuance for curb and gutter work.

Sec. 40-65. Appeal from refusal.

Sec. 40-66. Contents.

Sec. 40-67. Permit for work in subdivision in advance of plat approval.

Sec. 40-68. Effect of acceptance.

Sec. 40-69. Issuance does not impose liability on director or city.

Sec. 40-70. Issuance does not constitute approval of subdivision or acceptance of streets and alleys therein.

Sec. 40-71. Records to be kept.



It shall be unlawful for any person to do or cause to be done any private street work for which a permit has not been issued by the director. Each day on which any such work is done without a permit therefor having been so issued shall constitute a separate offense.

(Code 1968, § 41-55)


(a) Any person desiring to do or to have done any private street work (except construction of curb and gutter only, with incidental driveway construction, as referred to in section 40-57) shall file with the director an application for a permit therefor, which application shall contain the following information and be accompanied by the following documents:




DIVISION 2. PERMIT


(1) The name, mailing address, and telephone number of the applicant, together with a statement as to whether the applicant is an individual, a partnership or a corporation, and if a partnership the names of all of the partners.

(2) A general statement of the location of the proposed work and a general statement of the nature and scope of the work proposed to be done.

(3) A statement of whether the work has or has not yet been contracted for, and if a contract has been made the name and address of the contractor and the amount of the contract price; but if the work has not yet been contracted for, then a statement of the applicant's estimate of the probable cost of the proposed work.

(4) A list sufficient to identify the several sheets of the plans and drawings accompanying the application and the several parts or documents constituting the written specifications under which the work is proposed to be done.

(5) Complete specifications under which the work is proposed to be done, together with plans and drawings therefor, which shall be in sufficient detail to enable an engineer to determine definitely what is supposed to be done, where it is to be done, and how it is to be done. Such drawings must in any event include a complete profile and a plan on which there is shown the width and other dimensions of any paving, curb or gutter proposed to be built and the location thereof with reference to the center line of any street or streets within which the same are to be placed. Such plan must be "tied" to an established city reference monument, or if there is no city reference monument within a reasonable or practicable distance from the proposed work, then the plan must be tied to some other permanent recognized monument on the ground. If the proposed work is in, or is in connection with, a subdivision which is in the process of development and/or approval by the planning commission, the plan must be appropriately tied to the subdivision map. Such plan or other drawings accompanying the application must show the location of all existing or proposed utility lines, sewer lines, or storm sewers. Every sheet of the drawings and each part or document which is a part of any of the written specifications shall be signed under his seal by a professional engineer duly licensed under the professional engineers licensing law of the state. All of the drawings and written specifications accompanying the application shall be deemed to be a part thereof. Where appropriate and desired, any of the drawings or written specifications herein approved as the city's minimum standards under section 40-43 of this Code may, by appropriate reference thereto, be included in and made a part of the application without the necessity of attaching the same thereto.

(6) The name and address of the professional engineer by whom the drawings and specifications accompanying the application have been prepared, together with a statement as to whether or not the actual performance of the work will be under his supervision.

(7) A statement that if the permit is issued on the application, the proposed work will be done in strict accordance with the plans, drawings and specifications therefor, including amendments and supplements thereto which may be required by the director and agreed to by the applicant before the permit is issued (except for such changes therein as within the general scope, purpose and intent of this article may thereafter be approved in writing by the director).

(8) The date on which it is desired or intended to commence the work and, if any of the work is to be within an existing traveled thoroughfare, the length of time which the applicant proposes to consume in the doing thereof.

(b) Such application, as well as the drawings and specifications accompanying the same, shall be filed in duplicate and both the original and duplicate original of the application itself shall be signed by or on behalf of the applicant and, unless the engineer responsible for the drawings and specifications is himself the applicant, the application shall include a statement signed by him to the effect that the




DIVISION 2. PERMIT


statements therein made as to his connection and intended future connection with the project are true. If the application shows that the actual performance of the work is to be under such engineer's supervision, and if he shall thereafter cease to be so connected with the project, he shall, within 48 hours after the termination of his connection with it, certify the fact of such termination to the director.

(c) The applicant may either be the person at whose instance or for whose purpose the work is proposed to be done, or a contractor employed or intending to be employed to do the actual work, or a licensed professional engineer employed to supervise the work. If such licensed professional engineer is himself the applicant, the application shall contain a statement by him that he has been so employed and a statement of the name and address of the person at whose instance or for whose purposes the work is to be done, and he shall sign the application under his official seal.

(Code 1968, § 41-56; Ord. No. 95-104, § 1, 1-25-95)

Sec. 40-57. Application when work limited to construction of curbs and gutters.

Any person desiring to do or to have done in the city any private street work consisting of nothing other than the construction of curbs and gutters (including driveway construction incidental thereto), instead of filing the detailed application with accompanying drawings, which is required under section 40-56 of this Code, may simply file with the director an application for a permit for such work, which application shall be sufficient if it shows who desires to do the work, by whom it is intended to be done, and is sufficient to indicate the scope and extent of the work intended to be done. Such application need not include any plans, drawings or specifications, unless a plan or drawing is necessary to the description of the work proposed to be done, and if the work is to be done by a duly licensed and bonded sidewalk and curb and gutter contractor, it need not indicate that any licensed professional engineer has any connection with the project. It shall, however, contain an unconditional undertaking that the applicant will observe and comply with any directions or instructions given him by the director incident to the work or the sufficiency of the completion thereof to the end that, if a permit is issued therefor, the director shall have absolute power to require the applicant to do all of those things and none other than those things which the director considers necessary, incident to the work proposed.

(Code 1968, § 41-57)

Sec. 40-58. Style and numbering of application.

Every application for a permit under this division shall be styled "Application for Permit for Private Street Work" and, upon filing, shall be appropriately numbered by the director in such manner that future reference thereto by number and style shall be sufficient to identify it.

(Code 1968, § 41-58)

Sec. 40-59. Applicant's bond—Generally.

(a) If the permit application under this division is for the doing of work within the portion of an existing street which is actually being used by the public, no permit shall be issued thereupon until there has been filed with the director a bond to secure the city that the proposed work will be done in accordance with the permit, application and plans and specifications, and securing the city against loss, damage, claim, or liability in connection therewith, which bond shall comply with the following requirements of this section as to the terms, conditions and execution thereof.

(b) The bond required by this section shall be in a penal sum equal to the total estimated cost of the improvements to be constructed (including design and engineering costs) plus an additional ten




DIVISION 2. PERMIT


percent of such amount. No such bond shall be required for work to improve an alley for private access pursuant to section 40-346

(c) The bond required by this section shall be in favor of and solely and exclusively for the use and benefit of the city.

(d) The bond required by this section shall describe by reference to the number of the application, together with such other brief descriptive matter as is necessary, the work proposed to be done or to be covered by the permit in connection with which the bond is given.

(e) The bond required by this section shall be conditioned that the work therein referred to will be done and performed in strict and full accordance with the terms and provisions of the application and the permit and in strict accordance with the plans and specifications therefor; and that if any of such work is not done in accordance therewith, or if any materials not in accordance therewith are used in the process of such work, such failure and default will be promptly remedied, and any defective material or work torn out and removed or replaced with material and by workmanship in accordance with the terms of the application, permit and plans and specifications without cost or expense to the city; and that if such is not done within a reasonable time after demand therefor upon the principal by the city, the principal and surety on such bond will (within the penal sum of the bond) be held and firmly bound to the payment to the city of the reasonable cost and expense incurred by the city either in tearing out and removing the defective work entirely and restoring the street to its original state, or in replacing the same with work in accordance with the permit, or in completing and perfecting any work imperfectly or incompletely done; and shall provide that the certificate of the director to the reasonable necessity for and the cost of any work so done by the city shall be conclusive and binding upon the principal and surety in the absence of clear, convincing and unmistakable proof that his action in so certifying is fraudulent, arbitrary or capricious.

It shall further be conditioned that the principal and surety indemnify and agree to fully indemnify and save harmless the city and its officers from any and all demand, liability or claim, no matter by whom asserted, arising from or in any manner incident to the doing of any work pursuant to or under color of such permit or the construction of any of the paving or other street work authorized thereby. It shall, however, provide that the liability of the principal and surety shall not include liability to indemnity against causes of action asserted by persons arising from the grade or location of the pavement or other structure built in the street, or from defects or alleged defects therein occurring or existing after the date of the certificate of acceptance of the work hereinafter provided for.

The principal shall further covenant that if the work is not completed within the required number of days after the commencement thereof, the principal, but not the surety, will be liable to the city on account of and for such delay at the rate of $150.00 per day for each day that the completion of the work be delayed beyond the time allowed therefor in the permit.

Such bond shall provide that within the general scope and spirit of the work covered by the permit, the director may without notice to or consent of the surety permit changes in the actual plans and specifications therefor, without in any wise affecting the liability either of the principal or surety.

(f) Such bond shall be upon a form to be prepared and approved by the city legal department and may be executed by the applicant or by the contractor proposing and intending to do the actual work, or if the application is not made by the person at whose instance or for whose purpose the work is proposed to be done, such person may nevertheless execute such bond as principal. It shall be executed also by one corporate surety, which surety shall be a corporation qualified and licensed by the insurance licensing authority of the state under and pursuant to the provisions of articles 4969 to 4972, inclusive, of the Texas Revised Civil Statutes.

(g) If the surety on such bond is a company appearing on the then current list of approved sureties of the United States Treasury Department, the bond need not be accompanied by any proof of the




DIVISION 2. PERMIT


qualification and license as aforesaid of such company, but if such bonding company's name does not appear upon such treasury department's current list there shall be submitted, along with the bond, a certificate from the board of insurance commissioners of the state, bearing date no more than ten days prior to the date of the bond, evidencing the fact that such surety is so qualified and licensed by the state. Such bond shall in any event be accompanied by an appropriate power of attorney evidencing the authority of the issuing agent or attorney to execute the bond for the company.

(h) A bond upon such form so executed shall be accepted on behalf of the city by the director, and his acceptance noted thereupon. If he is in doubt as to the manner or form of the execution thereof, he may submit the same to the city legal department for its approval as to form and execution before he accepts it. Such bond, together with the proof of the authority of the agent to execute the same, and the proof of the surety's qualifications and license if the surety is not on the treasury department's current list, shall be attached to the city's duplicate original of the permit and become a part of the permanent record in connection therewith.

(i) When the work covered by the permit has, in the opinion of the director, been completed in substantial accordance with the plans and specifications therefor, the director shall, at the request either of the principal or of the surety on such bond, deliver to either or both of them a certificate to such effect. Such certificate shall, in favor of the surety upon such bond, be conclusive proof of the contents thereof, but shall not relieve the principal upon the bond from liability for failure of or defect in the work arising from failure to have fairly and substantially complied in any material respect with the specifications.

(Code 1968, § 41-59; Ord. No. 99-379, §§ 4, 5, 4-21-99)

Sec. 40-60. Same—Cash deposit in lieu of bond.

In any instance in which, by the provisions of section 40-59 of this Code, a bond is required to be given, there may instead be deposited with the director in cash an amount equal to the required penal sum of the bond, which deposit shall secure the city to the same purpose, intent and effect as the bond prescribed by section 40-59 of this Code. When the director is of the opinion that the work has been completed in accordance with the plans and specifications, he shall so certify as provided in section 40-59 of this Code and the deposit referred to shall be returned to the applicant or upon the applicant's order.

(Code 1968, § 41-60)

Sec. 40-61. Same—Bond or cash deposit for curb and gutter work only.

The bond required in connection with any permit for curb and gutter work only, issued as provided in section 40-64 of this Code, shall be conditioned and executed in accordance with the requirements of section 40-59 of this Code, and shall be in such amount as the director considers necessary to protect the city against having to go in and finish up or undo work begun or done under the permit. Any person to whom such a permit is to be issued may, instead of furnishing such bond, deposit with the director in cash the amount so deemed necessary by the director, to be returned to the applicant after the work has been completed to the satisfaction of the director, or upon surrender of the permit before commencing any work thereunder. If the work is to be done by a duly licensed and bonded sidewalk and curb and gutter contractor, no separate bond shall be required under this division or any cash deposit in lieu thereof.

(Code 1968, § 41-61)




DIVISION 2. PERMIT


Sec. 40-62. Fees.

(a) No fee shall be charged upon any permit or application for the construction of any pavement (including curb and gutter construction incident thereto) which includes a reinforced concrete base, the city council here declaring that the advantage and benefit to the city from the construction of that type of pavement is such as to fully warrant the handling by the city, without cost to the person having such work done, the necessary application, investigation, inspection, etc. Upon permits for other paving work or for curb or gutter construction as governed by this article, fees are hereby fixed and established as follows, to be collected by the director before the permit is issued:

(1) For curb and gutter (or either), the permit fee stated for this provision in the city fee schedule per lineal foot of the curb and gutter (or either) to be constructed, but excluding from the computation so much thereof as is within the intersection of any two streets.

(2) For any pavement (except pavement involving a reinforced concrete base) the fee stated for this provision in the city fee schedule per running or lineal foot of street to be paved, but excluding from the computation such work as is to be done within the intersection of any two streets.

(3) When the pavement is to be constructed without curb or gutter, the fee charged shall be only the fee stated for this provision in the city fee schedule per running foot for the pavement as provided above, but where pavement is with curb and gutter, the fee shall be stated for this provision in the city fee schedule per running foot of pavement plus the fee stated for this provision in the city fee schedule per lineal foot of curb and gutter.

(b) The minimum fee, where any fee at all is required by the terms of this section, is stated for this provision in the city fee schedule upon any one permit.

(c) The fees prescribed by this section are established to cover the expense or a part of the expense to the city incident to the examining of the application, investigation in connection therewith, the inspection of the work as the work progresses.

(Code 1968, § 41-62; Ord. No. 2011-1168, § 13, 12-14-2011)

Cross reference— Refund of permit fees paid to department of public works and engineering, §

2-285.

Sec. 40-63. Issuance or refusal generally.

(a) If the director finds that the plans and specifications for the proposed work for which a permit is sought under this division are sufficient and are in accordance with the purpose, intent and provisions of this article, he shall notify the applicant, and subject to the provisions of this division he shall issue and deliver to the applicant a permit for the work desired to be done in accordance with the provisions of this article.

(b) If the plans or specifications for work for which a permit is sought under this division are not sufficient or do not contemplate or describe work in accordance with the city's minimum standards or are not adequate to the place and purpose in question, the director shall communicate to the applicant or to the applicant's engineer his objections thereto, permitting and agreeing to such changes in the original drawings and specifications as may be sufficient to meet his objections and after such changes have been agreed to by the applicant and by the applicant's engineer, the director shall, subject to this division, issue the permit.




DIVISION 2. PERMIT


(c) The director shall not, in any event, issue a permit for the construction of a pavement which includes curb and gutter or curb, unless suitable and sufficient drainage and drainage facilities are already in existence, or the construction thereof is provided for in the plans and specifications for the work covered by the application. Similarly, he shall not issue a permit upon any application which contemplates pavement of a general sort or type (including width thereof, thickness and reinforcing thereof) which, in his opinion, is inadequate or unsuitable to the area or place where it is proposed to be placed, notwithstanding that the same, as applied for, is in accordance with the minimum standards approved by this article.

(d) If the plans and specifications (with such changes therein as have been required by the director and approved by the applicant and the applicant's engineer) do not meet the standards and requirements set up by this article, the director shall refuse to issue the permit applied for and shall, upon the duplicate original of the application or a paper attached thereto and suitably identifying the application, certify the fact of his refusal, together with such statement as he sees fit to make of the reasons therefor, notifying the applicant or the applicant's engineer to such effect and delivering such duplicate of the application with his certificate of rejection to either of them who may request it. At the same time, he shall similarly certify the fact of his refusal upon the other original of the application, which shall remain as a permanent file and record in his office.

(Code 1968, § 41-63)

Sec. 40-64. Issuance for curb and gutter work.

Upon an application under section 40-57 of this Code for curb and gutter work, the director shall make such investigation and inquiry as he deems necessary, and if it appears to him that the work referred to may be done without damage or injury to the street or to the rights of any other abutting property owners or of any other person who may have any interest or right related thereto, he shall grant a permit therefor. The procedure in the matter of actual issuance of such permit, retention of the identical duplicate thereof and numbering and identification thereof shall be the same (except as herein expressly provided otherwise) as that provided in this division for other permits.

(Code 1968, § 41-64)

Sec. 40-65. Appeal from refusal.

(a) If the director refuses to issue a permit applied for under any provision of this division, the applicant may, within 30 days after such refusal is communicated to him, appeal therefrom to the city council without other formality than filing with the city secretary a letter in duplicate signed by the applicant sufficient to show the fact of the refusal of his application, the reason (if any) stated therefor by the director, and the applicant's desire to appeal from such refusal to the city council. The city council shall thereafter, upon such investigation and the hearing and considering of such evidence as it deems proper, either sustain or overrule the director's action, by motion, resolution or ordinance. If the council overrules the director, he shall thereupon issue the permit, noting thereon and on the city's duplicate original thereof, the fact that it is issued pursuant to council's action in overruling his refusal to grant it in the first instance.

(b) The action and decision of council shall be final; provided, the city council shall not order the issuance of a permit for any street work providing for the doing of work of a sort which is not adequate and suitable for the place to which and the purpose for which it is proposed to be done, taking into consideration the public welfare and safety, and the nature and density of traffic which may be expected to use the street in question.




DIVISION 2. PERMIT


(Code 1968, § 41-65)

Sec. 40-66. Contents.

A permit issued under this division shall state that the applicant (or the applicant's engineer) must notify the director when the work is commenced. If the application includes any work to be done within an existing traveled thoroughfare and is of a sort which, in the director's opinion, will interfere with or inconvenience the public while the work is in progress, then the permit shall state that the work must be completed within the length of time, after the commencement thereof, stated by the applicant as required by paragraph (8), subsection (a), of section 40-56 of this Code.

(Code 1968, § 41-66)

Sec. 40-67. Permit for work in subdivision in advance of plat approval.

Any person intending to subdivide or develop as a subdivision any unplatted area within the city, in advance of submitting his proposed plat to the planning commission may, if he desires to do any of his street development work, make an application to the director containing those essentials which are stated in section 40-56 of this Code, and the director may, upon his approval of the proposed work and the payment of the fees required by this division, issue a permit therefor in all respects the same as if the work were to be done on a street as defined in section 40-41 of this Code, but the issuance of such permit shall not constitute an approval of any proposed plan or plat of the addition, and shall in no manner interfere with the right of the planning commission to withhold its approval thereof or to require changes therein before the same is approved.

If any person shall do any such work in any such area without first having obtained the permit herein provided for, the planning commission shall not thereafter approve the plan of such subdivision until there is furnished to it a certificate by the director that all of the street work in such subdivision is in accordance with standards which are at least equal to the minimum standards provided in this article and are of a sort which the director would have issued a permit if one had been applied for.

(Code 1968, § 41-67; Ord. No. 95-104, § 1, 1-25-95)

Sec. 40-68. Effect of acceptance.

(a) Any person to whom a permit is issued pursuant to any of the provisions of this division will, by his acceptance of such permit (which acceptance shall be conclusively presumed if, after the permit is issued, he does any of the work contemplated or provided for in the application), undertake or promise that the work covered by the permit and application will be done in full and exact accordance with the provisions of the application and of the plans and specifications, if any, therefor, and that no other work than that covered by the permit will be undertaken pursuant thereto. He will further thereby agree that, during the course of the work, every instruction and order of the director, or of any inspector or other city employee delegated thereto by the director, for stopping any work which is being done in a manner contrary to the plans and specifications or the application, correcting and replacing any work not in compliance therewith or completing any work necessary to accomplish compliance therewith, will be promptly and immediately observed.

(b) Without limiting the obligation of the applicant to faithfully adhere to the plans, drawings and all of the specifications, he will, by the acceptance of a permit, particularly undertake that no materials will be used in the work except those which, under the appropriate provisions of the city's minimum standard of specifications, have been tested and approved by an approved testing laboratory as




DIVISION 2. PERMIT


therein provided; and that if any materials not so tested and approved are used, he will, upon such violation being discovered by him or brought to his notice, promptly remove and tear out the work in which such untested or unapproved materials were used and replace the same by work of proper, tested and approved materials.

(Code 1968, § 41-68)

Cross reference— Subdivisions, Ch. 42.

Sec. 40-69. Issuance does not impose liability on director or city.

By virtue of the issuance of any permit required by this division neither the director nor the city shall be or become liable or responsible in any way either to the applicant, the contractor, if any, for the work, or to any other person for the sufficiency, correctness or suitability of the plans or specifications or the project itself, and the work done pursuant to such permit shall be the private venture, work and responsibility of those interested in it, and the city shall not be liable directly or indirectly to any laborer or workman employed thereupon or to the furnisher of any materials for use therein, or to any person having a cause of action arising directly or indirectly from the doing or prosecution of the work or the construction of the pavement or other facilities accomplished thereby.

(Code 1968, § 41-69)

Sec. 40-70. Issuance does not constitute approval of subdivision or acceptance of streets

and alleys therein.

If a permit issued under this division is for work in a subdivision not yet approved by the planning commission, the issuance of the permit shall not constitute an approval of the subdivision or an acceptance of streets or alleys shown on the subdivision map, and neither the city nor the planning commission shall be in any way estopped by virtue of the issuance of such permit.

(Code 1968, § 41-70)

Sec. 40-71. Records to be kept.

If the director issues a permit under this division, including the issuance of a permit pursuant to council action as provided in section 40-65 of this Code, he shall attach to the city's original of the application the bond, if required under this division, filed with and approved by him, together with an exact copy of the permit, signed by him, and such duplicate of the permit, such bond and the entire application therefor shall be and continue a permanent file and record in his office.

(Code 1968, § 41-71)




ARTICLE III. CONSTRUCTION OR REPAIR OF SIDEWALKS, DRIVEWAYS, CURBS AND GUTTERS


ARTICLE III. CONSTRUCTION OR REPAIR OF SIDEWALKS, DRIVEWAYS, CURBS AND

GUTTERS [3]

Sec. 40-82. Order of council generally.

Sec. 40-83. Notice to property owners when work ordered.

Sec. 40-84. Duties of abutting property owners; failure of property owners to have work done.

Sec. 40-85. Performance of work by city at request of property owner.

Sec. 40-86. Permit for construction of driveways.

Sec. 40-87. Driveway openings under city's street improvement contracts.

Sec. 40-88. Permit to construct or repair sidewalks, curbs or gutters.

Sec. 40-89. Establishment of line and grade.

Sec. 40-90. Altering lines or grades when putting down permanent street pavement.

Sec. 40-91. Required materials.

Sec. 40-92. Specifications for cement work.

Sec. 40-93. Specifications for sidewalks of other than cement or concrete.

Sec. 40-94. Contracts for construction not to provide longer time than fixed by council.

Sec. 40-95. Contractor's bond.

Sec. 40-96. Deviation from council's order.

Sec. 40-97. City may refuse to pave streets until sidewalks and curbs laid.

Sec. 40-98. Article applies to construction in connection with erection of buildings.

Sec. 40-99. Violations.


Sec. 40-82. Order of council generally.

Whenever it shall be found necessary by the city council that sidewalks, driveways, curbs and gutters, or any of them, be constructed, reconstructed, repaired or brought to grade along or in front of any real estate abutting upon any public street in the city, the city council shall designate the lot, block, street or community in which work is deemed necessary and shall order the construction, reconstruction, repair or regrading of such improvements, prescribe the width of the sidewalks, the kind and character of the material out of which they shall be built, the building of all such improvements according to the line and grade as fixed by the city engineer and the specifications adopted by the city, and designate the time within which such improvements shall be completed.

(Code 1968, § 41-82; Ord. No. 90-635, § 110, 5-23-90)

Sec. 40-83. Notice to property owners when work ordered.

When the city council shall have ordered the construction, reconstruction, repair or regrading of sidewalks, driveways, curbs and gutters as provided for in this article, it shall be the duty of the city





engineer to serve notice that such improvements must be laid by the owners of the abutting property, showing the width of the sidewalks, and the materials out of which the same shall be constructed, and the time within which the improvements shall be completed, and the estimated cost thereof per square or lineal foot. Such notice may be served by delivering a copy thereof to the owner of the abutting property or to any tenant of the owner living on the particular real estate included in the order, or if the property is unoccupied and the owner or his authorized agent cannot be found, then notice may be given by posting a copy thereof upon the property, and such officer shall make due return to the city engineer stating the manner and time of service thereof, which return when produced in court shall preclude any question as to whether or not sufficient notice has been given. In lieu of the above notice, the city engineer may cause notice to be mailed to the post office address of the owner, and the mailing of such notice shall constitute sufficient notice, whether received or not, or notice may be given by publishing a brief summary of the order once in some daily newspaper published in the city, of general circulation, addressed "Sidewalk Improvements: To Whom It May Concern," at least 30 days before the improvement is required to be completed, and such publication in the paper shall be deemed a sufficient notice. Notice will be sufficient if given to the proper owner in any one of the ways above indicated.

(Code 1968, § 41-83; Ord. No. 90-635, § 110, 5-23-90)

Sec. 40-84. Duties of abutting property owners; failure of property owners to have work

done.

It shall be the duty of every owner of real estate in the city, abutting on any public street in the city, in front of which real estate or along which street the city council may order the construction, reconstruction or repair, or bringing to grade of sidewalks, driveways, curbs or gutters, or any of them, to cause the same to be constructed, reconstructed or repaired or bring the same to grade, as the case may be, in accordance with the terms of such order, the specifications set out in this article and on the line and grade as established by the city engineer for the particular block, street or community in which the real estate may be situated. Such property owners shall cause to be constructed such improvements in front of their respective property after the giving of notice as prescribed in this article, within the time fixed by the city council. After the expiration of the time indicated in the notice to construct, reconstruct, repair or regrade, if the abutting owner shall not have built such improvements as ordered and indicated in the notice, then the city shall have the right to construct the same in accordance with the order for the same, and the standard specifications hereinafter set out, under the supervision of the city engineer, and may advertise for bids or may itself construct such improvements, at the expense of the abutting property owner, and may recover a personal judgment in any court having jurisdiction of the amount for the cost and expense in constructing, reconstructing, repairing or regrading such sidewalks, driveways, curbs and gutters, with ten percent additional for attorneys' fees, and may, by ordinance, fix a lien on the property improved.

(Code 1968, § 41-84; Ord. No. 90-635, § 110, 5-23-90)

Sec. 40-85. Performance of work by city at request of property owner.

Any property owner or his duly authorized agent, who shall desire the city to construct for him any sidewalk, driveway, curb or gutter, or to reconstruct, or repair or regrade the same, shall have the right to petition the city council therefore, asking that such work be performed at the cost and expense of the petitioner, offering to defray all costs of advertising for bids, if any, letting contract and cost of grading, constructing and finishing, and designate the terms upon which he can pay. Upon receiving such petition, the same shall be referred to the city engineer, who shall determine forthwith the line and grade, make a record thereof and estimate the cost of construction, including the advertising for bids, if necessary, and report to the council. Should the council see fit to grant such petition, it shall determine the material out of which the improvements shall be constructed and the manner of payment therefor. Before any work or sidewalk, driveway, curb, or gutter construction shall be undertaken by the city for any property owner,





such property owner shall comply with all requirements of the city as to payment therefor, either in cash in advance, or part cash and the giving of security for the unpaid balance. The city shall have the right to award any quantity of work under this section to a general contractor whose bid shall be accepted by the council as the lowest and best secure bid for the construction of sidewalks, driveways, curbs and gutters during a stipulated time, not to exceed one year.

(Code 1968, § 41-85; Ord. No. 90-635, § 110, 5-23-90)

Sec. 40-86. Permit for construction of driveways.

(a) No person shall construct, or cause to be constructed, any driveway connecting private property with a public street without first obtaining a written permit therefor from the city engineer.

(b) Upon receipt of an application for a driveway permit, the city engineer shall make a determination as to whether the driveway applied for is necessary to provide reasonable access to the private property consistent with the safety and convenience of the public, taking into account the following matters:

(1) The nature and volume of traffic on the street on which the private property abuts.

(2) The dimensions and type of construction of the street on which the private property abuts.

(3) The effect that the passage of vehicles to and from the private property will have on the safety of the traveling public and on the movement of traffic in the street to which the driveway connects.

(4) The use to be made of the private property.

(5) The dimensions of the private property, and the type and location of improvements thereon or to be placed thereon.

(6) The extent of the access which the private property has or will have to other public streets, if any.

(c) After making such determination, the city engineer shall grant or refuse the application in accordance with the following rules:

(1) He shall refuse to issue a permit for a single driveway opening unless it shall have been found to be necessary for reasonable access.

(2) If the application is for more than one driveway opening into the same premises, he shall allow no more such openings than the minimum number necessary to provide reasonable access.

(3) He shall refuse to issue a permit for any driveway opening as to which it has been found that the proposed use of the driveway would create an extraordinary traffic hazard or would excessively interfere with the normal use of the street right-of-way.

(4) Every permit issued shall specify the maximum width of the driveway opening for which the permit is granted and such width shall be no greater than the minimum necessary to provide reasonable access.

(5) If a permit is granted for more than one driveway opening into the same premises, it shall specify that each such opening shall be separated from the others by a distance of not less than 20 feet, and that an upright curb must be constructed along the edge of the area of separation next to the improved portion of the street.

(Code 1968, § 41-86; Ord. No. 90-635, §§ 110, 111, 5-23-90; Ord. No. 93-514, § 77, 5-5-93)





Sec. 40-87. Driveway openings under city's street improvement contracts.

So far as they may be applicable, the standards and procedures above set forth in section 40-86, of this Code, including the requirements for a written permit for each opening, shall also be used by the city engineer in allowing driveway openings under the city's street improvement contracts; provided, however, the specifications to any such contracts may authorize the replacement of previously existing driveways without the necessity of obtaining a permit and, to the extent that they do so, no permit will be required.

(Code 1968, § 41-87; Ord. No. 70-932, § 1, 6-16-70; Ord. No. 90-635, § 110, 5-23-90)

Sec. 40-88. Permit to construct or repair sidewalks, curbs or gutters.

It shall be unlawful for any person, except a person laying permanent street pavement under contract with the city, to construct, reconstruct, repair or regrade any sidewalks, curbs or gutters in the city without obtaining a permit therefor from the city engineer, which permit shall be kept conspicuously displayed within 20 feet of the work during the prosecution thereof. The application for a permit shall be made to the city engineer, stating the nature and extent of the proposed improvements with the location by lot, block and street number. The city engineer shall issue no permit to any person, if such person has constructed, reconstructed or repaired any sidewalk or curb and gutter on any line or grade other than that given by the city engineer, or in any other manner than as provided in the ordinances of the city, until such defective work shall have been rebuilt or reconstructed in strict accordance with the city ordinances, nor shall any permit be issued hereunder nor under any order of the city council hereafter passed ordering the construction, reconstruction, repair or bringing to grade of sidewalks, curbs and gutters, until the city engineer has established the lines and grades for the proposed work and made a permanent record thereof. The fee stated for this provision in the city fee schedule shall be charged for the issuance of each permit and for the staking of such work.

(Code 1968, § 41-88; Ord. No. 90-635, § 110, 5-23-90; Ord. No. 2011-1168, § 13, 12-14-2011)

Cross reference— Refund of certain permit fees paid to department of public works and

engineering, § 2-285.

Sec. 40-89. Establishment of line and grade.

All petitions for the creation of sidewalk districts or for the building of sidewalks under the supervision of the city, or matters of constructing, reconstructing, repairing or regrading sidewalks, curbs, gutters or driveways, whether initiated by petition or by action of the city engineer, shall be referred to the city engineer, whose duty it shall be to establish forthwith the line and grade upon which any sidewalk, driveway, curb or gutter shall be built.

(Code 1968, § 41-89; Ord. No. 90-635, § 110, 5-23-90)

Sec. 40-90. Altering lines or grades when putting down permanent street pavement.

The city hereby expressly reserves the right, when putting down a permanent street pavement, either by the original construction or reconstruction, to change or alter the lines and grades of such permanent pavement and of the sidewalks, driveways, curbs and gutters on the street, when in the opinion of the city council such change is necessary for the proper paving or drainage of the street, and without liability on the part of the city by reason of such change. In the event that a sidewalk or driveway, the line or grade of which is changed, is in good condition and does not, in the opinion of the city council, require entire reconstruction, the owner thereof shall be given notice, as provided for in section 40-83 of this Code, to





break such sidewalk or driveway back to a point fixed by the city engineer and to remove the broken portion and reconstruct such portion on the line and grade determined by the city engineer, at the cost of such abutting owner. In the event such owner shall fail or refuse to obey the order of the city council, he shall be subject to all the penalties of this article, and the city council shall have the right to have such breaking and reconstructing to grade of such sidewalk or driveway done by a paving contractor, or other person, at the expense of the abutting owner.

(Code 1968, § 41-90; Ord. No. 90-635, § 110, 5-23-90)

Sec. 40-91. Required materials.

Sidewalks shall be constructed of either cement, concrete, asphalt or other durable material as the council may designate, and the order of the city council ordering the construction shall designate the materials to be used. No driveways, curbs or gutters shall be built of other material than cement or concrete.

(Code 1968, § 41-91)

Sec. 40-92. Specifications for cement work.

The city hereby adopts and approves as standard specifications for cement sidewalks, driveways, curbs and gutters the following:

(1) Materials. Cement or concrete sidewalks, driveways, curbs and gutters shall be built of Portland cement, fine aggregate and coarse aggregate.

(2) Fine aggregate. Fine aggregate shall consist of washed sand having clean, hard, durable, uncoated grains, free from soft or flaky particles or other injurious matter, shall be well graded from coarse to fine and, when tested by standard laboratory methods, shall meet the following requirements:

Percent Retained on by weight

3/8″ screen .....0%

¼″ screen .....0—5%

50 mesh sieve .....70—95%

100 mesh sieve .....95—100%;

Weight removed by elutriation test not more than 2%.

When subjected to the color test for organic impurities, fine aggregate shall not show a color darker than the standard color.

Aggregates from different material sources, or aggregates from the same source having different grading or other physical characteristics, shall be stock piled separately and batched independently. Aggregates shipped in dirty cars or containers, or that which becomes mixed with weeds, dirt or other foreign material, or that which is not uniform or the component parts of which have become segregated will be rejected.

(3) Coarse aggregate. Coarse aggregate shall consist of crushed stone, gravel or oyster shell, having hard, clean, strong, durable pieces free from excessive adherent coatings, free from salt





and alkali, and, when tested by standard laboratory methods, shall conform to the following requirements:

The maximum percentage of deleterious substances shall not exceed the following values by weight:

Removed by decantation .....4%

Shale .....0.25%

Clay lumps .....0.25%

Soft fragments .....3%

Other local deleterious substances, such as friable pieces .....3%

The sum of the percentages of all above constituents shall not exceed .....5%

The wear for crushed stone or gravel shall not exceed the following percentages:

Crushed stone .....7%

Gravel .....17%

Coarse aggregate shall conform to the grading requirements given below when tested on standard round-opening screens, and shall be well graded within the limits specified. Aggregates of different classes shall not be mixed except on the written permission of the engineer. Changes in the classes of aggregate being used while the work is in progress will be permitted upon due notice by the contractor to the engineer of his intentions and the fulfillment of the necessary requirements to comply with these specifications. Aggregates in which different size particles have become segregated due to improper stock-piling, improper handling, or for other reasons, shall before being used, be mixed to conform to the grading requirements hereinafter specified, and shall be uniform.

Coarse aggregate (crushed stone or gravel)

Percent Retained on by weight

3″ screen

2½″ screen .....0—5

1½″ screen .....5—40

¼″ screen—Nnot less than .....90

No. 8 sieve—Not less than .....95

Coarse aggregate (oyster shell)

Percent

Retained on by weight

2½″ screen

1½″ screen .....5—20





¾″ screen .....20—50

¼″ screen .....65—90

No. 8 sieve .....88—100

Aggregates from different material sources, or having different characteristics, shall not be mixed either in piling or batching, except by special permission from the engineer. Aggregate shipped in dirty cars or containers, or that becomes mixed with weeds, dirt or foreign material, or that is not uniform, or the component parts of which have become segregated will be rejected.

(4) Concrete body. The concrete shall be composed of standard Portland cement or an approved high early strength cement, fine aggregate, coarse aggregate and water, mixed and proportioned according to the workability factor method of design, and in accordance to definite specification requirements herein outlined.

The concrete shall contain not less than four sacks of cement per cubic yard and not more than eight gallons of water net per sack of cement when gravel coarse aggregate is used.

The concrete shall contain not less than five sacks of cement per cubic yard and not more than eight and one-half gallons of water net, per sack of cement when oyster shell coarse aggregate is used.

The concrete shall be uniform and workable. The amount of coarse aggregate (dry loose volume) shall not be more than 0.85 cubic feet per cubic foot of concrete.

The net amount of water will be the amount of water added at the mixer plus the free water in the aggregates, plus or minus the absorption of the aggregates, based on a 30 minute absorption period. No water allowance will be made for evaporation after batching.

(5) Foundation. The foundation shall consist of firm, hard soil from which all vegetable matter and other loose material have been removed. In the event it is necessary to build up the foundation, the same shall be done with selected earth or other material satisfactory to the city engineer and shall be built up and well tamped in six-inch layers and such filling shall extend at least one foot on each side of the walk.

(6) Location and grade. All sidewalks, driveways, curbs and gutters shall be built as located by the city engineer, and on the grade established by him. At street intersections and at other places, the curb and gutter may be built on a radius, as the city engineer may direct, and the contractor in charge of the work shall receive no extra compensation on account of such work being on a curved alignment. Where driveways occur into private property across the parkway between the curb line and the sidewalk, such driveways shall be built with a return curb, having a vertical face and joining the main curb of the street with a two-foot radius.

(7) Combined curb and gutter.

a. Thickness. The standard combined curb and gutter shall consist of a curb six inches in thickness and 15¾ inches in height combined with a gutter eight inches in thickness and 18 inches in width, all built as a monolithic structure. The outer corner of the curb shall be rounded to a three-inch radius.

b. Templates. The curb and gutter shall be constructed with a one-eighth-inch metal template placed at six foot intervals. These shall be removed before placing the topping.

c. Mortar topping. The mortar topping shall be a mortar composed of one part of Portland cement and 1½ parts of fine aggregate thoroughly mixed dry before the addition of water.





The face board and templates shall be removed as soon as the concrete has set sufficiently to stand up and the mortar topping shall then be immediately applied. The topping shall be ¾-inch thick on the top of the curb and the top of the gutter and shall be ½-inch thick on the face of the curb.

d. Finishing. The mortar topping shall be given a smooth trowel finish and shall have a ¼-inch "finish joint" at the exact location of each template joint.

The back edge of the curb and the front edge of the gutter shall be rounded with a one-half-inch edging tool.

The back of the gutter at the face of the curb shall be finished with a one-inch radius.

The curb and gutter surface shall be lightly brushed to remove all trowel marks.

e. Expansion joints. An approved type of commercial pre-molded expansion joint one-inch thick shall be placed at the end of all radius returns at street intersections and where meeting existing inlets.

The joint materials shall be cut from one piece of material to conform to the shape of the curb and gutter.

(8) Sidewalks.

a. Thickness. Standard sidewalks shall be composed of not less than 4¼ inches of concrete and ¼ inch of mortar topping, making a total of 4½ inches. The maker's name shall be stamped on each sidewalk built by him in letters not less than 1¼ inches high and ¼-inch deep.

b. Expansion joints. An approved type of commercial pre-molded expansion joint ½-inch thick shall be placed where two lines of sidewalks intersect, where meeting existing walk at intervals of not more than 36 feet throughout the entire length of the sidewalk. At all places where sidewalks meet curbs, a one-inch approved type of commercial pre-molded expansion joint shall be provided. An expansion joint material shall extend entirely through the sidewalk, and shall extend the entire width of the sidewalk.

c. Mortar topping. The mortar topping shall be a mortar composed of one part Portland cement and 1½ parts of fine aggregate thoroughly mixed dry and may be applied wet or dry.

All topping must be applied before the concrete has been in place not more than ten minutes.

In the use of dry or monolithic topping, the topping must be applied while excess water is on the concrete and must be worked to a plastic mixture by the use of wood floats or darbies. The addition of water to the dry mortar topping will not be allowed unless there is insufficient excess water in the concrete to thoroughly wet the dry mortar.

The mortar topping shall be smoothly struck off by use of a wood strike board riding on top of the forms. The surface shall then be smoothly finished with a wood hand float working in a circular or rotary motion.

The edges of the walk shall be rounded off with a one-half-inch radius edging tool.

The walk shall be marked off one-eighth-inch deep at a spacing equal to the width of the walk with a joint tool equal in width to the width of the edging tool.

(9) Driveways.





a. Thickness. Standard concrete driveways shall be composed of not less than five and three-quarter inches of concrete and one-quarter-inch of mortar topping, making a total of six inches.

On streets having curb and gutter, the driveway shall have a monolithic curb on each side, six inches in width and a varying height, meeting the height of the curb at the street and meeting the sidewalk elevation. This curb shall have at least a two-foot radius joining with the street curb and shall have a wet mortar topping one-half-inch thick.

b. Expansion joints. An approved type of commercial premolded expansion joint material one inch thick and extending entirely through the driveway for its full width and depth shall be placed at the sidewalk intersection.

c. Mortar topping. The mortar topping shall be a mortar composed of one part Portland cement and one and one-half parts of fine aggregate thoroughly mixed dry and may be applied wet or dry.

All topping must be applied before the concrete has been in place not more than ten minutes.

In the use of dry monolithic topping, the topping must be applied while excess water is on the concrete and must be worked to a plastic mixture by the use of wood floats or darbies. The addition of water to the dry mortar topping will not be allowed unless there is insufficient water in the concrete to thoroughly wet the dry mortar.

d. Finishing surface. The mortar topping shall be struck off with a wood strike board to a smooth finish. The surface shall then be smoothly finished with a wood darby and a hand float working in a circular or rotary motion.

(10) Protecting new work. After sidewalks, driveways, curbs and gutters have been completed they must be protected from injury by keeping traffic off for at least five days, and from the sun by a covering of sand, boards, building paper or canvas, and must be sprinkled daily for at least two days after completion.

(11) Miscellaneous. In general, all forms shall be smooth and the work shall be done in a workmanlike manner giving straight lines where required, true planes and a smooth finish properly brushed to remove marks and shall be in every way satisfactory to the city engineer. When the work is completed, all curbs shall have earth thoroughly filled in and tamped against the back; all rubbish, surplus excavated material, forms and other materials shall be removed and the work left in a neat and orderly manner.

(Code 1968, § 41-92; Ord. No. 90-635, §§ 110, 112, 5-23-90)

Sec. 40-93. Specifications for sidewalks of other than cement or concrete.

If the city council selects other material than cement or concrete for the building of sidewalks, it shall be the duty of the city engineer to prepare specifications therefor, and the property owners shall cause such sidewalks to be built in accordance with such specifications and on the line and grade established by the city engineer.

(Code 1968, § 41-93; Ord. No. 90-635, § 110, 5-23-90)





Sec. 40-94. Contracts for construction not to provide longer time than fixed by council.

No contract for the construction of any sidewalk, driveway, curb or gutter ordered by the city council shall be made which shall provide a longer time for the completion of such work than the time fixed by the city council.

(Code 1968, § 41-94)

Sec. 40-95. Contractor's bond.

(a) No person, except a person laying permanent street pavement under contract with the city, shall be entitled to construct, reconstruct or repair any sidewalk, driveway, curb or gutter in the city, unless he shall first execute to the city a yearly bond in the sum of $2,000.00, payable to the city, with two or more sureties, or with a corporate surety authorized to do business in Texas, conditioned that the principal therein will construct, reconstruct or regrade all sidewalks, driveways, curbs or gutters in accordance with the ordinances of the city and on the line and grade as established by the city engineer, and further conditioned that such person will save the city harmless from all loss or damage to any person, of whatever character, arising by reason of negligence on the part of the contractor in performing such work, or in leaving the same ungraded, or from any other cause. The bond shall further recite that all work done by the contractor during the year for which such bond shall hold good, shall be performed to the satisfaction of the city engineer.

(b) The bond may be accepted on behalf of the city by the mayor, the mayor pro tem, the director of public works and engineering, or any person designated and so authorized by the mayor in a writing signed by the mayor and filed with the city secretary. Any such acceptance may be accomplished by signature on the bond itself or by any other means which indicates an acceptance of the benefits of such bond.

(Code 1968, § 41-95; Ord. No. 81-22, § 1, 1-13-81; Ord. No. 90-635, §§ 110, 113, 5-23-90; Ord. No. 93-514, § 78, 5-5-93)

Sec. 40-96. Deviation from council's order.

After the passage of any order prescribing the construction, reconstruction, repair or regrading of sidewalks, curbs, gutters or driveways, or any of them, it shall be unlawful for any property owner to construct any other or different sidewalk, driveway, curb or gutter than that prescribed in such order, and any person, after the passage of such order, who shall construct a sidewalk, driveway, curb or gutter different from that prescribed in such order shall be deemed guilty of an offense.

(Code 1968, § 41-96)

Sec. 40-97. City may refuse to pave streets until sidewalks and curbs laid.

The city shall have the right, and it is hereby expressly reserved, to refuse to pave any street unless and until the owners of abutting property shall previously lay, in the manner prescribed by the city council, curbs and sidewalks thereon.

(Code 1968, § 41-97)





Sec. 40-98. Article applies to construction in connection with erection of buildings.

The provisions of this article shall apply to and govern the construction or reconstruction of side walks, driveways, curbs or gutters in connection with the erection of buildings in the city.

(Code 1968, § 41-98)


Any person constructing, reconstructing, repairing or regrading any sidewalk, driveway, curb or gutter who shall fail first to give the bond required by section 40-95 of this Code, or who shall construct, reconstruct or repair any sidewalk, driveway, curb or gutter without obtaining from the city engineer the line and grade therefor, or who shall construct any sidewalk, driveway, curb or gutter on any other line and grade than that given by the city engineer, or without obtaining a permit therefor, or who shall fail to construct, reconstruct, repair or regrade any sidewalk, driveway, curb or gutter after notice so to do, or who shall violate any other provision of this article, shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined as provided in section 1-6 of this Code.

(Code 1968, § 41-99; Ord. No. 90-635, § 110, 5-23-90)


FOOTNOTE(S):

--- (3) ---

Cross reference— Erection of detour of barricade signs, § 45-18. (Back)



ARTICLE IV. STREET OILING PERMIT




Sec. 40-111. Information to be furnished by applicant.

Sec. 40-112. Bond to be furnished by applicant.

Sec. 40-113. Denial.

Sec. 40-114. Expiration; not transferable.

Sec. 40-115. Penalty.



It shall be unlawful for any person to oil or allow the oiling of any public street, highway, or alleyway within the city, without having applied for and obtained a street oiling permit from the director of public works and engineering or his designee ("the director").

(Code 1968, § 41-110; Ord. No. 90-635, § 114, 5-23-90; Ord. No. 93-514, § 79, 5-5-93)

Sec. 40-111. Information to be furnished by applicant.

Applicants for a permit required by this article shall furnish, on forms to be furnished by the director, the following information:

(1) Which portions of which streets, highways or alleyways are proposed to be oiled.

(2) The name, business address and business telephone number of the contractor who is to perform the street oiling.

(3) The description, by specification, of the materials to be used.

(4) The method of application to be used.

(5) The date of the proposed work is to commence.

(6) Such other information as the director may require.

(Code 1968, § 41-111; Ord. No. 90-635, § 114, 5-23-90)

Sec. 40-112. Bond to be furnished by applicant.

Each applicant for a street oiling permit must furnish, on forms to be provided by the director, a bond executed by the contractor who is to perform the street oiling and by one corporate surety, which surety shall be a corporation qualified and licensed by the board of insurance commissioners of the state, in the amount of $10,000.00, which bond shall provide and be conditioned that the principal and surety will be primarily liable for its negligent and wrongful acts and will further indemnify and save harmless the city and its officers from any and all demands, claims, or liability, regardless of by whom claimed, arising out of or in any manner incident to the doing of any work pursuant to or under the terms of any permit issued, during the coverage period of the bond, and assumes all liability for any and all acts relating to the





performance of the oiling of any street. A single recovery shall not exhaust such bond, but the same shall remain in full force and effect until the whole amount thereof has been recovered, or until the bond has terminated in accordance with the following provision. Such bond shall terminate at midnight on December thirty-first of the same year in which it shall have been executed; provided, that such termination shall not discharge or release the principal obligor and the surety from the payment of claims and the liability therefor based upon breach of the conditions of the bond occurring prior to the termination thereof. Each such bond shall be accompanied by an appropriate power of attorney evidencing the authority of the issuing agent or attorney to execute the bond for the corporate surety.

(Code 1968, § 41-112; Ord. No. 90-635, § 114, 5-23-90)

Sec. 40-113. Denial.

The director shall deny any application for a street oiling permit if the proposed street oiling would interfere with, hinder or adversely affect any project of the city or result in damage to any city-owned property. The director shall deny any such application if the material to be used is anything other than used lubricating oil, or if the method of application to be used is any method other than at least two applications evenly distributed, totaling a minimum of three-fourths of one gallon per square yard. The director shall deny any such application if all of the information requested on the application form is not accurately and truthfully given, or if the required bond is not furnished, or if the bond furnished does not meet the requirements of this article.

(Code 1968, § 41-113; Ord. No. 90-635, § 114, 5-23-90)

Sec. 40-114. Expiration; not transferable.

All street oiling permits will expire and be null and void at the end of 90 days after the date of issuance. All street oiling permits shall be nontransferable.

(Code 1968, § 41-114)


Each person violating any provision of this article shall, upon conviction, be punished as provided by section 1-6 of this Code. Each day in which this article is violated shall be considered a separate offense.

(Code 1968, § 41-115; Ord. No. 92-1449, § 56, 11-4-92)


Cross reference— Assessment of fines against corporations, § 16-76; payment of fines, § 16-78;

credit against fines for incarceration, § 35-6 et seq.




ARTICLE V. EXCAVATION IN PUBLIC WAY


ARTICLE V. EXCAVATION IN PUBLIC WAY [4]


DIVISION 2. - PERMITS

DIVISION 3. - PERFORMANCE OF EXCAVATIONS

DIVISION 4. - RESERVED

FOOTNOTE(S):

--- (4) ---

Editor's note— Ord. No. 00-1115, § 2, adopted Dec. 20, 2000, amended Art. V in its entirety. Formerly said article pertained to similar subject matter and derived from Code 1968, §§ 41-127—41-157. See the Code Comparative Table. (Back)

Cross reference— Open or uncovered wells, cisterns, excavations, etc., § 28-11; erection of detour or barricade signs, § 45-118 et seq.; driving on fresh pavement, § 45-42. (Back)







Sec. 40-121. Definitions.

Sec. 40-122. Prohibited activities.

Sec. 40-123. Provisions cumulative.


Sec. 40-125. No private rights in public way.

Sec. 40-126. Appeals; hearing.

Sec. 40-127. Public entities not exempt.

Sec. 40-128. Rules and regulations.



As used in this article, the following terms shall have the meanings ascribed in this section, unless the context of their usage clearly indicates another meaning:

Applicant means any person who seeks a permit for an excavation.

Backfill means excavation fill material meeting city specified quality requirements or the placement thereof.

Construction standards means the City of Houston Standard Specifications for Wastewater Collection Systems, Water Lines, Storm Drainage, and Street Paving and the City of Houston Standard Construction Details for Wastewater Collection Systems, Water Lines, Storm Drainage, and Street Paving as they may be amended from time to time by the department of public works and engineering and approved by the city engineer.

Emergency means an unforeseeable event or occurrence that endangers health, life, or property, or a situation in which public need for uninterrupted utility service requires immediate corrective action to restore services.

Excavation means an activity that cuts, penetrates, or bores under any portion of the public way that has been improved with a paved surface for street, sidewalk, surface drainage, or related public transportation infrastructure purposes. The term includes but is not limited to cutting, tunneling, jacking and boring, backfilling, restoring, repairing, and installing and maintaining a temporary surface in, the public way. The term does not include a transportation improvement; however, it does include excavations that are undertaken for the improvement or maintenance of publicly owned utility systems, such as water and wastewater lines and facilities. The term also does not include utility maintenance or other activities that are performed within already existing structures, vaults, conduits, or cable ways that are located underneath street improvements, provided that any access required for the work is obtained through manholes, or other previously constructed entrances that may be utilized without cutting or penetrating any pavement or other street improvement.

Facility means any structure, device, or other thing whatsoever that may be installed or maintained in, on, within, under, over, or above a public way by an excavation.






Inspection means the inspection of an excavation by any person approved by the city engineer to determine compliance with this article.

Owner means a person, 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.

Permit means a current and valid authorization issued under division 2 of this article.

Permittee means a person who holds a permit; the singular term includes the plural if two or more persons jointly hold the permit, where applicable.

Public way means any public street right-of-way located in the city, including the entire area between the boundary lines of every way (including but not limited to roads, streets, alleys, highways, boulevards, bridges, tunnels, or similar thoroughfares), whether acquired by purchase, grant, or dedication and acceptance by the city or by the public, that has been opened to the use of the public for purposes of vehicular travel.

Public way construction entity means the City of Houston, the Metropolitan Transit Authority of Harris County, Texas, the Texas Department of Transportation, Harris County, Harris County Flood Control District, or any other public entity performing or causing to be performed transportation improvement construction or construction-related activities in public ways.

Traffic-control device means a traffic sign, signal, or marking that is placed and maintained in accordance with state law and this Code.

Transportation improvement means the portion of work within the finished paved surface of a public way undertaken by or pursuant to contract for the state or a political subdivision of the state for the purpose of improving or maintaining public way transportation and related storm drainage and street lighting infrastructure, but does not include any activity, such as connection to other facilities, that cuts, penetrates, or bores under a public way other than the one being improved or maintained pursuant to the contract or that cuts, penetrates or bores under the public way after installation of new paving.


Sec. 40-122. Prohibited activities.

(a) It shall be unlawful for any person to excavate or cause an excavation within the city unless the person is a permittee to whom a permit has been issued for the excavation pursuant to this article.

(b) It shall be unlawful for a permittee to excavate or cause an excavation within the city in violation of any term of a permit issued pursuant to this article.

(c) It shall be unlawful for any permittee to fail to exhibit a permit upon request as required by section 40-142 of this Code. In any prosecution under this article, it shall be presumed that there is no permit if the permit is not properly exhibited.

(d) It shall be unlawful for any permittee to fail to restore the public way following excavation as required by this article.

(e) It is an affirmative defense to prosecution under subsections (a) and (c) above that the excavation was begun in response to an emergency and that a permit was timely applied for in compliance with section 40-139 of this Code.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 3, 6-7-06)







(a) The provisions of this article are cumulative of all other requirements of this Code and other laws, including, without limitation, the Construction Code and the Fire Code, and utility franchises, as well as all applicable state and federal laws and regulations. Compliance with this article does not excuse compliance with any other law, and permittees are additionally required to obtain any other permits, licenses, and authorizations required by law, including but not limited to utility franchises, permits, licenses, and authorizations that are required to be obtained from the city, the Texas Department of Licensing and Regulation, the Texas Public Utility Commission, and the Texas Underground Facility Notification Corporation or any other appropriate governmental agency. However, to the extent that any provision set forth in this article may not be imposed upon any person because its imposition would be inconsistent with a controlling state or federal law, then this article shall be construed and applied in a manner that conforms with the applicable state or federal law. In addition, this article shall not be construed to require an owner to pay any fee that is prohibited by applicable state or federal law or valid city utility franchise.

(b) To the extent that any other city permit or authorization is required for work that is also governed by this article, the director of public works and engineering shall, to the extent practicable, devise consolidated application forms and issue the required permits or authorizations on a combined basis.



Violation of this article is unlawful. Any person who violates any provision of this article shall be guilty of an offense and, upon conviction thereof, shall be punished as provided in section 1-6 of this Code. Each and every day that any violation continues shall constitute a separate offense and shall be punishable as such.

(Ord. No. 00-1115, § 2, 12-20-00)

Sec. 40-125. No private rights in public way.

Nothing in this article shall be construed to give any person or permittee any property right in or to the use of the public way. All permits issued and held under this article shall be subject to the superior right of the public to control the use of the public way and ensure the safe and orderly movement of traffic, and a separate permit shall be required under article XVII of this chapter where applicable to any work that causes an obstruction.


Sec. 40-126. Appeals; hearing.

Any person whose permit is denied or who is otherwise aggrieved by a notice, action, or decision of the city engineer hereunder shall, upon written request, be entitled to a hearing to be conducted by a hearing officer designated by the director of public works and engineering, who shall promulgate rules for hearings. The decision of the hearing officer shall be final. Where time is of the essence, the aggrieved person may so advise and state the reason therefor in the request and, to the extent reasonably warranted and allowed by the circumstances, an expedited hearing of the issue shall be afforded.

(Ord. No. 00-1115, § 2, 12-20-00)






Sec. 40-127. Public entities not exempt.

In addition to their application to other persons, the provisions of this article are applicable to excavations made by the city and its contractors, as well as to excavations made by or on behalf of other governmental entities and subdivisions, to the extent of the city's police power jurisdiction. In connection with excavations made by the city, the city engineer may waive compliance with insurance and other requirements that have no practical application as applied to the city.

(Ord. No. 00-1115, § 2, 12-20-00)

Sec. 40-128. Rules and regulations.

(a) The director of public works and engineering is authorized to promulgate rules and regulations regarding any aspect of the operation of this article, including without limitation requirements for drawings and specifications, methods by which excavations will be performed, traffic control procedures, application processing and hearing procedures, debarment procedures, construction management procedures, and inspection procedures. The rules and regulations shall be consistent with applicable federal and state laws, city ordinances, and sound engineering practices, and the City Council Committee on Transportation, Infrastructure and Aviation, or its successor committee, shall conduct a public hearing on the proposed rules and regulations not less than ten days following the publication of notice of intent in a newspaper of general circulation, and the proposed rules and regulations shall be approved by a majority vote of the City Council Committee on Transportation, Infrastructure and Aviation, or its successor committee, prior to implementation. The director of public works and engineering shall make copies of the rules and regulations available for inspection in the director's office, and copies may be purchased at the fees prescribed by law.

(b) Before adopting any rules and regulations under subsection (a) or any substantive amendments thereto, the director of public works and engineering shall publish a notice of intent one time in a newspaper of general circulation and shall afford a ten-day period in which affected persons may obtain a copy of draft proposals and submit written comments thereon.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 5, 6-7-06)





DIVISION 2. PERMITS


DIVISION 2. PERMITS

Sec. 40-136. Application.

Sec. 40-137. Drawings to accompany application; exceptions.

Sec. 40-138. Approval of application; issuance or denial of permit; hearing; validity.

Sec. 40-139. Applicability of article to emergencies.

Sec. 40-140. Work warranty.

Sec. 40-141. Permit not transferable; void if excavation not timely commenced.

Sec. 40-142. Record at excavation-site; public notice.

Sec. 40-143. Removal or relocation of facilities.

Sec. 40-144. Owner business plans; coordination of excavations.

Sec. 40-145. Newly constructed or reconstructed streets.

Sec. 40-146. Defaults; unauthorized excavations.

Sec. 40-147. Insurance.

Sec. 40-148. Extensions.

Sec. 40-149. Application fees.



(a) A permit for any excavation shall be obtained by the owner of the facility. If the owner of a facility will not be making the excavation with its own personnel, then the contractor retained to perform the work shall join with the owner as an applicant in obtaining the permit. Where two or more related excavations are being performed as part of the same project, the application and permit may cover the related work, consistent with the regulations issued under section 40-128 of this Code.

(b) Applications for permits shall be in the form prescribed by the director, who may provide for the filing and processing of applications by electronic means. Each application shall be submitted to the city engineer, shall be signed and sworn to before an officer authorized to administer oaths by each applicant and shall include the following:

(1) The name, assumed name, or business name, business type (corporation, partnership, individual/sole proprietor or other) of each applicant;

(2) Each applicant's mailing address (and street address if different), telephone number, facsimile number, and e-mail address;

(3) The location (including key map number), depth, length, and width of each excavation to be made in each block and/or intersection, which may alternatively be set forth on the provided drawings and specifications;

(4) The purpose of the excavation, including a description of the facilities to be installed, maintained, and/or repaired;




DIVISION 2. PERMITS


(5) The method of excavation;

(6) The proposed excavation start date and duration;

(7) A statement that each person executing the application is fully authorized to act on behalf of and bind his principal in executing and filing the application;

(8) A statement that each applicant accepts and obligates itself to the following release and indemnification provisions:

'RELEASE

PERMITTEE AGREES TO AND SHALL RELEASE THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY THE "CITY") FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THE PERMIT, EVEN IF THE INJURY, DEATH, DAMAGE, OR LOSS IS CAUSED BY THE CITY'S ACTUAL OR ALLEGED JOINT OR CONCURRENT NEGLIGENCE AND/OR THE CITY'S STRICT PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY.

INDEMNIFICATION

PERMITTEE AGREES TO AND SHALL DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY THE "CITY") HARMLESS FOR ALL CLAIMS, CAUSES OF ACTION, LIABILITIES, FINES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS, AND ALL OTHER DEFENSE COSTS AND INTEREST) FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS PERMIT, INCLUDING, WITHOUT LIMITATION, THOSE CAUSED BY:

(i) PERMITTEE'S AND/OR ITS AGENTS', EMPLOYEES', OFFICERS', DIRECTORS', PRINCIPALS', OR SUBCONTRACTORS OF PERMITTEES' (COLLECTIVELY IN NUMBERED PARAGRAPHS (i)—(iii), "PERMITTEE") ACTUAL OR ALLEGED NEGLIGENCE OR INTENTIONAL ACTS OR OMISSIONS;

(ii) THE CITY'S AND PERMITTEE'S ACTUAL OR ALLEGED CONCURRENT NEGLIGENCE, WHETHER PERMITTEE IS IMMUNE FROM LIABILITY OR NOT; AND

(iii) THE CITY'S AND PERMITTEE'S ACTUAL OR ALLEGED STRICT PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY, WHETHER PERMITTEE IS IMMUNE FROM LIABILITY OR NOT.

PERMITTEE SHALL DEFEND, INDEMNIFY, AND HOLD THE CITY HARMLESS DURING THE TERM OF THE PERMIT AND FOR FOUR YEARS AFTER THE PERMIT TERMINATES.

WHERE APPLICABLE, THE PROVISIONS OF SECTION 283.057 OF THE TEXAS LOCAL GOVERNMENT CODE SHALL CONTROL IN LIEU OF THE FOREGOING; ADDITIONALLY, TO THE EXTENT THAT THE APPLICANT HOLDS A CURRENT AND VALID UTILITY FRANCHISE FROM THE CITY, THE RELEASE AND INDEMNIFICATION PROVISIONS OF THE FRANCHISE SHALL CONTROL IN LIEU OF THE FOREGOING.'

(9) The name of the owner of the facility;




DIVISION 2. PERMITS


(10) The 24-hour telephone number at which each applicant's representative who will respond to emergencies may be contacted;

(11) The name, mailing address, telephone number, facsimile number, and e-mail address of a person who is authorized to receive all notices authorized to be given by the city under this article to each applicant;

(12) Confirmation that all materials necessary for construction will be on hand and ready for use so as not to delay the excavation;

(13) A transmittal number issued by the Texas Underground Facility Notification Corporation evidencing that the applicant has complied with the Texas Underground Facility Damage Prevention and Safety Act or an assurance that the transmittal number will be provided to the city engineer before the excavation commences;

(14) Evidence of insurance as required in section 40-147 of this Code;

(15) Drawings and specifications, as provided in section 40-137 of this Code;

(16) The work warranty as required by section 40-140 of this Code; and

(17) The nonrefundable application fee established pursuant to this article.

If the director provides for the filing of applications by electronic means, each application for a permit or permit extension not submitted by electronic means shall also be accompanied by an additional application fee established pursuant to this article for the cost of data entry.

(c) An application for a permit for an excavation performed pursuant to section 40-139 of this Code shall, in addition to the items required above, also include a written statement:

(1) Explaining the basis for the emergency actions;

(2) Describing the excavation being performed;

(3) Describing any work remaining to be performed in the public way; and

(4) Stating the time and date when the emergency occurred.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 6, 6-7-06)

Sec. 40-137. Drawings to accompany application; exceptions.

(a) Unless otherwise provided in the rules and regulations promulgated under section 40-128 of this Code, each application shall be accompanied by drawings and specifications, which shall show:

(1) The location of the excavation;

(2) The method and manner in which the excavation will be performed; and

(3) The methods by which vehicular and pedestrian traffic will be controlled during the prosecution of the excavation, including any proposed signage, use of flaggers, or use of peace officers to direct traffic.

The drawings and specifications shall be prepared in compliance with all applicable laws, rules, regulations, and construction standards. The director of public works and engineering may approve standard details for frequently encountered types of excavations, and the approved details may be incorporated into drawings and specifications, where applicable.




DIVISION 2. PERMITS


(b) Consistent with applicable laws, sound engineering practices, and the nature and extent of the excavation, the city engineer may require the drawings and specifications to be sealed by a professional engineer who is licensed in Texas.

(c) An emergency excavation may be commenced under section 40-139 of this Code without submission of drawings and specifications. Consistent with the nature of the emergency and the excavation required, the city engineer shall allow the applicant a reasonable period of time to produce any required drawings and specifications.


Sec. 40-138. Approval of application; issuance or denial of permit; hearing; validity.

(a) The city engineer shall initially review each application to determine whether it is complete. The city engineer shall return an incomplete application with an explanation of the deficiencies. Consistent with the terms of this article, the city engineer shall approve, approve with conditions, or deny each complete application.

(b) If an application is denied, the city engineer shall notify the applicant of the grounds for denial and of the applicant's right to a hearing under section 40-126 of this Code.

(c) Upon approval of an application, the city engineer shall issue a permit. The permit shall include the following:

(1) Identity of the excavation that is authorized.

(2) Name, mailing address, telephone number, and e-mail address of permittee and owner.

(3) Date of issuance.

(4) Any special conditions applicable to the permit.

(5) The number of days from date of entry on the public way to final completion to be allowed for the excavation, which shall be determined pursuant to the rules and regulations promulgated under section 40-128 of this Code, taking into consideration the nature and extent of the excavation and the vehicular and pedestrian use of the public way. Where a permit covers two or more excavations, the number of days for final completion may, consistent with the nature of the work, be separately established for each portion of the work.

(6) Any additional information deemed necessary for compliance with this article.

(7) A statement that the permit is issued subject to the terms of this article, the rules and regulations promulgated under section 40-128 of this Code, the construction standards, the approved drawings and specifications, and all other applicable requirements.

(d) A permit shall no longer be valid if there are material changes to the excavation, including but not limited to a change in the scope of the work or the method of performing the work of such consequence that the drawings and specifications no longer accurately depict the work, extending the excavation into any geographical area not included in the permit or an excavation that is not authorized by the original permit.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, §§ 7, 8, 6-7-06)




DIVISION 2. PERMITS


Sec. 40-139. Applicability of article to emergencies.

Nothing contained in this article shall be construed to prevent any person from making an excavation that is necessitated by an emergency, provided that the owner shall: (1) before the excavation is initiated notify the city engineer by telephone at the 24-hour city response telephone number provided in the procedures established under section 40-128 of this Code and also notify any other city, state, or federal authority required under law to be notified; and (2) apply for a permit for the excavation within 24 hours after the initiation of the excavation or, if the city offices are then closed, within 24 hours after the offices of the city are first opened subsequent to the initiation of the excavation.

(Ord. No. 00-1115, § 2, 12-20-00)

Sec. 40-140. Work warranty.

Each applicant shall execute and provide a work warranty in a form approved by the city attorney, which shall be incorporated into the application form. The purpose of the work warranty is to undertake and ensure that the permittee will:

(1) Timely perform the excavation in accordance with the permit, the drawings and specifications, all applicable laws, rules, and regulations, and the construction standards adopted in or pursuant to this article, subject to remediation as provided in section 40-159 of this Code; and

(2) Warrant the excavation following its completion for two years, subject to remediation as provided in section 40-160 of this Code.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 9, 6-7-06)

Sec. 40-141. Permit not transferable; void if excavation not timely commenced.

(a) A permit issued under this division is personal to the permittee and may not be transferred to another person or used by any other person to perform the excavation authorized in the permit.

(b) A permit is valid only for the location(s) described on the application, depicted on the drawings and specifications, and authorized in the permit, and no excavation shall be authorized at any other location without another permit.

(c) Unless sooner extended by the city engineer upon written request and for reasonable cause, a permit shall become void if the excavation is not commenced within 60 days from the date of its issuance.

(Ord. No. 00-1115, § 2, 12-20-00)

Sec. 40-142. Record at excavation-site; public notice.

(a) A permittee shall, at all times while an excavation is in progress, keep, at the location of the excavation, the original permit (or a copy thereof) and shall, immediately on demand, exhibit the permit upon request to the city engineer or any other person.

(b) Each permittee shall post and maintain notices in the vicinity of the excavation in the time, place, and manner prescribed in the rules and regulations promulgated under section 40-128 of this Code. Failure to post and maintain the required notice shall be unlawful.




DIVISION 2. PERMITS


(c) Such notice required in paragraph (b) above shall include, but not be limited to, the name of the permittee, the permittee's telephone number, and the city permit number.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 10, 6-7-06)

Sec. 40-143. Removal or relocation of facilities.

All permittees who place facilities 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, and failure to do so shall be unlawful.

(Ord. No. 00-1115, § 2, 12-20-00)

Sec. 40-144. Owner business plans; coordination of excavations.

(a) On or before June 1 of each year, owners shall submit a plan of excavations anticipated to be done in the public way during the five-year period commencing on July 1 of that year. Additionally, the city engineer shall annually solicit a five year transportation improvement plan from the various public way construction entities. As soon as practicable following receipt and compilation of the plans, the city engineer shall make available for inspection a composite list of all projects and transportation improvements designated in the various plans. Applicants are responsible for keeping themselves apprised of the current status of the list. An owner or public way construction entity may change, add, or delete any project in its five year business plan, and if any modification is made, the owner and/or public way construction entity shall notify the city engineer.

(b) Prior to issuance of a permit, the city engineer shall check the application against the composite list. The city engineer may require owners to (i) coordinate their excavations; (ii) coordinate excavations with transportation improvements that are ongoing or are scheduled by public way construction entities; and (iii) complete excavations before transportation improvements commence. The city engineer may grant a waiver of coordination requirements for good cause. The city engineer shall consider the following before granting a waiver:

(1) Effect of each proposed excavation(s) on the surrounding vicinity and on traffic mobility;

(2) The applicant's need for the facility;

(3) The need to facilitate the deployment of new technology as directed pursuant to official city policy; and

(4) Public health, safety, welfare, and convenience.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 11, 6-7-06)

Sec. 40-145. Newly constructed or reconstructed streets.

(a) Except as provided in subsection (b) below, no permit shall be issued for an excavation in any public way that has been constructed, reconstructed, repaved, or resurfaced in the preceding period of five years, as measured from the date of acceptance by the public works construction entity. Owners shall determine alternative methods of making necessary repairs and facility installations to avoid excavations that are subject to this section.

(b) The city engineer, for good cause, shall grant a variance to an applicant for repair of existing utilities, to respond to emergencies, or to afford an owner the means to provide service to buildings that the




DIVISION 2. PERMITS


owner has no other reasonable means of serving in the determination of the city engineer. Variances shall be granted subject to special conditions that the city engineer determines to be appropriate to the circumstances, such as special coordination with other excavations, special paving requirements, additional soil compaction test reports, or any other requirements needed to restore the integrity of the public way to "as new" condition. In addition to the information provided on the application, applicant shall provide the following with respect to that part of the public way subject to this provision:

(1) Reason why the excavation was not performed before or when public way was paved;

(2) Reason why the excavation cannot be delayed until after the five-year period expires; and

(3) Reason why the excavation cannot be performed at another location or the owner's need cannot be accomplished by a method that does not require excavation.

(Ord. No. 00-1115, § 2, 12-20-00)

Sec. 40-146. Defaults; unauthorized excavations.

(a) The city engineer shall not issue a permit to any person who is in default or breach of any obligation to the city under this article on a prior permit or on a warranty obligation under section 40-159 or 40-160 of this Code.

(b) The director is authorized to debar from obtaining a permit any person who has performed an unpermitted excavation or any owner who has knowingly allowed that practice. Any such debarment shall be for a reasonable period of time that is consistent with the nature and circumstances of the alleged transgressions. Regulations shall be issued for debarment under section 40-128 of this Code.

(c) Before invoking the provisions of this section, the city engineer shall provide a written notice to the affected persons and afford them a right to a hearing under section 40-126 of this Code.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 12, 6-7-06)


(a) As a condition of the issuance of a permit, the applicant shall provide evidence that the applicant holds a current policy of comprehensive general liability insurance covering the excavation, with an endorsement for any liability assumed under this article and policy limits of not less than $150,000.00 for property damage, per occurrence, and of not less than $150,000.00, per person, and $500,000.00, per occurrence, for bodily injury or death. Each policy shall include a provision obligating the insurer to furnish to the city engineer at least ten days prior written notice of any cancellation.

(b) The failure of the permittee to continuously maintain any required coverage shall cause any permit covered thereby to become invalid. No work may be performed on any excavation at any time when any required proof of insurance coverage is not on file in the city engineer's office. Following notice and an opportunity for a hearing under section 40-126 of this Code, the city engineer shall revoke any permit for which any required proof of insurance is not being maintained.

(c) For joint applications and permits, the coverage required in this section may be provided by a policy jointly covering all of the applicants or by separate proofs of coverage for each applicant or permittee.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 13, 6-7-06)




DIVISION 2. PERMITS


Sec. 40-148. Extensions.

For good cause not relating to any fault of the permittee in diligently prosecuting the excavation, the city engineer may extend the number of days allowed in the permit pursuant to section 40-138(c)(5) of this Code for completion of the excavation. To obtain an extension, the permittee shall submit an application therefor, including the nonrefundable application fee established pursuant to this article and indicating the number of additional days needed for final completion. Extensions of time granted under this subsection shall be noted on the records regarding the permit.


Sec. 40-149. Application fees.

The director may, from time to time, prepare and submit for approval by motion of the city council revisions to the schedule of nonrefundable application fees that shall be paid by an applicant for a permit, permit extension or data entry. The fees approved under this provision shall be included in the city fee schedule. Payment of any applicable fees when due is a condition of the processing of any application under this article.

(Ord. No. 06-595, § 15, 6-7-06; Ord. No. 2011-1168, § 13, 12-14-2011)





DIVISION 3. PERFORMANCE OF EXCAVATIONS



Sec. 40-156. Access to fire hydrants.

Sec. 40-157. Crossings; traffic control devices.

Sec. 40-158. Steel plate temporary surfaces.

Sec. 40-159. Completion of excavation; warranty.

Sec. 40-160. Warranty of excavation; correction of defects.

Sec. 40-161. Inspections of excavations.

Sec. 40-162. Damage to facility.

Sec. 40-163. As-built drawings and specifications.

Sec. 40-156. Access to fire hydrants.

Each excavation shall be performed so it does not obstruct emergency access to any fire hydrant or public water supply valve.

(Ord. No. 00-1115, § 2, 12-20-00)

Sec. 40-157. Crossings; traffic control devices.

It shall be the duty of each permittee to make provisions for the safe crossing of pedestrians and the orderly movement of vehicular traffic. Provisions therefor shall be included in the drawings and specifications for the excavation. Any required traffic control devices shall conform to applicable laws, the Texas Manual on Uniform Traffic Control Devices, and any rules and regulations promulgated under section 40-128 of this Code.

(Ord. No. 00-1115, § 2, 12-20-00)

Sec. 40-158. Steel plate temporary surfaces.

It shall be unlawful to place a steel plate at an excavation without a permit. The director may authorize as a condition of a permit the use of a steel plate as a temporary surface for an excavation. Any such permit shall specify the length of time the steel plate is allowed to remain in the public way. It shall be unlawful for any permittee or former permittee to maintain or cause to be maintained a steel plate in the public way after the time specified in the permit for the excavation at which the steel plate is located. Each steel plate shall be clearly marked with the name of the owner of the steel plate, and a permittee's failure to use a steel plate so marked shall be a violation of this article.

(Ord. No. 06-595, § 16, 6-7-06)

Sec. 40-159. Completion of excavation; warranty.

(a) In accordance with the rules and regulations promulgated under section 40-128 of this Code, a permittee shall notify the city engineer before commencing and obtain permission to commence the






excavation before it enters into the public way. In connection with the notification and permission, the authorized date of entry on the public way, for purposes of section 40-138(c)(5) of this Code shall be established. In connection with the notification, the permittee shall also furnish the transmittal number required under section 40-136(b)(13) of this Code, if it has not previously been provided. The permittee shall diligently prosecute the excavation to its final completion within the time authorized under the permit. It shall be unlawful for a permittee to fail, refuse or neglect to diligently prosecute or to timely complete the excavation in accordance with the permit and all applicable rules and regulations and the construction standards adopted in or pursuant to this article.

(b) If a permittee commences an excavation and then fails, refuses, or neglects to diligently prosecute or to timely complete the excavation in accordance with the permit and all applicable rules and regulations and the construction standards adopted in or pursuant to this article, the city engineer may, following written notice to the permittee, perform the excavation or cause a city contractor to perform the excavation. The city engineer shall afford the permittee five days' written notice and opportunity to cure before taking over the excavation, unless the director of public works and engineering determines that hazards to public safety and convenience that are posed by the condition of the excavation require a shorter notice period. The city engineer may charge the cost of having the excavation performed, including related administrative expenses, to the permittee. The city engineer shall so notify the permittee, and the permittee shall be obliged to pay the cost within 30 days following receipt of notification. Disputes over costs assessed shall be subject to the hearing process established under section 40-126 of this Code.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, §§ 16, 17, 6-7-06)

Sec. 40-160. Warranty of excavation; correction of defects.

Each permittee shall warrant its excavations against all defects in workmanship and materials for a period of two years after final completion. Whenever within the one year period any portion of the pavement or surface of any public way excavated under such a warranty is, in the engineering determination of the city engineer, in need of repairs, by reason of any defect in workmanship or materials, the city engineer shall serve upon the permittee a written notice stating the repairs necessary, and requiring the repairs to be made within five days after service of the notice. If the repairs are not timely made, the city engineer shall at once make or cause to the repairs to be made at the expense of the permittee. The expenses, including any related administrative expenses, shall be charged to the permittee, and the permittee shall be obliged to pay the cost within 30 days following receipt of notification. Disputes over costs assessed shall be subject to the hearing process established under section 40-126 of this Code.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 16, 6-7-06)

Sec. 40-161. Inspections of excavations.

(a) All excavations shall be inspected by the city. Based upon the complexity and nature of the excavation and as specified in the permit, inspections may be required during the performance of the excavation, immediately upon completion of the excavation, or both.

(b) Consistent with applicable laws, sound engineering practices, and the nature of the excavation, the city engineer may, in addition to or in lieu of the inspections called for under subsection (a), require that a permittee, at the permittee's expense, retain a professional engineer licensed in Texas to observe the excavation and, based upon the observations, to provide written certification upon completion of the excavation stating that the public way has been restored in accordance with the drawings and specifications and all other applicable technical requirements.






(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 01-203, § 4, 2-28-01; Ord. No. 06-595, §§ 16, 18, 6-7-06)

Sec. 40-162. Damage to facility.

A permittee who, in connection with an excavation, damages another owner's facility shall immediately notify the city engineer and, to the extent that the owner's identity is reasonably determinable, the owner of the damaged facility.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 16, 6-7-06)

Sec. 40-163. As-built drawings and specifications.

Upon final completion of an excavation, the permittee shall provide to the city engineer a set of as-built drawings and specifications for the excavation, which shall be in a form provided by the rules and regulations promulgated under section 40-128 of this Code. In the event that the work was performed exactly in accordance with the drawings and specifications provided with the permit application, then the permittee may so advise the city engineer in writing, and the previously supplied drawings and specifications will be regarded as the as-built drawings and specifications.

(Ord. No. 00-1115, § 2, 12-20-00; Ord. No. 06-595, § 16. 6-7-06)




DIVISION 4. RESERVED


DIVISION 4. RESERVED [5]



FOOTNOTE(S):

--- (5) ---

Editor's note— Ord. No. 2006-595, § 19, adopted June 7, 2006, repealed Division 4, §§ 40-163—40-167, in their entirety. Formerly said sections pertained to general permits and derived from Ord. No. 00-203, § 5, 2-28-00 and subsequent amendatory ordinances. (Back)



ARTICLE VI. TRANSPORTATION OF EARTH MATERIALS ON STREETS AND ALLEYS


ARTICLE VI. TRANSPORTATION OF EARTH MATERIALS ON STREETS AND ALLEYS










Sec. 40-169. Owner's name and permit number to be displayed on vehicle.




The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) Earth materials shall mean dirt, sand, gravel, shell, clay, and any other materials of a similar nature.

(2) Vehicle shall mean any truck, wagon, trailer, or any other type of vehicle, conveyance, equipment, or machine used to carry, haul, or to transport earth materials.

(Code 1968, § 41-168)

Sec. 40-169. Owner's name and permit number to be displayed on vehicle.

It shall be unlawful for any person to drive, or to permit any agent, employee, subcontractor, or other person under his general supervision or control to drive, any vehicle carrying, hauling, or transporting earth materials on the public streets and alleys of the city, unless the name of the owner of such vehicle and the number of the permit provided for by this article is prominently and legibly displayed on each side of such vehicle.

(Code 1968, § 41-170)


Any person violating any provision of this article shall be fined not less than $50.00 nor more than $500.00 for each offense, and a separate offense shall be deemed committed on each day during or on which a violation occurs or continues.

(Code 1968, § 41-171; Ord. No. 92-1449, § 58, 11-4-92)








DIVISION 2. PERMIT


DIVISION 2. PERMIT


Sec. 40-178. Issuance; fee.

Sec. 40-179. To be numbered.

Sec. 40-180. Term.

Sec. 40-181. Suspension or revocation.



(a) It shall be unlawful for any person to drive, or to permit any employee, agent, subcontractor, or other person under his general supervision or control to drive, any vehicle carrying, hauling or transporting earth materials on the public streets and alleys of the city, unless a permit for the carrying, hauling or transporting of such earth materials is first secured by the owner of such vehicle from the city. No person other than the owner of the vehicle shall be required to secure such permit.

(b) The owner of a vehicle shall be required to secure only one permit under this division, regardless of the number of vehicles which he may operate in the city.

(Code 1968, § 41-177)

Sec. 40-178. Issuance; fee.

The director of public works and engineering or his designee ("the director") shall issue a permit for the carrying, hauling or transporting of earth materials to the owner of a vehicle, upon his making a written application and paying the permit fee stated for this provision in the city fee schedule.


Cross reference— Refund of permit fees paid to department of public works and engineering, §

2-285.

Sec. 40-179. To be numbered.

Each permit issued under this division shall have a permit number.

(Code 1968, § 41-179)

Sec. 40-180. Term.

A permit issued under this division shall be valid for one year from the date of issuance.

(Code 1968, § 41-180)




DIVISION 2. PERMIT


Sec. 40-181. Suspension or revocation.

(a) Any permit issued pursuant to the provisions of this division may be subject to suspension for any period of time not to exceed 30 days or to revocation upon the finding pursuant to a public hearing conducted by the director that the permittee or any of his agents or employees has failed to comply with applicable state laws on transportation of loose materials, provided that the holder of such permit shall be given prior notice of date, time and place of the hearing setting forth the grounds upon which the suspension or revocation is based and affording the holder an opportunity to appear in person and/or by counsel, present evidence and cross examine all witnesses appearing at such hearing.

(b) A person may appeal such suspension or revocation to the city council by filling a written notice of appeal with the city secretary within ten days after he receives notice of the suspension or revocation from the director. The city council shall have the power to uphold the suspension or revocation, or to reinstate the permit. When the city council upholds the revocation of a permit, no new permit shall be issued to the person whose permit has been revoked until six months have passed since the date of the revocation.

(Code 1968, § 41-181; Ord. No. 90-635, § 119, 5-23-90)




ARTICLE VII. INSPECTION PERMIT FOR CERTAIN STRUCTURES IN PUBLIC RIGHT-OF-WAY


ARTICLE VII. INSPECTION PERMIT FOR CERTAIN STRUCTURES IN PUBLIC RIGHT-OF-

WAY

Sec. 40-192. Findings of city council.

Sec. 40-193. Definition.

Sec. 40-194. Required; application; revocation.

Sec. 40-195. Content and conditions of inspection permit.

Sec. 40-196. Additional permit conditions when new, remodeling or renovating construction is to be made.

Sec. 40-197. General conditions.

Sec. 40-198. Intent of article.


Sec. 40-192. Findings of city council.

The city council hereby finds and determines:

(1) That the safety, health and welfare of the members of the general public will best be served by requiring periodic inspection, as provided in this article, of all structures, facilities, utility lines and encroachments located within the public streets or right-of-way, including, but not limited to, basements, vaults, tunnels and pipelines; and

(2) That there are numerous structures, facilities, basements and pipelines that were heretofore constructed, built or placed within the public streets without permission or knowledge on the part of the city, and the owners thereof should be required to pay a reasonable inspection fee to defray the city's expense of inspecting the aforesaid structures and facilities for the purpose of assuring protection of the public safety by lawful compliance with applicable provisions of the Construction Code, as well as to regulate the use of the public streets; therefore

(3) The fees for initial installation and each annual inspection stated for this provision in the city fee schedule shall be paid by the permittee as provided by this article, and that such fees are commensurate with and not in excess of the city's expense involved in administering, supervising, inspecting and regulating the use and maintenance of the aforesaid structures or facilities located within said streets, as well as the city's cost pertaining to the regulation of such public streets because of the abutting owner's occupancy, use, and maintenance of encroachments within the public right-of-way. Subsequent to the issuance of an inspection permit, should the cost to the city of such inspection decrease, the inspection fee shall be reduced correspondingly.

(Code 1968, § 41-192; Ord. No. 72-97, § 1, 1-19-72; Ord. No. 82-972, § 2, 6-15-82; Ord. No. 02-399, § 81, 5-15-02; Ord. No. 2011-1168, § 13, 12-14-2011)

Sec. 40-193. Definition.

As used in this article the term "permittee" shall mean any person who submits or files an original or renewal application with the building official, and shall mean any person who is the holder of an inspection permit provided for in this article or any agent, servant or employee of such person.





(Code 1968, § 41-193; Ord. No. 72-97, § 2, 1-19-72; Ord. No. 90-635, § 120, 5-23-90)

Sec. 40-194. Required; application; revocation.

(a) Any person who owns or leases land which abuts a public street or right-of-way and which abutting land has been improved with any structure, including basements, tunnels, vaults, or facilities, all or a part of which is within the subsurface of the city's right-of-way, shall obtain an inspection permit with regard to the occupancy or maintenance of the aforesaid structures or facilities within any part of the said subsurface of a public street.

(b) Any person who owns or leases land which abuts a public street or right-of-way and who desires to use or occupy any portion of the subsurface of a street by constructing any improvement, structure, basement, or vault within such subsurface area shall obtain an inspection permit therefor.

(c) Any person referred to in subsections (a) and (b) above shall make a written application on a form to be provided by the building official and thereby make a request for an inspection permit with regard to the occupancy or maintenance of the portion of the subsurface area of the right-of-way which abuts the applicant's property. The application shall contain, in addition to other information, the following:

(1) A map or plat showing the nature and extent of the intended use to be made of any portion of the subsurface of the right-of-way.

(2) The metes and bounds description of the subsurface area.

(3) The number of cubic feet contained in the area to be used.

(d) After the approval of the application, the payment of an inspection permit fee, and the issuance of an inspection permit with regard to the occupancy and maintenance of any improvements, structures, basements, tunnels, vaults or facilities within the city's right-of-way, under the terms and provisions of this article, the building official shall from time to time make inspections of any such structures, improvements, facilities or occupied area. If an inspection reveals that any part of the subsurface structure, improvements, facilities or occupied area within the city's right-of-way does not comply with applicable terms and provisions of the Construction Code and is dangerous or hazardous for human occupancy, the owner or lessee of the structure, improvements or occupied area, shall be notified and required to make such repairs as are necessary in order to comply with the applicable terms and provisions of the Construction Code. If any permittee fails and refuses to allow the building official to come upon or enter the premises of any such structures, improvements, facilities or occupied area for the purpose of making an inspection, he may be prosecuted under the terms of this article, and the building official may revoke the inspection permit for any such occupied area within the city's right-of-way, and such action shall be final, subject to the provisions of paragraph (9) of section 40-197 of this Code.

(Code 1968, § 41-194; Ord. No. 72-97, § 3, 1-19-72; Ord. No. 90-635, §§ 120, 121, 5-23-90; Ord. No. 02-399, § 82, 5-15-02)

Sec. 40-195. Content and conditions of inspection permit.

An inspection permit granted by the city with regard to any part of the city's right-of-way shall be issued pursuant to the terms and provisions of this article, which shall become a part of the inspection permit. The form of inspection permit issued by the building official shall contain a legal description of the property which abuts the city's right-of-way as well as a legal description of the area of the right-of-way proposed to be used and occupied by the permittee; and said inspection permit shall contain an acknowledgement to be made by the applicant, and upon acceptance of the inspection permit, it shall be acknowledged by the applicant.






Sec. 40-196. Additional permit conditions when new, remodeling or renovating

construction is to be made.

If any person or the owner of land abutting a public street or right-of-way reveals by his application for an inspection permit that any new, remodeling or renovating construction is desired to be made within any part of the city's right-of-way, the requested inspection permit will be issued upon compliance with the terms and provisions of this article, and in addition, upon the following conditions:

(1) The proposed use of the city's right-of-way by any person or the abutting land owner shall not interfere with the city's lawful use thereof; and no inspection permit will be granted without the approval of the building official.

(2) The proposed construction within the city's right-of-way shall be under the supervision of and in accordance with plans and specifications approved by the building official.

(3) At all times during the construction and building of any structure within the city's right-of-way the street or highway shall be kept open for vehicular and pedestrian traffic in a reasonable manner, and no obstruction of the sidewalks shall be permitted in such a way as to prevent the use thereof by pedestrians; dirt and other material removed from the building and construction of any such structure within the city's right-of-way shall not be permitted or allowed to remain on the street or sidewalk, but all such dirt and other materials shall be removed immediately at the sole cost, risk, liability and expense of permittee; all excavations and obstructions of any kind where permitted during the period of permittee's construction, shall be properly barricaded, and well illuminated during the night time, all subject to the approval of the building official.

(4) After the completion of the construction within the city's right-of-way, the permittee shall at his own cost and expense replace any sidewalks and surface of any streets that were damaged or removed in the construction of any improvement in a condition equally as good as they were immediately prior to the time of excavation or construction, and all of such sidewalks and streets shall be maintained in a good and useable condition for one year after said sidewalks or streets have been replaced, all subject to the approval of the building official. All damage, if any, to said sidewalks and streets caused by the construction, use, maintenance and operation by permittee shall be repaired by and at the cost and expense of the permittee. In the event permittee fails or refuses to proceed with diligence with the performance of any work in connection with the replacement, rebuilding or resurfacing of streets and sidewalks within 30 days after receiving written notice from the building official, the city may do such work or cause same to be done, all at the sole risk, cost, liability and expense of permittee.

(5) The permittee, or his successors, assigns or representatives agree, obligate and bind himself or itself to indemnify and does hereby indemnify and hold and save forever harmless the city, from all liability, cost or damage on account of the construction within the city's right-of-way, or on account of using, occupying, preparing, maintaining and operating any such improvements therein. The permittee also agrees to furnish the building official written evidence that he has in full force and effect during all times of the building and construction within the city's right-of-way, public liability insurance in the amount of not less than $200,000.00 and insurance for property damage in the sum of not less than $100,000.00 covering such buildings and construction.

(Code 1968, § 41-196; Ord. No. 72-97, § 5, 1-19-72; Ord. No. 90-635, § 120, 5-23-90)





Sec. 40-197. General conditions.

Upon the acceptance of any inspection permit with regard to the occupancy or maintenance of any part of a public street or right-of-way, including inspection permits for new construction, remodeling or renovating, within the city's right-of-way, the applicant and all persons in privity with him, expressly covenant and agree to comply with the terms and provisions of this article and the following conditions:

(1) The city shall have the right at any and all times upon 180 days written notice to the permittee, its representatives, successors or assigns, to take possession of and use all or any part of such city right-of-way in the event that such use be desired or needed by the city, as reasonably determined by the city council, for street, sewer, transportation or any other public or municipal use or purpose, and in such event, the city shall have the right to cancel such inspection permit as to that portion of the property or part of the right-of-way so designated and required by the city.

(2) The permittee shall have the right at any time upon 180 days written notice to the city, to relinquish the use and possession of all or any part of the property or right-of-way covered by the permit as it may so determine and to cancel said inspection permit as to that part so relinquished. In the event that any part of the property or right-of-way which is included and covered by the inspection permit shall be relinquished or diminished, then the cubic footage remaining and continuing to be used by the inspection permittee and thus requiring inspection shall be determined, and the inspection fee shall be calculated on the basis of the new cubic footage.

(3) Upon the lawful termination of an inspection permit issued hereunder, in whatsoever manner such termination may be made, permittee, assigns, successors and representatives, bind and obligate themselves to restore the city's right-of-way occupied under the provisions of the inspection permit to the original condition as it existed prior to any construction, or to fulfill any other reasonable conditions for the restoration of the right-of-way which may be acceptable to the city council of the city, and should the permittee, assigns, successors, or representatives fail or refuse to do so within 90 days after such termination then in that event the city may do or have done the work necessary for such purpose at the sole cost, risk, liability and expense of permittee, their assigns, successors and representatives.

(4) Upon written consent of the city, acting by and through the building official, the permittee may, at his sole cost, risk liability and expense including public liability and property damage insurance in the amounts specified in section 40-196 of this Code, remove, reroute, reconstruct, lower or raise any existing utility lines, public or private sewer lines, water lines, including storm sewers, pipes or conduits presently located within the city's right-of-way, provided that before changing or interfering with any such utility lines as described aforesaid, the permittee shall notify the respective utility companies and the city, owning or operating the aforesaid utility lines, concerning any and all changes, modifications, rerouting of or any interference whatsoever with the aforesaid utility lines, pipes or conduits. Any necessary changes, modifications, rerouting or interference with the aforesaid utility lines, pipes or conduits shall be done under the direction of the representatives of the respective utility companies or the city, as the case may be.

(5) After the completion of any construction within the city's right-of-way under the terms of an inspection permit granted hereunder, should the city desire to lay or construct its utility lines, including sewer lines, water lines, or any other pipes, or conduits under, across, or along said streets within its right-of-way, any and all additional cost for the laying or construction of the aforesaid utility lines, including pipes and conduits, within said street right-of-way, which may occur by reason of the existence of said construction, shall be paid to the city by the said permittee, his assigns, successors and representatives.





(6) Solely as between the city and the permittee, and not for the benefit of any other person, the permittee, by acceptance of such inspection permit, hereby waives any claim he, or any heirs, successors or assigns might have for damages for loss of lateral support to any other improvements hereby contemplated which loss of lateral support might be occasioned by any improvements which the city, its assigns, grantees, licensees, or permittees might install or construct.

(7) The permittee, or his successors, assigns, or representatives, by the acceptance of such inspection permit, agree, obligate and bind himself or itself to indemnify and does hereby indemnify and hold and save forever harmless solely the city, any of its agencies, and any person, from all liability, cost or damage on account of permittee's use, occupancy and maintenance of any part of the city's right-of-way and the structures and improvements therein, including, but not by way of limitation, any basements, tunnels or vaults constructed within the subsurface of any public street or right-of-way. This indemnity shall continue in force and effect during the existence of any inspection permits issued under the provisions of this article.

(8) No transfer or assignment of any inspection permit granted under the terms and provisions of this article shall be effective unless and until:

a. The permittee has, in writing, advised the building official of the name and mailing address of the transferee or assignee; and

b. The transferee or assignee has furnished the building official its written agreement to assume and perform all of the duties, covenants and obligations of the inspection permit; and, thereupon, each provision of the inspection permit shall be binding upon, and inure to the benefit of, the transferee or assignee of the permittee.

(9) The breach or violation of any one of the terms, provisions, or conditions set forth in this article shall be sufficient to constitute grounds for the cancellation and forfeiture of the inspection permit granted under the authority of this article. Any such cancellation and forfeiture may be exercised upon 20 days written notice by the city to the permittee, a representative or successor, unless, at the expiration of such time, any such violation or breach has ceased or the permittee is proceeding with all diligence and good faith to remedy any such violation or breach and thereafter continues without delay with such remedial work or correction until such violation or breach has been completely remedied, and, any person violating any of the provisions of this article may be prosecuted as provided herein.

(Code 1968, § 41-197; Ord. No. 72-97, § 6, 1-19-72; Ord. No. 80-3227, § 1, 11-20-80; Ord. No. 85-638, § 2, 5-1-85; Ord. No. 90-635, §§ 120, 123, 5-23-90)

Cross reference— Refund of certain permit fees paid to department of public works and

engineering, § 2-285.


It is the intention of the city council by the enactment of this article to lawfully regulate the subsurface use and occupancy of public streets and rights-of-way by persons as defined herein, abutting land owners, and their lessees, and establish an inspection fee, in accordance with the city's general power of control and regulation of public streets and highways as provided by law; however, this article shall not be construed as an assertion by the city of any property rights in derogation of abutting land owner's fee simple title and rights incident thereto, in those cases where the city does not own the fee simple title.

(Code 1968, § 41-198; Ord. No. 72-97, § 7, 1-19-72)






Any person who violates any of the provisions of this article shall be guilty of an offense and upon conviction thereof shall be punished as provided by section 1-6 of this Code. Each and every day that any such violation continues shall constitute a separate offense and shall be punishable as such.

(Code 1968, § 41-199; Ord. No. 72-97, § 8, 1-19-72; Ord. No. 92-1449, § 59, 11-4-92)




State law reference— Penalty for ordinance violations, Vernon's Ann. Civ. St. arts. 1011, 1195.



ARTICLE VIII. BUS SHELTERS



Sec. 40-200. Construction and maintenance of shelters for users of public transportation.


Sec. 40-200. Construction and maintenance of shelters for users of public transportation.

(a) Permit required. It shall be lawful for any person owning or leasing real property abutting the public right-of-way (hereinafter referred as "landholders") or for any person holding a franchise granting the right, privilege and franchise to place advertising materials upon shelters constructed pursuant to a permit issued under this section (hereinafter referred to as "franchisees") or for the Metropolitan Transit Authority (a governmental entity organized and existing under and pursuant to the provisions of Article 1118x, Texas Revised Civil Statutes) to use and occupy a designated area of the public right-of-way as hereinafter stated for the construction and maintenance of a public transportation structure upon obtaining a permit for each such use and occupancy from the director of public works and engineering or his designee (hereinafter referred to as the "director"). All persons seeking such permit shall make a written application on a form provided by the director and thereby make a request for the privilege, license and permission to use, occupy and maintain a designated area of the right-of-way, which area, if the applicant is applying in the capacity of a landholder, must abut the applicant's property. An applicant may request one or more permits in a single application.

(b) Approval of permits.

(1) No permit shall issue for the use or occupancy of the city right-of-way until the director of administration and regulatory affairs shall certify to the public necessity of such use, occupancy and maintenance for a public transportation structure.

(2) No permit shall issue for the use or occupancy of the city right-of-way until the director shall certify that such permit will comply with and be consistent with the current city traffic plans and standards.

(c) Inspection under permit. After the approval of the application and the issuance of the permit, and the payment of the permit fee stated for this provision in the city fee schedule, the director shall from time to time make inspections of such transportation structures and occupied areas.

(d) Revocation of permit.

(1) If any inspection of a public transportation structure, improvement, facilities or occupied area under the provisions of this section reveals that the permittee has failed to comply with the terms and provisions of the Construction Code or that the structure is in a dangerous or hazardous condition for human occupancy, the permittee shall be notified by certified mail to make such repairs as are necessary in order to comply with the terms and provisions of the Construction Code within ten days after the receipt of such notice by certified mail. If the permittee fails to make the repairs or to otherwise comply with this section or the Construction Code, the permit will be revoked.

(2) Upon revocation, the permittee shall have the right to appeal the decision of the director within ten days of the date of such revocation. The decision of the city council on the revocation appeal shall be final. The city shall have the right to remove such public transportation structure from the city right-of-way after the expiration of the ten-day appeal period or to make whatever arrangements with respect thereto as the city council may desire.

(e) Terms and conditions of permit.





(1) Any permit granted by the city for the use and occupancy of the city right-of-way shall be issued to the applicant upon the following terms and conditions of this section. In the case of franchisees, the permit holder shall also be subject to the terms and conditions of the franchise.

a. All permits issued by the department of public works and engineering to an abutting landowner or his lessee shall contain the legal description of the property which abuts the city right-of-way.

b. All permits issued under this section must contain a legal description or plat map of the area of the right-of-way to be occupied by the proposed structure.

c. Upon acceptance of the permit it shall be acknowledged by the applicant and filed for record by the city in the office of the county clerk.

d. The proposed use of the city's right-of-way under a permit shall not interfere with the city's use thereof.

e. The proposed construction within the city's right-of-way shall be under the supervision of and in accordance with plans and specifications approved by the director.

f. At all times during the construction and building of any structure within the city's right-of-way, the street or highway or other public right-of-way shall be kept open for vehicular and pedestrian traffic in a reasonable manner, and no obstruction of the sidewalks shall be permitted so as to prevent the use thereof by pedestrians for an unreasonable period of time; dirt and other material removed from the building and construction of any such structure within the city's right-of-way shall not be permitted or allowed to remain on the street or sidewalk and all such dirt and other material removed from the building and construction site shall be at the risk, liability and expense of the permittee; all excavations or obstructions of any kind which are permitted during the period of permittee's construction, shall be properly barricaded, and well-illuminated during the night time, all subject to the approval of the director.

g. After the completion of the construction within the city's right-of-way, the permittee shall at his own cost and expense replace any sidewalks and surface of any streets that were damaged or removed in the construction of any improvement in a condition equally as good as they were immediately prior to the time of excavation or construction and all of such sidewalks and streets shall be maintained in a good and usable condition for one year after said sidewalks and streets have been replaced, all subject to the approval of the director. All damage, if any, to said sidewalks and streets caused by the construction, use, maintenance and operation by the permittee shall be repaired by and at the cost and expense of the permittee. In the event the permittee fails or refuses to proceed with diligence with the performance of any work in connection with the replacement, rebuilding or resurfacing of streets and sidewalks within 30 days after receiving written notice from the director the city may do such work or cause same to be done all at the sole risk, liability and expense of the permittee.

(f) Conditions of use and occupancy after construction. In general, it shall be a condition of such use and occupancy that any structure shall be made available without discrimination at all times to all persons using public transportation.

(1) Insurance. Permittee agrees that as a condition of such use and occupancy of the right-of-way that he shall provide written evidence that he has in full force and effect, during such use and occupancy, public liability insurance in the amount of not less than $300,000.00 per accident for property damage and $300,000.00 for public liability for accidental bodily injuries or death occurring in relation to or arising out of the permittee's maintenance, occupancy or use of the right-of-way.





(2) The city shall have the right at any and all times upon 30 days' written notice by certified mail to the permittee, its representatives, successors or assigns to take possession of and use all or any part of such city right-of-way in the event that such use be desired and needed by the city as determined by the city council for street, sewer, transportation or any other public or municipal purpose or use. In such event, the city shall have the right to cancel his license and permit as to the portion of the property or part of the right-of-way so designated and required by the city.

(3) The permittee shall have the right at any time upon 30 days' written notice to the city to relinquish and give up to the city the use and possession of all or any part of the property or right-of-way described in the permit as it and the city may so cancel the license and permit as to that part so relinquished and given up.

(4) All privileges, licenses and permits granted hereunder shall, subject to the terms and provisions of this section and unless not otherwise renewed or extended, remain in force and effect for a period not to exceed ten years from and after the issuance of the permit hereunder. Should a franchisee's franchise expire or terminate sooner than said ten years, any permits held by the franchisee shall terminate simultaneously. Upon the termination of the privilege and permit issued hereunder and unless otherwise provided for by any franchise agreement, permittee, assigns, successors and representatives bind and obligate themselves to restore the city's right-of-way occupied under the provisions of the permit to the original condition of such right-of-way as it existed prior to any construction or to fulfill any other condition for the continued existence of the structure or restoration of the right-of-way which may be acceptable to the city council, and should the permittee, assigns, successors or representatives fail or refuse to do so within 30 days after such termination, then, in that event the city may do or have done the work necessary for such purpose at the sole cost, risk and liability and expense of permittee, their assigns, successors and representatives.

(5) After the completion of any construction within the city's right-of-way under the terms of a permit granted hereunder, should the city desire to lay or construct its utility lines including sewer lines, water lines or any other pipe or conduit under, across or along said street within its right-of-way, any and all additional cost in the laying or construction of the aforesaid utility lines including pipes and conduits within said street right-of-way which may occur by reason of the existence of the construction or occupancy granted to permittee under the terms hereof shall be paid to the city by the said permittee, his assigns, successors and representatives.

(6) By the acceptance of such permit the permittee, his assigns, successors and representatives agree, obligate and bind himself or itself to indemnify and does hereby indemnify and hold and save forever harmless solely the city, insofar as said city is concerned from all liability, cost or damage on account of the use, occupancy or maintenance of any part of the city's right-of-way and the structures and improvements therein. This indemnity shall continue in force and effect during the existence of any permit or permits issued under the provisions of this section.

(7) No transfer or assignment of any permit granted under the terms and provisions of this section shall be made without the approval of the city council.

(8) No permittee shall knowingly cause, permit or allow any advertising materials, posters, billboards, handbills of any nature whatsoever to be posted, distributed or allowed to remain within any structure or upon the premises of the public transportation structure for which such permittee holds authority to use or occupy the city's right-of-way pursuant to this section; provided, however, an incidental use of a structure for advertising purposes by a permittee shall be lawful if the permittee holds a franchise granting such privilege upon such terms and conditions as the city council may impose.

(g) The breach or violation of any one of the terms, provisions or conditions set forth in subsections (e) and (f) hereof shall be sufficient to constitute grounds for the cancellation and forfeiture of the





privilege, license and permit granted under the authority of this article. Any such cancellation and forfeiture may be exercised upon 20 days' written notice by the city to the permittee, a representative or successor unless at the expiration of such time any such violation or breach has ceased or the permittee is proceeding with all diligence and good faith to remedy such violation or breach and thereafter continues without delay with such remedial work or correction until such violation or breach has been completely remedied.

(h) It is the intent of the city council by the enactment of this section to regulate the surface, use and occupancy of public rights-of-way by persons as defined herein, specifically those landowners and their lessees abutting the city right-of-way and franchisees in accordance with the city's general power of exclusive dominion, control and regulation of the public streets and highways as provided by law. However, this section shall not be construed as an assertion by the city of any property rights in derogation of the abutting landowner's fee simple title in those cases where the city does not own the fee simple title.

(Code 1968, § 41-200; Ord. No. 72-1850, § 1, 10-11-72; Ord. No. 78-1870, § 1, 9-20-78; Ord. No. 79-1281, §§ 1, 2, 8-7-79; Ord. No. 90-635, § 124, 5-23-90; Ord. No. 93-514, § 82, 5-5-93; Ord. No. 02-399, § 83, 5-15-02; Ord. No. 08-52, § 67, 1-16-08, eff. 1-26-08; Ord. No. 2011-1168, § 13, 12-14-2011)




ARTICLE IX. PIPELINES, CONDUITS, ETC., ACROSS, ALONG OR UNDER STREETS


ARTICLE IX. PIPELINES, CONDUITS, ETC., ACROSS, ALONG OR UNDER STREETS [6]


Sec. 40-229. Violations of article.

Sec. 40-230. Scope of article.

Sec. 40-231. Permit ordinance required.

Sec. 40-232. Application process.

Sec. 40-233. Form of permit ordinance.

Sec. 40-234. Conditions of permit ordinance.

Sec. 40-235. Effect of other laws.



For the purposes of this article, the following terms have the meaning ascribed to them in this section, unless the context clearly indicates otherwise:

Abandoned pipeline means a pipeline in any portion of a street that the permittee has permanently disconnected from an operating pipeline.

Director means the director of the city's public works and engineering department or his or her designee.

Effective date means the effective date of this article which is December 11, 2001.

Emergency refers to an incident that may cause an immediate threat to public health, safety, or welfare, including an incident in which any of the following has occurred, is occurring or is imminent: (i) fire or explosion not initiated by the permittee as part of its operations, in accordance with accepted safety practices; (ii) release of an explosive gas, hazardous liquid or chemical that could adversely affect the environment or health of individuals, livestock, domestic animals, and wildlife; (iii) death of any person; (iv) bodily harm of any person that results in loss of consciousness, the need to assist a person from the scene of an incident or the necessity of medical treatment in excess of first aid; (v) damage to private or public property not owned by the permittee in excess of $5,000.00 in combined values; or (vi) the rerouting of traffic or evacuation of buildings.

Existing pipeline means a pipeline, including an abandoned pipeline, in any portion of a street as of the effective date of this article.

Gathering system means a pipeline or system of pipelines, in any portion of a street, operated as incident to the development or operation of an oil and/or gas field within or adjacent to the corporate limits of the city, including but not limited to lines for gathering liquids or gases from wells, tanks, or field pumping stations, for the transportation of water (including salt water) for mineral drilling and production purposes, and for transportation of liquids or gases produced from the field to other locations within the field for operational, gathering, or drilling purposes or to a gas plant or pipeline not included in such gathering system.

New pipeline means a pipeline other than an existing pipeline in any portion of a street.

Permit ordinance means a permit ordinance enacted by city council pursuant to this article.





Permitted affiliate means a person controlling, controlled by, or under common control with permittee, which has (or for which permittee has) agreed, in a form approved by the city attorney, to unconditionally assume all duties, obligations, and liabilities of permittee under this article and/or a permit ordinance, without regard to the legal status of such person.

Permittee means a person, its successors and assigns, and permitted affiliates named in a permit ordinance.

Person means an individual, corporation, joint venture, partnership, limited liability company, limited partnership, limited liability partnership, municipality, or other legal entity, including but not limited to trustee, assignee, receiver, and personal representative.

Pipeline means a system of physically connected lines of pipe through which gas or liquids move in transportation and which are operated as a single unit under normal operating conditions, including but not limited to spurs, laterals, valves, corrosion protection devices, and other appurtenances attached to and part of the operation of the line of pipe. Each gathering system shall be treated as one pipeline for all purposes of this article and each permit ordinance.

Street means, but is not limited to in any manner, the surface, land below and airspace above any public street, road, avenue, highway, freeway, bridge, tunnel, alley, boulevard, sidewalk, parkway, lane, drive, circle, or other public right-of-way (each irrespective of its extent of public use or whether opened to vehicular traffic) in the corporate limits of the city, as may be established from time to time. "In" the street means across, along, under, or over a street.

(Ord. No. 01-1078, § 2, 12-5-01)

Sec. 40-229. Violations of article.

(a) It shall be a violation of this article for a person to knowingly make a material misrepresentation of any information reported under this article or to own, maintain, operate, acquire, construct, or extend a pipeline in the street except in accordance with the provisions of this article.

(b) A material and willful violation of any section, subsection, or part of this article may be subject to a fine of not more than $1,000.00, which shall be assessed per day following any failure to comply within 15 business days after notice from the director.

(c) The city shall be entitled to injunctive relief in a court of appropriate jurisdiction to prevent violation of or to compel compliance with the provisions of this article, in addition to all other rights and remedies available to the city.

(Ord. No. 01-1078, § 2, 12-5-01)

Sec. 40-230. Scope of article.

This article applies to each pipeline in a street or streets. No permit ordinance shall authorize the transport or distribution of natural gas by a permittee or applicant whose use of streets is subject to city action or approval under Texas Revised Civil Statutes article 1175. Nothing contained in this article shall preclude the city imposing other or additional fees or charges for the use or presence of pipelines in its streets if the city is required or allowed to assess such fees or charges pursuant to Texas Tax Code § 182.025, or other applicable federal, state or local law, now or hereafter existing, which authorizes the city to make a charge for the use of its streets in excess of the charges set forth in section 40-234(f) of this Code. Such other fees or charges, if assessed by the city, shall be in lieu of the charges set forth in section 40-234(f) of this Code, but the remaining terms and provisions of any permit ordinance then in effect shall remain in full force and effect, save and except of any conflict with the applicable law under which the other fees or charges are assessed.





(Ord. No. 01-1078, § 2, 12-5-01)

Sec. 40-231. Permit ordinance required.

No person may own, maintain, operate, acquire, construct, or extend a pipeline in a street except in accordance with a permit ordinance enacted in accordance with this article.

(Ord. No. 01-1078, § 2, 12-5-01)

Sec. 40-232. Application process.

(a) Application for a permit ordinance shall be made to the director and shall include:

(1) For all existing pipelines:

(a.) Maps or schematic drawings, in a format to be approved by the director, showing the route within the city of each pipeline including its location and elevation in every street (elevation need not be supplied for gathering systems, or if not economically feasible);

(b.) The diameter, normal operating pressure range and the maximum allowable operating pressure of each existing pipeline, other than a gathering system, within the city;

(c.) The materials transported by each existing pipeline within the city;

(d.) The location of shutoff valves for every segment of a pipeline in a street;

(e.) The business address and telephone number of the person responsible for the operation of each existing pipeline;

(f.) The business address and telephone number of the owner of each existing pipeline;

(g.) The telephone number of at least one emergency contact available on a 24-hour basis; and,

(h.) Such other information as the director shall reasonably request.

(2) Certificates of insurance for the coverages set forth in this article; and;

(3) The name, address and telephone number of permittee and the names of its permitted affiliates, if any.

(b) If the application is in compliance with the terms of this article the director shall recommend to the city council that it enact a permit ordinance.

(c) If the director believes the application is not in compliance with the terms of this article, the director shall notify the applicant in writing of the specific deficiencies found.

(d) If the applicant re-files its application and/or amends its application to correct all deficiencies noted by the director, the director shall recommend to the city council that it enact a permit ordinance.

(e) A permit ordinance will constitute permit for pipelines owned or operated by the permittee or any permitted affiliate designated by the permittee in its application. Permittee may add additional permitted affiliates under its permit from time to time by submitting to the director a suitable written assumption by or on behalf of the permitted affiliates of all duties, obligations, and liabilities of a permittee under this article in accordance with section 40-234(m) of this Code.

(f) The director shall endeavor to process applications within 120 days after their submittal, refiling, or amendment, as applicable.

(Ord. No. 01-1078, § 2, 12-5-01)





Sec. 40-233. Form of permit ordinance.

Every permit ordinance enacted pursuant to this article shall permit, on the conditions provided in this article, the construction, operation, maintenance, improvement, repair, and replacement in the street of pipelines (including new pipelines constructed pursuant to construction permits granted under subsection (c) of section 40-234) owned or operated by permittee or any designated permitted affiliate and within the scope of this article. The city attorney shall prepare each permit ordinance recommended by the director consistent with this article.

(Ord. No. 01-1078, § 2, 12-5-01)

Sec. 40-234. Conditions of permit ordinance.

(a) Term. The term of the permit ordinance, subject to the termination provisions, shall be for a period of a maximum of 30 years from and after its effective date.

(b) Material transported. Permittee may operate pipelines authorized under the permit ordinance for the purpose of transporting the material or materials indicated in the application or in accordance with any notice filed with the director pursuant to subsection (d) below. If permittee changes the material transported in a pipeline, the permittee shall notify the director in accordance with subsection (d) below.

(c) Permit for new pipeline.

(1) Application requirements. From time to time during the term of a permit ordinance, permittee may file an application to construct a new pipeline (including an extension of a previously constructed pipeline) in a street. To apply, permittee shall submit to the director the information set forth in section 40-232(a)(1) of this Code. Notwithstanding anything contained in this article or in any permit ordinance to the contrary, the director shall not approve any application for a new pipeline (other than a replacement pipeline) which is intended to be constructed so as to run within and parallel to the right of way of a street for a distance of 5,000 or more consecutive feet, unless expressly authorized by the city council.

(2) Permit approval process. If permittee has supplied the required information to the director, and the director determines that the new pipeline will not unduly interfere with the construction, maintenance, or use of any existing or planned public work or utility in the affected streets, the director shall permit the new pipeline by issuing an addendum to the existing permit ordinance. If the director does not approve the application, the director will notify permittee in writing of the basis of the failure to approve, and permittee may re-file its application to cure any deficiency capable of cure by permittee. The director shall endeavor to process applications within 120 days after their submittal, or refiling.

(3) Construction permit required. Permittee shall not construct or cause to be constructed a new pipeline in a street without obtaining a permit for such construction from the director in accordance with this subsection.

(d) Updating information. Permittee shall update permit information within 30 days after changes occur. Permittee shall not transport in a pipeline any material other than materials set forth in its application and prior notices, or operate pipelines in excess of their maximum operating pressure or disable any shutoff valve, without notifying the director of such change ten days or more prior to such change. Upon request by the director, made no more frequently than annually, permittee shall certify in writing to the director that permittee's information filed with the city is true, correct and complete.

(e) Abandoned pipeline.





(1) Permittee shall notify the director of the location of each abandoned pipeline owned by permittee in the street as of the effective date and, on request, notify the director of the manner in which such pipeline has been retired from service, to the extent such information is available.

(2) In the event a pipeline that is permitted under a permit ordinance becomes an abandoned pipeline, permittee shall notify the director as soon as practicable. The director may request the permittee to remove such abandoned pipeline from the street (and if objected to by permittee, only if city council so directs), and in such instance, permittee shall obtain all building permits and street-cut permits, and effect such removal within 120 days.

(3) Permittee shall not be required to pay any fees under its permit ordinance for an abandoned pipeline following the date of its abandonment, however, permittee shall not be allowed any credit or rebate for any fees previously paid for an abandoned pipeline.

(f) Fees. Permittee shall pay the applicable fees stated for this provision in the city fee schedule to the city on or before the stated due date.

For purposes of this subsection, a permittee and its permitted affiliates shall be considered to be one person. The foregoing fees are commensurate with the city's expenses in administering, supervising, inspecting, and regulating pipelines in streets. The city does not waive by assessing the foregoing fees and expressly reserves its right (i) under Texas Tax Code § 182.025 to make a reasonable lawful charge for the use of a street in the city by a public utility, as defined therein, to distribute gas, and (ii) to assess any other lawful fees or charges.

(g) Miscellaneous. All costs and expenses connected with a pipeline, including without limitation costs and expenses for the operation, maintenance, repair, and insurance of the pipeline, shall be permittee's sole responsibility. The pipeline and the internal or external, structural, electrical or mechanical apparatus and hardware included therein shall at all times during the term of the permit ordinance be the sole property of permittee or the person for whom permittee operates the pipeline. Furthermore, throughout the term of a permit ordinance, permittee shall at all times, maintain, operate and repair the pipeline in accordance with all applicable laws. The city retains the right to make visual, non-invasive inspections of the pipeline and on request of the director from time to time, to require permittee to provide available records or data to demonstrate its current compliance with the terms of this article.

(h) Restoring streets. In installing, maintaining, repairing or removing a pipeline, permittee shall not disturb water mains or sanitary or storm sewers without the approval of the director, except during an emergency. Permittee shall, at its sole cost and expense, refill and repair (including by repaving any cut in any pavement or sidewalk) all excavations made by permittee in the street or any adjacent public right-of-way or other city property and all damage to water mains and sanitary and storm sewers in connection with the maintenance, operation, repair or removal of any pipeline.

In the event that permittee fails to commence or thereafter to diligently prosecute any required repair, refilling or other work so required to be done by the permittee, following notice and opportunity to cure as provided for in this article, then the city may cause such work to be done and may recover all costs thereof from permittee together with all court costs and reasonable attorney's fees.

(i) Removal. The city council reserves the right, subject to the terms of this article, to require permittee to remove a pipeline from the street and cause the street to be restored to the same condition, or in as good a state of repair or condition, as said street was in prior to placement or removal of the pipeline, whenever required to maintain the safe condition of the city's use of the street or for the construction of public works.

(j) Other ordinances. Permit ordinances issued under this article are in all respects subject to the charter and ordinances of the city, including but not limited to section 40-4 of this Code, article V of this chapter, the regulations issued pursuant to section 40-128 of this Code, the Construction Code, the Fire Code, and such future charter provisions and ordinances as may be hereafter passed and





adopted by the city, except that (i) the insurance and indemnity provisions of this section shall pre-empt the requirements of sections 40-136(b)(8) and 40-147 of this Code and (ii) sections 40-143 and 40-145 of this Code shall not apply to pipelines within the scope of this article.

(k) Relocations. When found necessary by the director to facilitate the construction of public works, permittee shall lower, adjust or remove a pipeline in a street. It is the purpose of this subsection that improvements, changes and alterations in existing streets covered by this article, including right-of-way and water, sanitary sewer or storm sewer lines, shall in no wise be hampered by permittee's pipeline. All work incident to the lowering and/or relocation of permittee's pipeline, or of removing a permittee's pipeline pursuant to subsection (i) of this section, shall be done at the sole expense of permittee, unless there was no street, street easement or public way at such location prior to the installation of the pipeline or pipeline easement, in which case the city shall bear the expense of relocation or removal. In the event of a dispute, permittee shall bear the burden of proving no prior street or street easement.

(l) Successors. The permit ordinance and all limitations and obligations imposed thereby and under this article shall inure to the benefit of and be binding upon the successors, in law or otherwise, of permittee.

(m) Acceptance of permit ordinance. Permittee shall file a written acceptance of the permit ordinance with the city secretary within 30 days after the date of passage thereof and shall thereupon be bound by all of the terms and conditions hereof. Such written acceptance shall constitute, whether or not expressly stated therein, an acceptance of and agreement to observe and perform all limitations and obligations contained in this article. A permit ordinance shall commence and inure to the benefit of permittee, effective immediately upon the filing of such written acceptance by permittee. An acceptance by permittee or a permitted affiliate satisfies the requirements of this subsection if it is in writing, signed in the name of such person by an authorized officer, addressed to the city, and provides substantially as follows:

'[Name of permittee or permitted affiliate] [, on behalf of itself and each permitted affiliate named therein,] hereby fully accepts City of Houston Ordinance No. [number of permit ordinance] and expressly agrees to fully observe and fully perform all limitations and obligations contained in chapter 40, article IX, Code of Ordinances, City of Houston, and further certifies to the city all of permittee's information filed with the city in connection with the issuance of such permit ordinance is true, correct and complete.'

If permittee or a permitted affiliate is an entity other than a natural person, such entity shall file with such acceptance a copy of its corporate resolution or other document ("authorization") appropriate to demonstrate that such entity is duly authorized to accept the permit.

(n) Enforcement. The city attorney or his designee shall have the right to enforce all legal rights and obligations under the permit ordinance without further authorization. Permittee shall provide to the director, director of administration and regulatory affairs and city attorney documents and records that the director, director of administration and regulatory affairs and city attorney deems reasonably necessary to determine permittee's compliance with the permit, with the exception of those documents made privileged and/or confidential by federal or state law or regulation or any documents that would be privileged under the Texas Rules of Civil Procedure.

(o) Indemnity; release. Permittee shall release, protect, defend, and hold harmless the city, its employees, officers, and legal representatives (collectively in this section, the "city") from any and all permittee and/or third party claims, demands, and liability, including defense costs, relating in any way to damages, claims, or fines (collectively, "claims") arising by reason of or in connection with: (1) the city's actual or alleged negligence arising solely from the grant of, administration of, or operations under a permit ordinance, including but not limited to the city's approval of work plans, city inspection of the permittee's pipelines or the repair or maintenance thereof, the city's receipt or failure to receive





insurance policies, or similar acts or omissions of the city in connection with its rights, duties, or obligations under the permit ordinance together with (2) permittee's actual or alleged negligence in the construction, maintenance, or operation of its pipelines in the rights of way under the permit ordinance, provided, however, that the permittee shall not be required to indemnify or pay the defense costs of the city where: (1) the claims arise in whole or in part out of permittee's compliance with the city's directives (other than those ordering compliance with applicable laws, ordinances, rules, or regulations) relating to the time, place, or manner of the activities of permittee alleged or found to be negligent; and additionally (2) there is a finding in a final, nonappealable order or judgment that the city is 51 percent or more at fault.

(p) Insurance. Permittee shall provide and maintain in full force and effect during the term of its permit ordinance at least the following insurance:

(1) Worker's compensation at statutory limits;

(2) Employer's liability, including bodily injury by accident and by disease, for $500,000.00 combined single limit per occurrence and a 12-month aggregate policy limit of $1,000,000.00;

(3) Commercial general liability coverage, including blanket contractual liability, products and completed operations, personal injury, bodily injury, broad form property damage, operations hazard, pollution, explosion, collapse and underground hazards for $5,000,000.00 per occurrence and a 12-month aggregate policy limit of $10,000,000.00; and

(4) Automobile liability insurance (for automobiles used by the permittee in the course of its performance under the permit, including employer's non-ownership and hired auto coverage) for $2,000,000.00 combined single limit per occurrence.

The director of administration and regulatory affairs shall adjust the above minimum liability limits every five years during the term to compensate for the effects of inflation and with the objective to reestablish the value of coverage required as of the effective date.

Each policy or an endorsement thereto, except those for worker's compensation and employer's liability, shall name the city and its officers, employees and agents as additional insured parties, but limited to risks indemnified pursuant to subsection (o) of this section. If any such policy is written as "claims made" coverage and the city is required to be carried as an additional insured, then permittee shall purchase policy period extensions so as to provide coverage to the city for a period of at least two years after the last date that the permit ordinance is in effect. No deductible shall exceed ten percent of the minimum limits of liability or one percent of the consolidated net worth of permittee and its permitted affiliates, whichever is greater.

Permittee shall assume and bear any claims or losses to the extent of deductible amounts and waives any claim it may ever have for the same against the city and its officers, agents or employees in respect of any covered event.

All such policies and certificates shall contain an agreement that the insurer shall notify the director of administration and regulatory affairs in writing not less than 30 days before any material change, reduction in coverage or cancellation of any policy. Permittee shall give written notice to the director of administration and regulatory affairs within five days of the date upon which total claims by any party against permittee reduce the aggregate amount of coverage below the amounts required by the permit.

Each policy must contain an endorsement to the effect that the issuer waives any claim or right in the nature of subrogation to recover against the city, its officers, agents or employees.

Each policy must contain an endorsement that such policy is primary insurance to any other insurance available to the city as an additional insured with respect to claims arising thereunder.





Permittee shall be entitled to purchase and maintain the insurance required under this subsection under so-called "blanket policies," provided the coverage thereunder is at least at the levels contained herein and is otherwise adequate in keeping with prudent underwriting standards.

At the time of application, and at the director of administration and regulatory affairs' request, permittee shall provide certificates of insurance reflecting that the terms of this subsection have been met. Notwithstanding the proof of insurance requirements set forth in this subsection, permittee, throughout the term of its permit, continuously and without interruption, shall maintain in force the required insurance coverages set forth in this subsection.

In lieu of maintaining policies of insurance described in this subsection, permittee may elect to self-insure against the risks described in this subsection, provided that permittee submits to the director documents showing either (i) self-insurance reserves or other assets sufficient to pay judgments equal to the minimum limits of liability set forth in this subsection, or (ii) a net worth that exceeds ten times the aggregate minimum limits of liability set forth in this subsection. If, during the term of a permit ordinance, any such self-insurance program ceases or the self-insured's assets, reserves or net worth are no longer adequate to provide the above coverages, permittee shall immediately notify the city of such lapse of coverage and obtain or cause to be obtained commercial insurance in accordance with the requirements of this subsection within 30 days. If permittee self-insures, permittee has a duty to defend the city in the same manner as a permittee with insurance in any suit seeking damages against the city in connection with permittee's pipeline, and permittee will pay all costs and expenses of such defense or reimburse the city for all costs and expenses incurred by the city for such defense."

(q) Events of termination. A permit ordinance issued under this article shall, at the option of the city council, terminate (as to the affected pipeline or portion thereof only in the event of an occurrence under items (1), (5) or (6) of this subsection) upon the occurrence of any one or more of the events described below (collectively referred to herein as 'events of termination'). Each event of termination is a separate and independent basis for termination of the permit (or application thereof to the affected pipeline or portion thereof, as applicable). The events of termination are as follows:

(1) The city council, in its legislative discretion, determines that the existence or operation of a pipeline, or any part thereof, constitutes a hazard, nuisance or other threat to the public health, safety or welfare or that the existence or continued operation of the pipeline, or any part thereof, interferes with the current or prospective use of a street. Termination under this subsection shall be by ordinance and become effective after permittee has been given 180 days' notice of such termination, unless circumstances comprising a bona fide emergency and an imperative public necessity warrant more immediate termination.

(2) Expiration of the term of the permit ordinance.

(3) Permittee fails to timely pay any of the fees herein provided for or is delinquent in the payment of any charges due under the permit ordinance.

(4) Permittee fails to maintain at any time the insurance as required in this article.

(5) Permittee fails to commence or thereafter to diligently prosecute to completion any required maintenance, repair or other work required by this article to be done by permittee within 30 days after being notified of such required action by the director. In the event of an emergency, notice shall be deemed given and received after telephone contact with an authorized officer or director of permittee, and permittee shall commence the requested repairs within 24 hours.

(6) Permittee abandons the pipeline.

(7) Permittee fails to file a written acceptance of the permit ordinance within the time and in the manner prescribed in this article.





(8) Permittee fails to comply with any of the terms, conditions or provisions of the permit ordinance or this article.

(9) Permittee commences dissolution or some other similar proceeding that would impair, modify, alter, extinguish or significantly change permittee's ability to perform permittee's obligations under the permit ordinance.

Upon the occurrence of an event of termination described in item (1) or (2) of this subsection, such an event of termination may not be cured by permittee and the permit ordinance shall terminate (only as to the affected pipeline in the event of termination pursuant to item (1), (5), or (6) of this subsection) in the manner and in accordance with the applicable provisions of said subsections and the permit ordinance. Upon the occurrence of one or more of the events of termination other than in item (1) or (2) of this subsection, the director or director of administration and regulatory affairs shall so notify permittee in the manner provided in the permit ordinance. After such notice, permittee shall have 30 days in which to cure the event of termination. Should permittee fail or refuse to cure the event of termination within the 30-day time period prescribed, city council may terminate the permit ordinance (only as to the affected pipeline or portion thereof in the event of termination pursuant to item (5) or (6) of this subsection; provided that if permittee commences efforts to cure such event of termination within 30 days after receipt of such written notice and thereafter prosecutes such efforts with reasonable diligence in the sole determination of city council until such event of termination is cured, then such event of termination shall cease to exist and no action to terminate the permit ordinance or an application thereof will be taken. Failure of the city to enforce its rights and remedies under this section with respect to one event of termination shall not operate as a waiver of the city's right to thereafter enforce its rights and remedies with respect to any such continuing event of termination or another event of termination. Termination of the permit ordinance or an application thereof shall not waive, release or satisfy any duty, covenant or obligation of permittee under this article or the permit ordinance which permittee has not fully performed as of the time of termination.

(r) Transfer of authority.

(1) Notice. A person may acquire and own pipeline prior to being permitted pursuant to this article if (i) the permittee notifies the city within ten days of the transfer of ownership, and (ii) permittee retains all responsibilities associated with the permit until the city approves the transfer of the permit.

(2) Prohibition. Neither the permit ordinance nor the permit granted thereby may be assigned, in whole or in part, without the prior consent of the city council expressed by resolution or ordinance, and then only under such conditions as may therein be prescribed. No assignment in law or otherwise shall be effective until the assignee has filed with the director an instrument, duly executed, reciting the fact of such assignment, accepting the terms of this article, and agreeing to comply with all of the provisions of the permit ordinance. A mortgage or other pledge of assets in a bona fide lending transaction shall not be considered an assignment for the purposes of this section.

(3) Process. Upon receipt of a request for consent to an assignment, the director shall diligently investigate the request in a timely manner and recommend placement of the request on the city council agenda at the earliest practicable time. The city council shall proceed to act on the request within a reasonable period of time.

(4) Scope of review. In reviewing a request for consent to an assignment, the city may inquire into the technical and financial qualifications of the prospective assignee, and permittee shall assist the city in so inquiring.

(5) Assignments not requiring approval. Notwithstanding anything to the contrary contained in this section, the approval of the city shall not be required for any assignment (1) to any permitted affiliate; (2) to any entity with which permittee or an affiliate of permittee shares joint ownership





of the pipeline, as long as permittee is retained as the manager of day-to-day pipeline operations; or (3) to any entity that is a holder of a then current permit ordinance enacted by the city on or after the effective date. Permittee shall give written notice of such assignment to the director.

(6) Release. Upon receiving the director's consent to an assignment or, in the event of an assignment qualifying under subsection (r)(5), upon giving notice under subsection (r)(5), the assigning permittee shall be relieved of all conditions, obligations, and liabilities arising or which might arise under the assigned permit, from and after the date of assignment.

(s) Cathodic protection. Any cathodic protection system used with permittee's pipelines shall not cause any existing public facilities in the vicinity of the pipeline and known to permittee to be sacrificed or experience materially accelerated corrosion as a result of the operation of such cathodic protection system.

(Ord. No. 01-1078, § 2, 12-5-01; Ord. No. 02-399, § 84, 5-15-02; Ord. No. 08-52, §§ 68, 69, 1-16-08, eff. 1-26-08; Ord. No. 2011-1168, § 13, 12-14-2011)

Sec. 40-235. Effect of other laws.

The provisions of this article shall be subject to any federal and state legislation, rules, or regulations, presently or hereafter enacted or adopted, to the extent that said laws and regulations preempt or supersede the authority of the city with respect to this article or any provision hereof.

(Ord. No. 01-1078, § 2, 12-5-01)


FOOTNOTE(S):

--- (6) ---

Cross reference— Oil and gas wells, Ch. 31; installation of pipelines for oil and gas wells under public property, § 31-46 et seq. (Back)



ARTICLE X. PAVING ASSESSMENTS


ARTICLE X. PAVING ASSESSMENTS [7]

Sec. 40-250. Declaration of policy.


Sec. 40-252. Reduction of excess assessment—Amount.

Sec. 40-253. Same—Procedure.

Sec. 40-254. Obligation for payment of equivalent assessment.

Sec. 40-255. Satisfaction of amount due.



It is hereby declared to be the policy of the City of Houston that a dwelling claimed as a residence homestead which is located in an area where deed restrictions do not exist, or where such restrictions are of doubtful enforceability, shall, for paving assessment purposes, be treated similarly to a dwelling located in an area having enforceable deed restrictions, to the extent that is practicable.

(Ord. No. 87-285, § 1, 2-25-87)


The following words and phrases shall be defined as follows:

(1) Eligible, when used to modify "unrestricted homestead property," as herein defined, shall mean that the ordinance closing the hearing and assessing the benefits has not been adopted at the time of the effective date of this article.

(2) Equivalent assessment shall mean that part of the paving assessment on an eligible unrestricted homestead property which would be applicable to a similar restricted dwelling.

(3) Excess assessment shall mean the amount by which an assessment on an eligible unrestricted residence homestead property exceeds the assessment on a similar restricted dwelling.

(4) Exemption shall mean a residence homestead exemption recognized by the H. C. A. D., as herein defined.

(5) H. C. A. D. shall mean the Harris County Appraisal District, or where appropriate, any other governmental entity or agency which has, or previously had, authority to recognize residence homestead exemptions.

(6) Owner shall mean one or more persons who have legal title to an unrestricted residence homestead property.

(7) Restricted dwelling shall mean a dwelling located in an area which has enforceable deed restrictions.

(8) Unrestricted residence homestead property shall mean a dwelling claimed as a homestead and located in an area having no deed restrictions, or where such deed restrictions are of doubtful enforceability.





(Ord. No. 87-285, § 1, 2-25-87)

Sec. 40-252. Reduction of excess assessment—Amount.

The personal obligation of the owner of an eligible unrestricted residence homestead property for payment of the excess assessment levied against such property may be reduced and cancelled by one-tenth of the amount of such excess assessment for each year of occupancy in which the owner has received an exemption from the H.C.A.D. and furnishes proof thereof to the department of finance.

(Ord. No. 87-285, § 1, 2-25-87; Ord. No. 08-52, § 70, 1-16-08, eff. 1-26-08)

Sec. 40-253. Same—Procedure.

An owner desiring to reduce and cancel the amount of the excess assessment on eligible unrestricted residence homestead property shall:

(1) Apply to the finance department of the city for the reduction and cancellation of the excess assessment;

(2) Furnish with such application proof satisfactory to the finance department that the eligible unrestricted residence homestead property was occupied by the owner at the time the initiation ordinance for the paving improvement was passed;

(3) Furnish proof the owner had received an exemption from the H.C.A.D. for the year in which the initiation ordinance was adopted; and

(4) Annually furnish proof to the finance department of the city that the H.C.A.D. has continued to grant an exemption for such eligible residence homestead property so long as the owner remains qualified to claim a reduction or cancellation of the excess assessment as herein provided.

(Ord. No. 87-285, § 1, 2-25-87; Ord. No. 08-52, § 71, 1-16-08, eff. 1-26-08)

Sec. 40-254. Obligation for payment of equivalent assessment.

The personal obligation of the owner for payment of the equivalent assessment, if any, shall continue in force without regard to the reduction or cancellation of the excess assessment, and the owner shall be obligated to pay interest on the unpaid balance thereof as provided in the ordinance closing the hearing and assessing the benefits. If the exemption terminates before cancellation of the excess assessment, the balance thereof shall become a personal obligation of the owner or the owner's estate and interest thereon shall accrue at the rate provided in the ordinance closing the hearing and assessing the benefits from the date of the loss of the exemption.

(Ord. No. 87-285, § 1, 2-25-87)

Sec. 40-255. Satisfaction of amount due.

Upon final and complete payment of the equivalent assessment, if any, and the cancellation or payment of the balance of the excess assessment, the city will furnish to the owner or the owner's successor in interest, a recordable instrument acknowledging the full and final satisfaction of the amount owed by the owner or the owner's estate.

(Ord. No. 87-285, § 1, 2-25-87)






FOOTNOTE(S):

--- (7) ---

Cross reference— Taxation generally, Ch. 44; paving assessment lien releases—Authority to execute § 44-20. (Back)



ARTICLE XI. SIDEWALK SALES AND PERFORMANCES


ARTICLE XI. SIDEWALK SALES AND PERFORMANCES











(a) This article shall control and govern certain sales of merchandise and sidewalk performances within a portion of the downtown area that is associated with the theater/entertainment district.

(b) The following words, terms, and phrases, when used in this article, shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicates another meaning:

Director shall mean the director of the city's department of public works and engineering and shall include the director's designees.

Fee owner shall mean the holder of the fee title or other person having the present right of possession and control of the real property abutting the sidewalks. In those instances where the city is the fee owner, then it shall mean the department director of the city department responsible for maintenance and control of the property. No provision herein shall be construed to require any city department director to grant permission for the use of any city property or to waive the payment of any applicable concession or use fee.

Food shall have the meaning ascribed in section 20-18 of this Code.

Food vendor shall mean a person who sells food from a mobile food unit.

Merchandise vendor shall mean a person engaged in the sale of artwork, souvenirs, or fresh flowers, or any combination thereof.

Mobile food unit or unit shall mean a food service establishment, mounted on wheels, designed to be readily movable, and propelled solely by human power.

Performers shall mean and include bands, musicians, singers, mimes, and other artists who perform for gratuities on the sidewalk without the use of any electronically amplified instruments and without electronic amplification of sound produced.

Permit shall mean a current, valid permit issued by the director pursuant to the terms of this article to a function as either a vendor or a performer.

Permittee shall mean the holder of a permit as either a vendor or a performer issued by the director under this article and includes the permit holder's agents, employees, and subcontractors.

Sidewalk shall mean that portion of the street right-of-way that is improved for pedestrian use.

Theater/entertainment district shall mean the area including to the mid-point of and bounded by Preston Street on the north, Dallas Street on the south, Milam Street on the east, and Interstate Highway 45 on the west.

Vendor shall mean a person engaged in the sale of food or nonfood merchandise on the sidewalk.





DIVISION 2. PERMIT


DIVISION 2. PERMIT



Sec. 40-264. Fees.

Sec. 40-265. Permit—Issuance or denial.

Sec. 40-266. Same—Revocation.

Sec. 40-267. Other permit provisions.

Sec. 40-268. Referral to other departments.

Sec. 40-269. Food vendors—Additional conditions for permits.

Sec. 40-270. Same—Unsafe or unhealthful conditions.

Sec. 40-271. Automatic suspension.

Sec. 40-272. Issuance of regulations.

Sec. 40-273. Notices.



It shall be unlawful for any person who is not a permittee to sell merchandise or food on the sidewalks in the theater/entertainment district or conduct sidewalk performances in the theater/entertainment district.

(Ord. No. 91-1168, § 1, 8-14-91)


Any person desiring to obtain a permit to sell merchandise or food on the sidewalks in the theater/entertainment district or to conduct sidewalk performances in the theater/entertainment district shall file an application with the director on a form prescribed by the director for that purpose. The application shall set forth the following information and be accompanied by the following documents:

(1) The name, mailing address, street address (if different), and telephone number of the applicant, together with a statement as to whether the applicant is an individual, a partnership, or a corporation, and if a partnership, the names of all general partners or if a corporation a copy of the articles of incorporation;

(2) A map showing the proposed location of the specific site(s) desired. The applicant may either designate one site for twenty-four hour use or designate two sites, with one site designated as the daytime site with hours of operation between 7:00 a.m. until 5:00 p.m. and the other site designated as the night time site with hours of operation between 5:01 p.m. until 6:59 a.m.;

(3) The written permission of the abutting fee owner for the use of the site(s);




DIVISION 2. PERMIT


(4) A statement whether the applicant desires a permit as a food vendor, merchandise vendor, or as a performer.

(5) If the applicant seeks a permit as a performer, then a description of the performances to be provided.

(6) If the applicant seeks a permit as a food vendor or a merchandise vendor, then proof that the sales of merchandise or food will be covered by comprehensive general liability insurance with limits of not less than $100,000.00 for death of or injury to one person and $300,000.00 for death of or injury to more than one person and $25,000.00 for property damage, per occurrence, which policy shall name the city as an additional insured, and shall provide that ten days' prior notice be given to the director in the event of cancellation;

(7) A description of the nature, size, and manner of construction of any carts or racks, other display equipment, musical instruments, or theatrical props to be utilized by the applicant which shall be subject to review to insure that the same will not pose a hazard to vehicular or pedestrian traffic;

(8) A food vendor applicant shall provide proof that the mobile food unit has a current and valid mobile food service unit medallion issued under section 20-37 of this Code.

(9) A food vendor applicant shall state whether his operations will be limited to "restricted operations" as defined in section 20-22 of the City Code. If not, then the applicant shall also provide proof that he holds a current and valid food dealer's permit issued under chapter 20 of this Code.

(10) A food vendor applicant shall state whether the mobile food unit will be fueled by liquefied petroleum gas. If so, the applicant shall provide proof that he holds a current and valid permit for the use of liquefied petroleum gas on the mobile unit issued pursuant to article 82 of the Fire Code.

(11) A food vendor applicant shall provide a photograph or graphic representation accurately depicting the unit and a general written description of the unit and shall demonstrate that the unit meets all of the same special requirements that are applicable to mobile food units used by licensed park vendors as specified in section 20-22 of this Code.

(Ord. No. 91-1168, § 4, 8-14-91; Ord. No. 95-279, § 12, 3-15-95)

Sec. 40-264. Fees.

Each application shall be accompanied by the applicable nonrefundable fees stated for this provision in the city fee schedule.

(Ord. No. 91-1168, § 4, 8-14-91; Ord. No. 2011-1168, § 13, 12-14-2011)

Sec. 40-265. Permit—Issuance or denial.

(a) Within ten days of receipt of a permit application, the director shall grant or deny the requested permit and give written notice to the applicant of the decision.

(b) The director shall issue a permit to the applicant on a first applied, first issued basis unless one or more of the following conditions exist:

(1) The applicant failed to supply all of the information requested on the application;

(2) The applicant gave materially false, fraudulent, or untruthful information on the application;




DIVISION 2. PERMIT


(3) The applicant has not fully complied with all state, federal, and local laws or regulations affecting the conduct of its businesses;

(4) The public works and engineering department determines that the application should be denied on the basis of the review conducted under section 40-268 of this Code; or

(5) The application or the applicant does not meet any other requirement of this Code.

(c) In the event that the director determines that an application should be denied, the applicant shall be given notice in writing of the reasons for the denial. An applicant may appeal the decision of the director regarding such denial by filing a written request for a hearing with the director within ten days after he is given notice of such denial. The director's decision on the application shall be final unless an appeal is timely filed. An appeal shall not stay the director's decision on the issuance of a permit. The applicant's written request for a hearing shall set forth the grounds on which the denial is challenged. The hearing shall be conducted by the city's director of administration and regulatory affairs or his designee who shall act as the hearing official under this article. The hearing official shall not have participated in any investigation or decision relating to the denial of the permit. At the hearing, the hearing official shall receive oral and written evidence regarding the application. Hearings shall be conducted under rules issued by the director of administration and regulatory affairs which shall be consistent with the nature of the proceedings and shall ensure that each party may present evidence, cross-examine witnesses, and be represented by legal counsel.

(d) The hearing official shall conduct the hearing within ten days after receipt of the applicant's written request for a hearing, unless the applicant requests an extension in writing. The hearing official shall render written decision and issue notice thereof, to the applicant within five days after the conclusion of the hearing. The written decision of the hearing official shall be final.

(e) Failure of the director to give timely notice of his action on an application or failure of the hearing official to timely conduct or give notice of his decision on an appeal from the director's decision, shall entitle the applicant to the issuance of a temporary permit upon written demand therefor filed by the applicant with the director. Such a temporary permit shall only be valid until the third day after the director gives notice of his action on the application or the hearing official gives notice of his decision on the appeal, as applicable.

(Ord. No. 91-1168, § 4, 8-14-91; Ord. No. 93-514, § 84, 5-5-93; Ord. No. 08-52, § 72, 1-16-08, eff. 1-26-08)

Sec. 40-266. Same—Revocation.

(a) The director shall have the authority to revoke a permit for any one or more of the following reasons:

(1) The permittee gave materially false, fraudulent, or untruthful information on the application;

(2) The permittee failed to fully comply with all state, federal, and local laws or regulations affecting the conduct of its business;

(3) The permit was issued in error;

(4) The permittee has failed to follow the direction of the director or any peace officer of the city to temporarily vacate a site until any undue vehicular and pedestrian traffic congestion or any other unsafe condition was abated; or

(5) The permittee has violated any other provision of this article;

(6) The activities of the permittee are not being conducted in the manner described in the application;




DIVISION 2. PERMIT


(7) For food vendors and merchandise vendors, that the insurance required in section 40-263 has expired or been cancelled without renewal or replacement; or

(8) The written permission of the abutting fee owner for the use of the site(s) has been revoked.

(b) Prior to revocation of a permit, the director shall investigate the grounds alleged to determine whether probable cause for revocation may exist and, if so, shall notify the permittee in writing of reasons for the proposed revocation and grant such permittee the opportunity to appear before a hearing official to be designated by the director of administration and regulatory affairs at a time and place specified within such notice. The hearing official designated shall not have participated in any investigation of the alleged grounds for the revocation. Such hearing shall be held not less than ten days after the notice is given. Hearings shall be conducted under rules issued by the director of administration and regulatory affairs. Such rules shall be consistent with the nature of the proceedings and shall ensure that each party may present evidence, cross-examine witnesses, and be represented by legal counsel. If, after the hearing, the hearing official finds that the permit should be revoked, he shall issue a written order revoking such permit which shall be effective on the third day after notice thereof is given to the permittee. The written decision of the hearing official shall be final.

(Ord. No. 91-1168, § 4, 8-14-91; Ord. No. 08-52, § 73, 1-16-08, eff. 1-26-08)

Sec. 40-267. Other permit provisions.

(a) A permit shall be valid only for the use of the site(s) stated thereon and must be maintained and prominently displayed at the site(s) at all times while in use.

(b) All activities by performers, food, and merchandise vendors will be conducted upon the designated site(s); provided however, that if the director of parks and recreation grants approval for a special event in a city park that is located within the theater/entertainment district and a food or merchandise vendor has selected a site(s) in or within 100 feet of the boundaries of that park, then the vendor applicant agrees that upon notice by an employee of the parks and recreation department of that park event, for the duration of that park event, he shall suspend his operations at that site(s) during the time that the park event is occurring and select an alternative site(s) subject to any approval herein required and located outside of 100 feet of the boundaries of that park.

(c) The permittee shall not install, erect, or maintain any signs on the sidewalk except in the case of food vendors, those permitted on the unit itself.

(d) Sites for mobile food units and merchandise vendors shall be at least 20 feet apart.

(e) Sites for performers shall be at least 130 feet apart.

(f) The size and location of sites must be such that they will not pose a hazard to vehicular or pedestrian traffic.

(g) The permittee shall not install any permanent improvement on the sidewalk.

(h) In the event that activities at any site should cause undue vehicular and pedestrian traffic congestion or any other unsafe condition, then the director or any peace officer of the city may direct the permittee to temporarily vacate the site until the situation has abated, and the permittee shall comply.

(i) All equipment and materials shall be removed from the site at any time that the permittee is not physically present upon the site. If equipment and materials are left unattended, they may be removed. The permittee shall then be liable for all reasonable removal and storage charges.




DIVISION 2. PERMIT


(j) Sales of food or merchandise shall be made only to pedestrians. No food or merchandise shall be offered or sold to any occupant of any vehicle.

(k) Permittees shall remain within their sites and shall not hawk their merchandise or services in any manner, but may respond to inquiries about their merchandise or services.

(l) The permittee shall maintain records of daily gross sales, purchases, and expenses of or from the unit and those records shall be available for inspection by the director upon request. These records need not be available on the unit itself.

(m) The permittee shall be responsible for supervising the conduct of its patrons and employees.

(n) The permittee and his employees shall wear clean outer garments and shall refrain from smoking and eating during working hours.

(o) A permit shall only be valid for the purpose described in the application; a permit issued to a food vendor or merchandise vendor shall not authorize the vendor to act as a sidewalk performer and a permit issued to a sidewalk performer shall not authorize the sidewalk performer to act as a food vendor or merchandise vendor.

(p) A permit may be canceled upon written request of the permittee and surrender of the permit itself to the director. The surrender of a permit shall be effective upon its filing in the office of the director.

(q) A permit shall be personal to the permittee and may not be transferred or assigned.

(r) The permittee shall update and supplement the information provided as a part of his application to ensure that it remains true and correct at all times.

(Ord. No. 91-1168, § 4, 8-14-91)

Sec. 40-268. Referral to other departments.

Each application shall be reviewed by the public works and engineering department under the criteria of subsections (c), (d), (e), and (f) of section 40-267 of this Code and item (7) of section 40-263 of this Code, referred to the department of parks and recreation for review under the criterion of subsection (b) of section 40-267 of this Code, and referred to the department of health and human services for review under the criteria of items (8), (9), (10) and (11) of section 40-263 of this Code and subsection (d) of section 40-269 of this Code.


Sec. 40-269. Food vendors—Additional conditions for permits.

A food vendor's permit shall be further subject to the following conditions and may be suspended or revoked for failure to comply with any one of them:

(a) The permittee shall maintain the unit in good repair and keep it free from defects that may present a hazard to life or property.

(b) The permittee shall make the unit available for inspection by the director or the health officer or their representatives at any time while the unit is in operation. No notice prior to such an inspection shall be required.

(c) The permittee shall thoroughly clean the unit and drain and flush the liquid waste tanks each day the unit is operated.




DIVISION 2. PERMIT


(d) A food vendor applicant shall provide a description of all foods to be sold and the proposed hours of operation.

(e) The permittee must comply with all other applicable state and city rules and regulations specifically including all food or health-related ordinances of the city and all state and federal food labelling news. The unit itself and the permittee must meet all applicable requirements for the operation of mobile food units and food establishments as set out in chapter 20 of the City Code at all times.

(f) In addition to the marking requirements of chapter 20 of the City Code, each unit shall be clearly marked with the name and phone number of the permittee and the phone number of the city's department of health and human services.

(g) The permittee shall serve, store, and display his food on or in the unit itself and shall not use, set up, or attach any crate, carton, rack, table, or other device to increase the selling or display capacity of his unit.

(h) The permittee shall not leave the unit unattended. If the unit is left unattended, it may be towed. The permittee shall then be liable for all reasonable towing and storage charges.

(i) The permittee shall not use the unit or allow anyone else to use the unit to sell, distribute, or give away any foods other than those stated in the application for the permit. The permittee is not authorized to and shall not sell any non-food items.

(j) The permittee shall keep the area within 25 feet of the unit clean and free of litter at all times. The litter receptacle on the unit shall be emptied regularly in other than a public receptacle. The litter receptacle shall be kept covered with a tight fitting lid when not in continuous use.

(k) The permittee shall not make any structural alteration of the unit without giving 30 days' advance written notice to the city.

(Ord. No. 91-1168, § 4, 8-14-91)

Sec. 40-270. Same—Unsafe or unhealthful conditions.

Notwithstanding the other provisions of this article, whenever the director or the health officer finds an unsanitary or other unhealthful or unsafe condition in the operation of a unit, he may issue a written notice to the permittee citing such condition, specifying the corrective action to be taken, and specifying the time period within which such action shall be taken; and, if deemed necessary, such order shall state that the permit is immediately suspended, and all food service operations are to be immediately discontinued. Any person to whom such an order is issued shall comply immediately therewith, but upon written petition to the director, shall be afforded a hearing within three business days after the issuance of that order.

(Ord. No. 91-1168, § 4, 8-14-91)

Sec. 40-271. Automatic suspension.

Suspension, revocation, or expiration of a permittee's food dealer's permit, mobile food service unit medallion, or required insurance coverage shall result in the automatic suspension of the permit granted hereunder without further action on the part of the city. Such suspension shall remain in effect until the permittee's food dealer's permit, mobile food service unit medallion, or insurance, as applicable are restored.

(Ord. No. 91-1168, § 4, 8-14-91)




DIVISION 2. PERMIT


Sec. 40-272. Issuance of regulations.

Consistent with the provisions of this Code, the director may issue regulations pertaining to the administration of this article, including but not limited to the submission of applications. A copy of such regulations shall be maintained on file for inspection at the office of the director. Copies of such regulations may be obtained upon payment of the copying fees prescribed by law.

(Ord. No. 91-1168, § 4, 8-14-91)


(a) Any notice required or permitted to be given by the director or any other city office, division, department, or other agency under this article to any applicant or permittee may be given either by personal delivery or by certified United States mail, postage prepaid, return receipt requested, addressed to the most recent address as specified in the application for the permit or permit renewal which has been received by the director, or any notice of address change which has been received by the director. Notices mailed as above shall be deemed given upon their deposit in the United States mail.

(b) Any notice required or permitted to be given to the director by any person under this article shall not be deemed given until and unless it is received in the office of the director at the time and in the manner provided for filing applications in section 40-263 of this Code.

(c) It shall be the duty of each applicant and permittee to furnish notice to the director in writing of any change of residence or mailing address.

(Ord. No. 91-1168, § 4, 8-14-91)




ARTICLE XII. MONITORING WELLS AND ENVIRONMENTAL TEST BORING FACILITIES




Sec. 40-282. Permit required; offense; penal and judicial remedies.

Sec. 40-283. Location on public street.

Sec. 40-284. Design standards, plans.

Sec. 40-285. Other permits.


Sec. 40-287. Transfer; assignment; termination.

Sec. 40-288. Street repairs; utilities.

Sec. 40-289. Maintenance; inspection.

Sec. 40-290. Notice before commencing work; site work; restoration.


Sec. 40-292. Indemnity.

Sec. 40-293. Insurance; bond.


Sec. 40-295. Issuance; review.

Sec. 40-296. Fees.

Sec. 40-297. Term.

Sec. 40-298. Revocation.

Sec. 40-299. Other appeals.




As used in this article, the following terms shall have the meanings ascribed to them in this section unless the context clearly indicates a different meaning:

Applicant means an applicant for a permit under this article.

Bond means a financial assurance mechanism in a form acceptable to the director, which may include, but is not limited to a letter of credit, a line of credit, pollution liability insurance or a bond executed by the permittee, as principal, with a corporate surety authorized to transact business in Texas.

Director means the director of the public works and engineering department or any person designated by the director to perform his responsibilities under this article.

Facility means any mechanical device or monitoring well and its associated apparatus, placed within a public street, and designed and constructed to measure or monitor the quality or movement





of foreign substances, elements, chemicals, fluids, or pollutants below the surface of the ground; or any mechanical device, method, or apparatus, placed in a public street and designed and constructed to obtain a sample soil core boring from a depth of greater than one foot below the surface of the ground, for the purpose of removing soil for environmental quality testing.

Parks official means the director of the parks and recreation department or any person designated by that director to perform his responsibilities under this article.

Permit means a current and valid permit issued pursuant to this article.

Permittee means a person who holds a permit issued pursuant to this article.

Public street means the entire width between the boundary lines of every way that is held by the city in fee or by easement or dedication when any part thereof has been accepted by the city, or has been opened to the use of the public for purposes of vehicular travel, and specifically shall include any designated state or federal highway or road or any designated county road that is under the administrative control of the city for maintenance, repair, or vehicular traffic control purposes.

Roadway means that portion of a public street which is improved, designed, or ordinarily used for vehicular travel, exclusive of the curb, berm, or shoulder. In the event that a public street includes two or more separate roadways, "roadway" means each such roadway separately.

Sidewalk means that portion of a public street which is between the curb lines, or the lateral lines of a roadway, and the adjacent property lines and is improved and designed for, or is ordinarily used for, pedestrian travel.

Utility means the city or any other person, whether franchised as a public utility or not, who is lawfully authorized to construct, install, or maintain any pipes for transportation of gas, liquids, or other materials, or any electrical distribution system, or any telephone or intelligence distribution systems, or any cable television transmission system, in, on, under, or over a public street.

(Ord. No. 90-1157, § 1, 8-14-91; Ord. No. 93-514, § 86, 5-5-93; Ord. No. 2012-522, § 2, 5-30-2012, eff. 7-1-2012)

Sec. 40-282. Permit required; offense; penal and judicial remedies.

(a) By authority of a permit issued by the director under the provisions of this article, a permittee may install and maintain a facility at a designated location upon a public street. A separate limit is required for each facility to be installed.

(b) It shall be unlawful for any person to install or maintain a facility unless a permit for the facility has been issued by the director.

(c) It shall be unlawful to fail to remove a facility within the time periods provided for in this article. The city may remove each noncomplying facility after the passage of ten days following the date of noncompliance and may institute a civil suit for damages, costs of removal and restoration, and attorney fees against the owner or the operator of the noncomplying facility. The existence of any penalty and costs levied against an owner or an operator of a facility shall serve as a bar to the future issuance, to the owner or the operator, of a permit provided by this article until all such penalties and costs are paid in full.

(d) Any person who violates any provision of this article shall be guilty of an offense and upon conviction, shall be punished by a fine of not less than $250.00 nor more than $2,000.00 for each violation. Each day in which any violation shall occur shall constitute a separate offense. Prosecution or conviction under this subsection shall not preclude any civil remedy or relief for a violation of this article.





(e) The city, acting through the city attorney or any other attorney representing the city, is hereby authorized to file an action in a court of competent jurisdiction to:

(1) Enjoin any person from violating or threatening to violate the terms, conditions and restrictions of any permit issued under this article;

(2) Enjoin the violation or threatened violation of the provisions of this article;

(3) Recover civil penalties for violation of the terms, conditions and restrictions of any permit issued under this article;

(4) Recover civil penalties for violation for the provisions of this article; or

(5) Recover damages from the owner of a parcel in an amount adequate for the city to undertake any construction or other activity necessary to bring about compliance with this chapter.

(f) The city, acting through the city attorney or any other attorney representing the city, is hereby authorized to enter into agreements in lieu of litigation to achieve compliance with the terms, conditions and restrictions of any permit issued under this article or the provisions of this article.

(Ord. No. 91-1157, § 1, 8-14-91; Ord. No. 2012-522, § 3, 5-30-2012, eff. 7-1-2012)

Sec. 40-283. Location on public street.

(a) Facilities shall be designed, constructed, and maintained in such a manner as to comply with the provisions of this section.

(b) A facility may not be located on, extend on to, nor intrude upon any portion of a roadway or a sidewalk unless the director determines that no reasonable alternative site exists. In any instance in which a facility must be situated on a sidewalk or roadway, it shall be installed entirely below the surface and covered in such a manner as to allow normal use of the roadway or sidewalk.

(c) A facility may not create any hazardous condition or obstruction of vehicular or pedestrian travel upon a public street.

(d) The design and location of a facility shall include all reasonable planning to minimize potential harm, injury, or interference to the public in the use of the public streets.

(e) Upon its removal a facility shall be properly closed by cementing or other sound engineering practice to prevent injuries to persons at the surface and underground contamination.

(Ord. No. 91-1157, § 1, 8-14-91)

Sec. 40-284. Design standards, plans.

(a) The director, the city engineer, the utility official, and the parks official may jointly approve and promulgate design, construction, and maintenance standards for facilities. Such standards shall be so drafted as to ensure that facilities do not impose a significant risk of personal injury or property damage.

(b) Consistent with this article and the standards promulgated under subsection (a), above, the officials named therein may adopt and promulgate standardized plans and specifications that permittees may utilize for facilities. Each applicant shall either adopt an approved plan or submit his own detailed plans prepared under the seal of a professional engineer registered as such in Texas with his application. Each set of plans shall show the design, dimension, and depth of the facility, the manner in which it will be placed, and the process that will be used for its removal and closure.





(c) The director, the city engineer, the utility official, and the parks official, or any one of them, may require the revision of any applicant's plans to conform to the standards promulgated or adopted in this article as a condition of granting a permit.

(Ord. No. 91-1157, § 1, 8-14-91)

Sec. 40-285. Other permits.

The granting of a permit shall neither excuse the permittee from obtaining nor obligate the city to grant any other permit or license that may be required by law for the installation or construction of the facility.

(Ord. No. 91-1157, § 1, 8-14-91)


It is the intent of the city council by the enactment of this article to regulate the surface and subsurface use and occupancy of public streets and rights of way by permittees and to establish a permitting mechanism and fee in accordance with the city's general power of control and regulation of public streets and highways as provided by law. However, this article shall not be construed as an assertion by the city of any property rights in derogation of abutting land owner's fee simple title and rights incident therein, in those cases where the city does not own fee simple title. It shall be the duty of permittees hereunder to notify all abutting landowners, whether title is held in fee or easement, of the permittee's receipt of the permit provided for in this article and to obtain any requisite permission to access said land.

(Ord. No. 91-1157, § 1, 8-14-91)

Sec. 40-287. Transfer; assignment; termination.

A permit shall apply only to the designated location specified. Permits shall be personal to the permittee and his agents and employees. No assignment by any permittee of any obligation assumed or right granted under this article shall be effective unless and until expressly consented to in writing by the director. A permittee may terminate a permit prior to its designated expiration date by giving 30 days' written notice to the city, removing the facility, and restoring the site as provided in this article. Termination shall not release or excuse the permittee or his insurers from any obligation which arose in any manner by virtue of the acceptance or enjoyment of the permit.

(Ord. No. 91-1157, § 1, 8-14-91; Ord. No. 2012-522, § 4, 5-30-2012, eff. 7-1-2012)

Sec. 40-288. Street repairs; utilities.

(a) The permittee shall upon five days' prior written notice from the city or any utility company and at the sole expense of the permittee, temporarily remove his facility for such period of time as may be reasonably specified in the notice to accomplish any street or utility installation, repairs, replacement, or expansion.

(b) In the event of any emergency condition in which the notice required in subsection (a) may not be given without creating an inconvenience to the public or in the event that the permittee fails to comply with a notice given pursuant to subsection (a), then the city or the utility company may remove the facility and close the bore site at the sole risk and expense of the permittee by utilizing whatever reasonable force or means are necessary therefor.





(c) Each permittee shall bear all costs associated with the relocation of lines and other improvements belonging to the city or any utility that may require relocation for the installation or maintenance of the permittee's facilities. The city or the utility, as applicable, may require a deposit for the estimated cost of the work prior to the commencement of the relocation work.

(Ord. No. 91-1157, § 1, 8-14-91)

Sec. 40-289. Maintenance; inspection.

(a) The permittee shall maintain his facility in a good and safe condition and repair at all times. The permittee shall assume all risk of loss or damage to the facility, and neither the city nor any other person shall have any obligation to replace or repair the same under any circumstances.

(b) The director, the city engineer, the health officer, the utility official, the parks official, or any other inspector designated by the city shall have the right to inspect any facility at any time without the necessity of prior notice. Upon at least one hour's notice given during regular hours (8:00 a.m. to 5:00 p.m., Monday through Friday, holidays excepted) the permittee shall open the facility and make a sample of the well contents available to the health officer.

(c) The director may notify the permittee in writing of any deficiency under this article in the physical condition of any facility and shall afford the permittee a reasonable period of time to correct the same. In determining the length of time to be allowed the director shall consider the danger, if any, which is posed by the deficiencies and the nature of the changes or repairs required. In the event that the director is of the opinion that the continued existence of the facility will constitute a significant threat to the safety of the public pending its repair, he may order it removed at once.

(Ord. No. 91-1157, § 1, 8-14-91)

Sec. 40-290. Notice before commencing work; site work; restoration.

(a) Permittee shall provide notice to the director no less than 48 hours before commencing work to install or remove a facility. At all times during the installation of any facility within the public street, the roadway(s) shall be kept open by the permittee for vehicular traffic in a reasonable manner, and no obstruction of the sidewalks shall be permitted so as to prevent the use thereof by pedestrians for an unreasonable period of time. Dirt and other material removed during the installation of the facility within the public street shall not be permitted to remain on the public street, and said dirt and other material from the site shall be removed at the risk, liability, and expense of the permittee. All excavations or obstructions of any kind which are permitted during the period of permittee's construction shall be properly barricaded and shall also be well illuminated during the night time.

(b) Upon the revocation or expiration of the permit, if not renewed, the permittee shall remove the facility, close the bore site, and restore the public street to its previous condition at his sole expense. Any facility which has not been removed by the tenth day next following the revocation or expiration of the permit shall be deemed abandoned, and it may be removed by the city without notice to the permittee. Removal of the facility by the city shall be at the sole expense of the permittee and shall be recorded as a charge against the permittee's restoration bond.

(Ord. No. 91-1157, § 1, 8-14-91; Ord. No. 2012-522, § 5, 5-30-2012, eff. 7-1-2012)






(a) Any notice required or permitted to be given to the city under this article may be given by e-mail or by certified United States Mail, return receipt requested, postage prepaid, addressed to the director at the then-current mailing address.

(b) Any notice required or permitted to be given to a permittee under this article may be given by e-mail, by certified United States Mail, return receipt requested, postage prepaid, addressed to the permittee at the mailing address designated in the permit application. A permittee may amend the mailing address specified in his application from time to time, upon written notice to the director given in the manner specified in this section.

(Ord. No. 91-1157, § 1, 8-14-91; Ord. No. 2012-522, § 6, 5-30-2012, eff. 7-1-2012)

Sec. 40-292. Indemnity.

By the acceptance of a permit the permittee, his assigns, successors, and representatives agree, obligate, and bind themselves to indemnify, defend and hold and save forever harmless the city, its officers, agents, and employees from all liability, costs, or damages arising in any manner on account of the installation, maintenance, or removal of the permittee's facility on the public streets.

(Ord. No. 91-1157, § 1, 8-14-91)

Sec. 40-293. Insurance; bond.

(a) Permittee shall maintain in effect certain insurance coverage and shall furnish certificates of insurance, in duplicate form, before beginning its performance under it permit. All policies except Professional Liability and Worker's Compensation must name the city as an additional insured. All liability policies must be issued by a company with a Certificate of Authority from the State Department of Insurance to conduct insurance business in Texas or a rating of at least B+ and a financial size of Class VI or better according to the current year's Best's Key Rating Guide, Property-Casualty United States. Permittee shall maintain the following insurance coverage in the following amounts:

(1) Commercial General Liability insurance including Contractual Liability insurance: $500,000 per occurrence; $10,000,000 aggregate;

(2) Worker's Compensation including Broad Form All States endorsement: Statutory amount;

(3) Professional Liability: $1,000,000 per claim; $1,000,000 aggregate; and

(4) Automobile Liability insurance: $1,000,000 combined single limit per occurrence.

Aggregate limits are per 12-month policy period unless otherwise indicated. All insurance policies must require on their face, or by endorsement, that the insurance carrier waives any rights of subrogation against the city. Permittee shall give 30 days written notice to the city before a policy may be canceled or non-renewed. Within the 30-day period, permittee shall provide other suitable policies in lieu of those about to be canceled or non-renewed so as to maintain in effect the required coverage. The director of the department of administration and regulatory affairs, or its successor department, may adjust the above liability limits as reasonably necessary.

(b) Each permittee shall furnish a bond in an amount determined by the director to be adequate to cover the cost of removal of his facilities, closure of the well bore, and restoration of the public street to its condition prior to the installation.





(c) The bond and evidence of insurance need not be furnished with the application; however, they shall be furnished to the director prior to the issuance of the permit. The proof of insurance shall include a covenant extending through the term of the permit that the insurer will provide the director ten days' prior written notice in the event of cancellation or nonrenewal thereof.

(Ord. No. 91-1157, § 1, 8-14-91; Ord. No. 2012-522, § 7, 5-30-2012, eff. 7-1-2012)


(a) Applications for permits shall be in the form prescribed by the director, who may provide for the filing and processing of applications by electronic means. Each application shall set forth and include the following:

(1) The name of the applicant. If the applicant is a corporation, partnership, or association, then the applicant shall provide evidence of its existence, of its authority to maintain the facility, and of the authority of the persons signing the application to act on behalf of the entity.

(2) The applicant's mailing address (and street address, if different), telephone number (including relevant mobile phone numbers), and e-mail address for any written notice required or permitted to be given under this article.

(3) An acknowledgment that the applicant is aware of the terms and provisions of this article and will, by acceptance of a permit, if approved, agree to be bound thereby and by all amendments adopted in all respects in the exercise of the rights granted under the permit.

(4) The name, home and business street addresses, and home, business and mobile telephone number of two persons who may be contacted by the city, any utility, or other person in the event of any emergency regarding the facility.

(5) The names, addresses, and telephone numbers of any agents who will perform any work for the permittee regarding the installation, monitoring, or removal of the facility.

(6) A copy of the driller's license issued by the State of Texas.

(7) The accurate location of the proposed facility, which shall include a description provided by the Global Position Satellite x, y coordinates for mapping by Geographic Information System and shall be depicted on a diagram prepared by a registered professional surveyor or engineer.

(8) Any other information specified pursuant to the terms of this article or reasonably required by the director to review and act upon the application.

(b) The application shall be sworn to be true and correct by the applicant and shall be submitted in any reasonable number of copies that the director may specify.

(c) A single application for permits for multiple facilities may be filed with the director provided that the physical location of each proposed facility logically arises out of, and reasonably pertains to, the scheme and plan of a single environmental testing project. The requirements of this article governing the issuance of a permit must be fulfilled for each facility.

(d) Applications for renewal permits shall be submitted in the same form and manner as original applications, provided that any information furnished in a prior application which has not changed may be adopted by reference.

(e) The director shall, from time to time, prepare and submit for approval by motion of the city council a schedule of fees that shall be paid by an applicant for a facility. Payment of any applicable fees when due is a condition of the processing of any application under this article, and no refund of the application fee shall be made. The director may waive the application fee but not other costs if the director finds that the applicant is the city, Harris County, the state or any of its departments,





employees, agents or contractors, or that payment of the application fee would result in a substantial financial hardship to the applicant.

(Ord. No. 91-1157, § 1, 8-14-91; Ord. No. 2012-522, § 8, 5-30-2012, eff. 7-1-2012)

Sec. 40-295. Issuance; review.

(a) The director shall forward copies of the application to the city engineer, the utility official, and the parks official for their review pursuant to subsections (b) and (c) prior to his acting on the application. Upon its approval under subsections (b) and (c) the director shall review and approve the application for the facility unless he finds:

(1) That the application or required information furnished therewith is incomplete;

(2) That any statement on the application or information furnished therewith is false in any material respect; or

(3) That the applicant's proposed facility does not comply in any manner with the requirements of this article and regulations adopted hereunder.

(b) Each application shall also be referred by the director to the utility official and the city engineer who shall review the proposed facility to determine whether its installation or maintenance will interfere with any existing or planned improvement of the city or any existing or planned improvement by a utility that is known by the city. The director, as a condition for approval of the permit, may require an applicant to furnish, from utilities that are not owned, operated, or maintained by the city, letters of release; or leases, licenses, or other instruments that have been duly recorded in the office of the county clerk where the facility is to be situated, evidencing the applicant's right to utilize the site. The city engineer may also refer copies of the application to utilities for comment or may require the applicant to do so. The city engineer and utility official shall approve the application unless they find that the proposed facility will interfere with existing or planned lines or improvements of the city or any utility. The approval of the application by the city engineer and utility official shall not be deemed to excuse any obligation of a permittee to pay relocation fees as provided in subsection 40-288(c) of this Code.

(c) Each application shall also be referred to the parks official who shall review the same to determine whether the facility would cause any significant damage to trees or landscaping. The parks official shall approve the application if he finds that all reasonable precautions have been taken to avoid permanent damage to trees and landscaping.

(d) The director may condition the approval upon any revisions that the director, the city engineer, the utility official, or the parks official determines to be necessary in the design of the proposed facility to meet the standards specified in this article. Additionally, the director shall condition the approval upon the furnishing of any requirement of this article which was not submitted with the application. The amount of the bond shall be specified by the director.

(e) If an application is not approved, the director shall notify the applicant thereof and of the reasons therefor in writing.

(Ord. No. 91-1157, § 1, 8-14-91; Ord. No. 2012-522, § 9, 5-30-2012, eff. 7-1-2012)

Sec. 40-296. Fees.

(a) The applicable nonrefundable fees stated for this provision in the city fee schedule are hereby imposed for permit applications and renewals thereof.





(b) All fees shall be tendered to the director with the application by certified or cashier's check on a bank that is authorized to transact business in the State of Texas.

(Ord. No. 91-1157, § 1, 8-14-91; ; Ord. No. 2011-1168, § 13, 12-14-2011; Ord. No. 2012-522, § 10, 5-30-2012, eff. 7-1-2012)

Sec. 40-297. Term.

The term of each permit, whether original or renewal, that is issued hereunder shall be one year from the date of its issuance.

(Ord. No. 91-1157, § 1, 8-14-91)

Sec. 40-298. Revocation.

(a) Any permit issued under this article may be revoked in accordance with the provisions of this section if it is found that:

(1) Any material statement made or information furnished with or in connection with the review of the application was false;

(2) Conditions have changed such that the use of the permittee's facility no longer meets all applicable requirements of this article or such that the permittee's use interferes with the public's use of the public streets or creates any hazardous condition thereon;

(3) The permittee has failed to comply with any provision of this article; or

(4) The facility has not been installed in compliance with the permit within 90 days after its issuance, unless an extension is granted for good cause by the director.

(b) Whenever the director receives reliable information that grounds for revocation of a permit exist, he shall investigate the facts. If he finds that there are grounds for revocation of a permit, he shall give a written notice to the permittee setting forth:

(1) The specific grounds upon which the permit in question may be revoked;

(2) That there will be a hearing before a hearing official designated by the director in which the city will seek the revocation of the permit;

(3) The date, time, and place of such hearing; and

(4) That the permittee may appear in person and be represented by an attorney.

(c) After completion of the presentation of evidence by all parties, the hearing official shall make written findings and render an order as to whether or not there are grounds for revocation of the permit. If there are such grounds, then he shall order the permit to be revoked.

(d) The decision of the hearing official shall be final.

(e) Notwithstanding the foregoing grounds and procedures, the director may revoke any permit in whole or in part upon ten days' notice to the permittee and without a hearing thereon if he determines that the facility should be removed or relocated to accommodate any widening, realignment, or extension of the public streets or other public improvements or utility improvements. The director may also revoke a permit for which the insurance or bond has been cancelled or has expired without renewal, without a hearing, after five days' written notice and failure of the permittee to replace the insurance or bond.





(f) The revocation of a permit under this section shall not release or excuse the permittee or his insurers or sureties from their duty to remove the facility or any other obligation which arose by virtue of the acceptance or enjoyment of the permit.

(Ord. No. 91-1157, § 1, 8-14-91)

Sec. 40-299. Other appeals.

Except as provided in subsection (e) of section 40-298, any decision of the director, the city engineer, the utility official, or the parks official under this article may be appealed, by a permittee or applicant, to a hearing official designated by the director upon written notice of appeal given to the director within ten days after the permittee receives notice of the decision complained of from the director. The hearing official shall conduct a hearing thereupon in the manner contemplated by the foregoing section for revocations.

(Ord. No. 91-1157, § 1, 8-14-91)


Editor's note—

Ord. No. 2012-522, § 11, adopted May 30, 2012, effective July 1, 2012, repealed § 40-300 in its entirety. Formerly said section pertained to existing facilities and derived from Ord. No. 91-1157, § 1, 8-14-91.




ARTICLE XIII. SPECIAL RACING EVENTS



Sec. 40-311. Nature of the events and definitions.


Sec. 40-313. Terms for conducting special racing events.



Sec. 40-311. Nature of the events and definitions.

The city council desires that there be an opportunity to hold special racing events in the city and to encourage and facilitate the promotion of such events upon such terms and conditions as the city council may approve by written agreement.

(Ord. No. 97-1055, § 2, 9-3-97)


As used in this article, the following words and terms shall have the meanings herein ascribed, unless the context of their use clearly indicates another meaning:

Promoter shall mean the person principally responsible for holding the special racing event and who is authorized to enter into a written agreement with the city regarding the conduct of the special racing event and setting forth the responsibilities of the parties.

Racecourse area shall mean the property within a perimeter to be defined by written agreement between the promoter and the city that contains the track or racecourse and the structures and facilities necessary for the conduct of the special racing event.

Sanctioning body shall mean a statewide, national or international organization that regularly engages in the governance, supervision or sanctioning of any form of auto racing.

Special racing event shall mean an auto race or races held within a consecutive period of time specified by written agreement between the promoter and the city and that is held under the auspices or with the approval of a sanctioning body.

(Ord. No. 97-1055, § 2, 9-3-97)

Sec. 40-313. Terms for conducting special racing events.

(a) Notwithstanding any ordinance, code, rule or regulation of the city to the contrary, a special racing event may occupy and utilize the racecourse area and any public property, facilities or structures therein for purposes of conducting the special racing event for a temporary period and under such terms and conditions as may be specified in one or more written agreements between the promoter and the city. Such terms and conditions may authorize, without limitation, charging of admission to race events, sale of food, beverages or merchandise, street improvements or alterations, temporary removal or alteration of structures within the racecourse area, temporary construction of fences, viewing stands, signage, concession structures, storage or maintenance structures or any other structure, service or facility reasonably necessary to promote and conduct the special racing event.





This subsection shall not be construed to prohibit the inclusion in such an agreement of interested parties other than the promoter and the city or to prohibit other agreements between any parties relating to the special racing event, provided that no provision of any such agreement shall conflict with any provision of this article.

(b) Any structure or facility for storing or dispensing fuel or other potentially dangerous materials, any temporary electrical service equipment or facility utilized in the special racing event and/or any temporary structures such as viewing stands, booths, decks, barriers, towers or poles shall be subject to inspection and approval by both the building official and the fire marshal or their authorized inspectors but otherwise shall not be subject to the city's ordinances, codes, rules or regulations.

(c) Upon written permission of the traffic engineer, a portion of the street and sidewalk rights-of-way may be temporarily obstructed for a period not to exceed 60 consecutive days preceding the special racing event and for no more than 15 days after the special racing event. The approval shall be limited to rights-of-way within the racecourse area or rights-of-way adjacent to the racecourse area whose partial temporary obstruction is required for safety or traffic reasons and shall be limited to the minimum period and the minimum portion of right-of-way necessary to reasonably accommodate setting up, conducting and dismantling the special racing event and its facilities, and shall be given only to the extent that the traffic engineer determines that the proposal will not pose an undue hazard to vehicles and pedestrian travel by the public.

(d) Upon written permission of the traffic engineer, street and sidewalk rights-of-way may be temporarily closed for a period not to exceed five consecutive days preceding the special racing event and for a reasonable period during and after the special racing event, provided, that the total period involving street closure shall not exceed 15 consecutive days. The approval shall be limited to rights-of-way within the racecourse area or rights-of-way adjacent to the racecourse area whose temporary closure is required for safety or traffic reasons and shall be limited to the minimum period and the minimum portion of right-of-way necessary to reasonably accommodate setting up, conducting and dismantling the special racing event and its facilities, and shall be given only to the extent that the traffic engineer determines that the proposal will not pose an undue hazard to vehicles and pedestrian travel by the public.

(Ord. No. 97-1055, § 2, 9-3-97)


Editor's note—

Ord. No. 2011-391, § 2, adopted June 1, 2011, effective July 1, 2011, repealed § 40-314 in its entirety. Formerly said section pertained to City parking facilities and derived from Ord. No. 97-1055, § 2, 9-3-97.




ARTICLE XIV. GRANT OF PRIVILEGES TO TELECOMMUNICATIONS PROVIDERS TO PLACE



ARTICLE XIV. GRANT OF PRIVILEGES TO TELECOMMUNICATIONS PROVIDERS TO

PLACE TELECOMMUNICATIONS FACILITIES ACROSS, ALONG OR UNDER PUBLIC

WAYS



Sec. 40-333. Rights to be granted by franchise.

Sec. 40-334. Network facilities required to be authorized.

Sec. 40-335. Network facilities franchise fees.

Sec. 40-336. Conditions of network facilities franchise.

Sec. 40-337. Penalty for unauthorized use of the public way.

Secs. 40-338, 40-339. Reserved.


As used in this article, the following words and terms shall have the meanings provided below, unless the context of their usage clearly indicates another meaning:

Cable service shall have the meaning defined for such term in the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended.

City engineer means the city engineer for the city or a designee thereof.

CPI-U means the Consumer Price Index for All Urban Consumers (U.S. City Average, all items).

Director means the director of the city's department of administration and regulatory affairs, or its successor department, including the director's designee.

Director of public works and engineering means the director of the city's public works and engineering department, or its successor department, including the director's designee.

Fee means the fees payable to the city by a telecommunications provider subject to this article.

Network facilities means conduits, ducts, manholes, vaults, tanks, towers, wave guides, optic fiber, microwave, dishes, and any associated converters, electrical lines, communications lines, transmission lines, cables, wires, amplifiers, switches, utility equipment, or other such object, device or facilities, including attachments and encasements containing such facilities, whether underground or overhead that are designed, installed and constructed within the public way for the purpose of producing, receiving, amplifying, switching, transmitting or distributing audio, video, or other forms of electronic or optical signals to or from customers, subscribers or locations within the city limits of the city. Network facilities do not include such facilities to the extent that they are solely used to provide services under Chapter 283 of the Texas Local Government Code or services under Chapter 66 of the Utilities Code or respective successor laws.

Network facilities franchise means an ordinance adopted pursuant to this article granting a telecommunications provider authority to use the public way as provided therein.

Payment date means January 1 of each year during the term of a network facilities franchise.






Public way means any public street right-of-way located in the city, including the entire area between the boundary lines of every right-of-way (including but not limited to roads, streets, alleys, highways, boulevards, bridges, tunnels or similar thoroughfares, and public utility easements), whether acquired by purchase, grant or dedication and acceptance by the city or by the public, that has been opened to the use of the public for purposes of vehicular travel; and shall include any designated state or federal highway or road or any designated county road under the administrative control of the city for maintenance, repair, or vehicular traffic control purposes.

Services means telecommunication services provided through network facilities located wholly or partially in the public way without regard to technology. This definition does not include services provided under Chapter 283 of the Texas Local Government Code or under Chapter 66 of the Texas Utilities Code or any respective successor law.

Private or commercial purposes means any purposes, other than public purposes.

Telecommunications provider means a person who offers or provides services through network facilities located wholly or partially in the public way.

(Ord. No. 98-593, § 1, 7-22-98; Ord. No. 08-52, § 74, 1-16-08, eff. 1-26-08; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)


(a) It shall be the policy of the city to grant to any person the right to lay, construct, operate, lease or make any use whatsoever of any network facility for private or commercial purposes, across, along, over, above or under any public way within the city in accordance with this article. Except as otherwise specifically provided, this article shall be administered by the director.

(b) It is not the policy or intention of this article to prohibit, regulate, license or franchise the provision of any services within the city, and no provision of this article shall be so construed. Any terms or conditions contained in this article or any network facilities franchise relate to the right of a person to make use of the public way, not in limitation of any rights granted by the Public Utility Commission of Texas, the Federal Communications Commission, or respective successor agency.

(Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Sec. 40-333. Rights to be granted by franchise.

As provided by sections 17 and 18 of article II of the City Charter, the rights to be granted under this article shall only be granted by a network facilities franchise in the manner, with the formalities, and subject to all of the applicable terms and conditions stated in those sections of the Charter.

(Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Sec. 40-334. Network facilities required to be authorized.

(a) It shall be unlawful for any telecommunications provider to lay, construct, operate, offer for lease or make available for any use whatsoever any network facilities across, along, over, above, or under any public way within the limits of the city for any private or commercial purpose unless the right to do so has been granted to the telecommunications provider by a network facilities franchise in accordance with this article.






(b) A telecommunications provider desiring a network facilities franchise shall make written application upon a form promulgated by the director on which shall be set forth a detailed description of existing or proposed network facilities, including the proposed number of linear feet and location thereof, the nature of the business or use to be transacted in the public way and such other information as may be required by the director, under the charter or any other city ordinance, sufficient to enable the director to determine the advisability of granting a network facilities franchise and to establish the applicant's capacity to meet its financial or other obligations thereunder.

(c) A network facilities franchise shall authorize the specific use that the telecommunications provider shall be permitted to make of the public way. No facility shall be located, operated or used in any public way in a manner not expressly stated in the network facilities franchise. No network facilities franchise shall be construed to grant access to city land owned in fee simple, other than the public way, unless specifically included therein. No telecommunications provider shall make any use of a public way or allow any other person to make use of its network facilities located in a public way, unless stated in the network facilities franchise. A telecommunications provider shall not permit any other person to locate, operate or use the provider's network facilities in the public way without proof that the person holds authorization for the contemplated location, operation, or use under any required network facilities franchise duly granted pursuant to this section by the city and that the person holds a permit for the construction issued in accordance with this article. Notwithstanding the foregoing, a network facilities franchise is not required for any person engaging solely in resale of a telecommunications provider's services or the provision of service by unbundled network elements obtained from a telecommunications provider, provided that the applicable network facilities franchise covers the network facilities involved and the person does not own or operate any network facilities in the public way.

(d) This article shall not apply to any telecommunications provider already specifically franchised by the city on the effective date of this ordinance; provided that upon the termination of such franchise, the telecommunications provider shall be subject to this article. Nothing in this article shall be construed to diminish the right or authority of the city to require any other user of the public way to secure appropriate city authorization for such use.

(Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Sec. 40-335. Network facilities franchise fees.

(a) The fee to be paid by a telecommunications provider subject to this article under any network facilities franchise shall be determined in accordance with applicable law in a competitively neutral manner by the director and set forth in a network facilities franchise approved by city council.

(b) With each annual fee remittance, a telecommunications provider shall file a report with the city secretary and the director on a form promulgated by the director showing in detail the calculation of the fee for the preceding calendar year. An officer or authorized representative of the telecommunications provider shall certify that the information contained in the report is true and correct (to the best of the officer's or representative's knowledge and belief) after due inquiry. The report shall be treated as confidential information to the extent permitted by law. Upon written request by the director, a telecommunications provider shall verify the information contained in its report, and upon 30 days advance written notice, all non-customer specific records and other documents required for verification shall be subject to inspection by the director, expressly excluding any records, documents, or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. Sec. 2701, et seq. Upon receipt of any such request, the telecommunications provider shall promptly designate or identify the specific information proposed to be withheld and the law supporting or authorizing its non-disclosure.






(c) Payment due date. Each telecommunications provider shall remit fees on an annual basis. Payment shall be made on or before the payment date. Fees that are not received by the city by the payment date shall incur interest beginning on the date the payment is due at the rate of twelve percent per annum, compounded daily.

(d) Circumvention of fee prohibited. A telecommunications provider shall not underpay fees due to the city, circumvent payment of the fee for use of the public way or evade payment of fees by barter, transfer of rights, or any other means that results in undercounting of the telecommunications providers' linear feet of network facilities in the public way within the city.

(e) Leased network facilities.

(1) A telecommunications provider may lease its network facilities or otherwise make its network facilities available, in whole or in part, to its customers in the ordinary provision of services, if the telecommunications provider retains the responsibility for servicing and repairing the network facilities. This shall not be construed to provide any person, other than an affiliate, with authority to place any facilities in the public way without a valid franchise granted by the city, if one is required. The director shall determine whether a franchise is required in accordance with applicable law, and such determination shall be made as if the third party were the owner of the network facilities used by the third party, rather than the telecommunications provider. A telecommunications provider shall notify the city within 30 days of any lease of its network facilities.

(2) A telecommunications provider's acceptance of a network facilities franchise constitutes its agreement to notify its customers or subscribers making sales of telecommunications services through the use of its network facilities of the possible need for a certificate from the Public Utility Commission of Texas, an FCC license, other state or federal authorization, or city franchise. A telecommunications provider shall notify its existing customers or subscribers of the requirement of this provision within 30 days of the acquisition of each customer or subscriber.

(f) Fees paid pursuant to this section shall constitute the sole compensation to the city for a telecommunications provider's use of the public way.

(Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Sec. 40-336. Conditions of network facilities franchise.

A network facilities franchise that is granted to any telecommunications provider under this article shall incorporate the terms of this article and be further subject to the following specific provisions, whether or not such terms are specifically included in such network facilities franchise:

(1) Enforcement. The city attorney, or the city attorney's designee, shall have the right to enforce all legal rights and obligations under the network facilities franchise without further authorization. The telecommunications provider shall provide the city access to all documents and records the city attorney deems reasonably necessary to assist in determining the telecommunications provider's compliance with the network facilities franchise.

(2) Interference with public use prohibited. The obligation and duty of a telecommunications provider to lay, construct, operate, lease, maintain, repair and replace the network facilities shall not interfere with the public use of the public way. Insofar as it is practical to do so, the telecommunications provider shall use existing network facilities in the provision of the services. The telecommunications provider shall provide and maintain current any information reasonably related to location or operation of the network facilities or services determined to be necessary






by the city engineer or the director. The telecommunications provider shall maintain the network facilities in good order and condition, subject to ordinary wear and tear.

(3) Permit fees included in fee. A portion of the fee due to the city under a network facilities franchise constitutes payment to the city for the cost of permits and inspections, or other similar approvals or submissions that a telecommunications provider is required to obtain for its work in the public way under a network facilities franchise. As a result, no additional fees shall be charged to the telecommunications provider. This subsection shall not be construed to waive any requirement relating to permitting, inspections or similar approvals or submissions other than the payment of separate fees.

(4) Permitting and plan approval.

a. New construction permit. Before commencing any work in the public way other than routine maintenance or emergency work (as described in subsections b. and c. below), a telecommunications provider shall apply for and obtain a new construction permit. The application shall include a written work description, including scale drawings with plan and profile, showing the network facilities' location (or proposed location) and estimated depth of the network facilities (existing and proposed) in the immediate area of the proposed new construction. Such drawings and specifications shall be prepared, executed and sealed by a registered professional engineer, as may be required by the Texas Engineering Practice Act or by the city engineer. Such drawings and specifications will be reviewed by the city engineer and any comments will be provided to the telecommunications provider as soon as practicable. The telecommunications provider shall make any changes to the drawings and specifications requested by the city engineer.

b. Routine maintenance. The director of public works and engineering may promulgate rules and procedures for routine maintenance of existing network facilities located in the public way, including but not limited to required notices by the telecommunications provider that the telecommunications provider shall provide, standards for street and curb repairs, and inspection of facilities and street repairs necessitated by such maintenance. Routine maintenance or repair performed on existing network facilities located in the public way shall be performed in a manner consistent with city standards promulgated by the director of public works and engineering.

c. Emergency repairs. Emergency repairs requiring immediate work may be performed by the telecommunications provider and notice shall be given in writing to the director of public works and engineering within 24 hours following the commencement of such repairs. The notice shall state the nature of the emergency, the repairs required and an estimate of the time necessary to complete the repairs. The telecommunications provider shall apply for all required approvals, including those required under article XVII of this chapter as soon as reasonably practicable. Any work performed that is not consistent with city standards shall be corrected upon notice from the director of public works and engineering.

d. Payment of fees required. The city is not required to grant any permit or approval to the telecommunications provider unless and until all fees due and payable pursuant to the network facilities franchise have been paid in full.

e. Other licenses and fees. The telecommunications provider shall obtain and pay the cost of all licenses, permits, and certificates required by any statute, ordinance, rule or regulation of any state or federal regulatory body having jurisdiction over the conduct of its operations hereunder. The telecommunications provider shall give notice to the director of any revocation or failure to obtain any such license, permit or certificate affecting its performance hereunder within 15 days of such revocation or of the day upon which the






telecommunications provider received actual or constructive notice of its failure to obtain such license, permit or certificate.

f. City engineer's procedures. Notwithstanding the above, the city engineer may promulgate procedures, applicable to all similarly situated telecommunications providers, regarding pre-approval of work in the public way by a telecommunications provider in circumstances that do not require detailed review of the proposed work.

(5) Work standards. All work in the public way shall be performed in accordance with the city's Standard Construction Specifications and Standard Construction Details, as such may be amended from time to time, and shall be subject to the regulation, control and direction of the director of public works and engineering. All work done in connection with the laying, construction, operation, maintenance, repair and replacement of the network facilities shall be in compliance with all applicable laws, ordinances, rules and regulations of city, the applicable county, the state, and the United States.

(6) Work in the public way. Any work that constitutes an obstruction of a street for which a permit is required under section 40-362 of this Code shall only be performed in accordance with a permit issued under article XVII of this chapter.

(7) Restoration. A telecommunications provider shall repair, clean up and restore the public way disturbed or affected during the maintenance, construction, repair, replacement or removal of the network facilities in accordance with article V of this chapter.

(8) Relocation or removal. A telecommunications provider may be required to relocate its network facilities in any public way in accordance with article XVIII of this chapter.

(9) Subsequent rules and regulations. The city council or the director of public works and engineering may make such other reasonable rules and regulations for the placement and manner of the network facilities as they may deem appropriate for the protection of the public and the public way and to avoid unreasonable interference with other uses or contemplated uses of the public way. Without limitation of the above, the city council may amend the rules or regulations to require that all network facilities constructed after the effective date of such amended rules be placed underground.

(10) Inspections. The city engineer may perform inspections, upon 24 hour written notice from the city, of any network facilities located in the public way from time to time as deemed appropriate. A telecommunications provider may have a representative present during such inspection.

(11) Abandonment of obsolete network facilities. Upon request by the city engineer, a telecommunications provider shall remove aerial facilities and/or facilities in conduits when such facilities are obsolete and no longer in service. When a telecommunications provider removes or abandons permanent structures in the public way, the telecommunications provider shall notify the city engineer in writing of such removal or abandonment and shall file with the city engineer the location and description of each facility removed or abandoned. The city engineer may additionally direct remedial measures as the city engineer may determine necessary for the public safety and the integrity of the public way.

(12) Bonding. The telecommunications provider shall comply with all applicable requirements relating to the provision of bonds or other security to the city in connection with its work in the public way.

(13) Tree trimming. A telecommunications provider, its contractors and agents may trim trees that are upon and overhanging the public way and public places of the city so as to prevent the branches of such trees from coming in contact with the telecommunications provider's fiber or






cables. At the option of the city, said trimming shall be done under the supervision and direction of the city or of any city official to whom said duties have been or may be delegated.

(14) Indemnification and insurance. The network facilities franchise shall contain indemnity and insurance provisions in a form acceptable to the city attorney.

(15) Default and termination; valuation. A network facilities franchise shall contain provisions relating to default and termination. For purposes of compliance with article II, section 17 of the charter of the city, unless the network facilities franchise provides otherwise, there shall be no requirement that the network facilities be purchased by the city upon termination of a network facilities franchise.

(16) Other terms and conditions. The network facilities franchise may contain such other terms and conditions as the director and the city attorney may prescribe and city council may approve that are not inconsistent with the terms of this article.

(Ord. No. 98-593, § 1, 7-22-98; Ord. No. 02-974, § 8, 10-30-02; Ord. No. 04-498, § 6, 5-26-04; Ord. No. 08-52, § 75, 1-16-08, eff. 1-26-08; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Sec. 40-337. Penalty for unauthorized use of the public way.

It shall be unlawful to make use of the public ways in violation of the terms of this article. Without limitation of other remedies available to the city, persons making use of the public way in violation of this article, or otherwise without valid consent of the city, shall be liable for all fees authorized by this article dating back to the inception of such use.

(Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Secs. 40-338, 40-339. Reserved.



ARTICLE XV. ALLEYS


ARTICLE XV. ALLEYS


DIVISION 2. - PUBLIC USE ALLEYS

DIVISION 3. - MINIMUM STANDARDS; PERMIT

DIVISION 4. - USE OF ALLEYS FOR PRIVATE ACCESS







Sec. 40-340. Scope of article; application; definitions.

Sec. 40-341. Purpose, interpretation; type of alley covered; determination.

Sec. 40-340. Scope of article; application; definitions.

(a) This article shall govern the improvement and use of the types of alleys, as defined herein, whether such improvement or use shall be for public use or pursuant to private rights of access.

(b) The provisions of this article shall apply only to alleys, as herein defined, but shall not apply to alleys platted, dedicated, and/or constructed subsequent to September 19, 1982, or dedicated and/or improved in conformity with Chapter 42 of this Code.

(c) The following words, terms and phrases used in this article shall have the meanings ascribed to them in this section, unless the context clearly indicates otherwise:

Alley shall mean the entire width between property lines forming any public right-of-way and which is designed primarily for secondary access to abutting properties having their primary access from an adjacent street or an approved or compensating open space or courtyard which has direct access to a public street.

Applicant shall mean a person who owns real property abutting an alley and seeks to improve such alley for motorized vehicular traffic use either by the public or pursuant to private rights of access.

Improve or improvement shall mean the filling, grading, raising, paving, re-paving, surfacing or other work done to change or alter the surface of, or drainage for, any alley, including any work, or the application of any material of whatever type, in, upon or to the surface or subsurface of an alley for the purpose of rendering such alley accessible by or usable for motorized vehicular purposes.

Paving shall mean the construction of any improvements to, or upon, any alley, including drainage or other similar work and the preparation and construction of both the subsurface and ultimate wearing or top surface of any alley, pursuant to the minimum standards set forth in section 40-343 of this Code.

Private rights of access shall mean those private rights of ingress and egress recognized by Texas law as being appurtenant to the purchase of real property by reference to a map or plat showing streets or alleys abutting such real property.

Public use shall mean a use or right of use available to the public in general, as distinguished from a particular individual or group of individuals. Public use alleys shall refer to alleys available for vehicular use and travel by the general public.

(Ord. No. 99-379, § 3, 4-21-99)

Sec. 40-341. Purpose, interpretation; type of alley covered; determination.

(a) The purpose of this article is to prescribe:

(1) Rules and regulations governing the improvement of certain alleys in the city; and

(2) Minimum standards and criteria for the improvement, including paving, of alleys that are to be improved and maintained for motorized vehicular or pedestrian use by the public.






(b) The terms and provisions of this article shall be interpreted and applied as minimum requirements adopted for the protection of the public health, safety and welfare and shall be applied to the alleys covered hereby, unless specifically provided otherwise herein.

(c) The department of public works and engineering will determine whether an alley has been dedicated to and accepted for use by the city, based upon its records, and to the extent necessary, the records of other city departments and applicable county records.

(Ord. No. 99-379, § 3, 4-21-99)




DIVISION 2. PUBLIC USE ALLEYS



Sec. 40-342. Initiating improvement of alley for public use; criteria.

Sec. 40-342.1. Acceptance of existing alleys for public use.

Sec. 40-342.2. Inventory of alleys.

Sec. 40-342. Initiating improvement of alley for public use; criteria.

(a) Procedure. The improvement of an alley for public use may be initiated by:

(1) Any person(s) owning real property abutting an alley who agree(s) to obtain the permit required by section 40-344 of this Code and comply with all requirements applicable to such alley, as provided in this article, including payment of all costs of improving such alley for public use; or

(2) The filing of a petition with the city engineer, signed by at least 75 percent of the property owners abutting such alley, wherein such abutting owners agree to pay their share of the costs to improve such alley through the city's usual paving assessment procedures.

(b) Determination by city engineer. No alley shall be improved or maintained for public use unless the city engineer authorizes the issuance of an appropriate permit after determining that:

(1) The improvement of such alley for public use will serve a bona fide public purpose and need;

(2) The traffic entering upon or exiting from such alley to an adjacent public street will not result in a significant impediment to existing traffic flow or constitute a traffic hazard;

(3) The condition or location of underground or above-ground utilities:

(i) will not be damaged or otherwise adversely affected by the opening of such alley; or;

(ii) if existing utilities would be adversely affected, the applicant agrees to relocate such utilities, at applicant's sole cost and expense;

(4) The condition and location of underground or above-ground utilities are such that it is unlikely that any paving or other surface improvements to be constructed or installed in such alley will be disturbed to replace, repair or upgrade such utilities within the succeeding five years; and

(5) Any applicant seeking a permit to improve such alley for public use has demonstrated the financial ability to fully comply with the requirements of this article, including, without limitation, the improvement of the alley to the standards prescribed in section 40-343 of this Code, if applicable.

(c) Minimum requirements. The following requirements shall apply in connection with the improvement for public use of any alley:

(1) A minimum right-of-way width of ten feet shall be available within such alley;

(2) Alleys with a right-of-way width of 20 feet or less shall be restricted to one-way traffic and shall connect two public streets;

(3) The junction of the alley and any connecting public street shall be at right angles, except as otherwise approved by the city engineer;






(4) The alley shall be constructed and improved in accordance with the standards, specifications and requirements set forth in section 40-343 of this Code;

(5) Minimum paving widths shall be 12 feet for alleys with a right-of-way width of 15 feet or more and eight feet for alleys with a right-of-way width of less than 15 feet; and

(6) An applicant must obtain the permit and post the bond (or cash deposit) required by this article.

(Ord. No. 99-379, § 3, 4-21-99)

Sec. 40-342.1. Acceptance of existing alleys for public use.

(a) Purpose. The purpose of this division is to provide a procedure alternative to provisions of section 40-342 of this Code whereby the owners of property abutting an alley ("applicants") may petition the city to accept the alley for public purposes.

(b) Scope. This section does not apply to:

(1) Service drives or other routes that serve the principal purpose of providing access for a single property;

(2) Public streets; or

(3) Any alley that has been duly accepted by the city by any other method.

(c) No abridgement or limitation on deed restrictions. With respect to private individuals and entities, this section and/or the city's decision to accept and maintain an alley hereunder does not abridge or limit any current or future deed restrictions that apply to such alley or any easement or right-of-way adjacent to the alley.

(d) Petition—Form. The applicants seeking city acceptance of an alley for public use shall submit to the city engineer a petition in the form promulgated therefor by the director of public works and engineering or his designee, who may revise the petition form from time to time as he deems appropriate.

(e) Petition—Number of applicants. For the city engineer to consider such a petition, the minimum number of applicants required to sign the petition shall be as follows:

(1) If the alley was dedicated to public use by a recorded plat or instrument, 51% of all persons owning property abutting the alley, on a block-by-block basis, between two streets; or

(2) If the alley was not dedicated to the public by a recorded plat or separately recorded instrument, 100% of all persons owning property abutting the alley on a block-by-block basis, between two streets.

(f) Petition—Required accompaniments. Along with the signed petition, the applicants must provide the following:

(1) Copies of recorded instruments vesting title in all property owners abutting the alley;

(2) If there are any city-owned signs or markers in the alley, photographs of such signs or markers;

(3) If any fence, structure or other item of private property (other than property owned by private utilities) encroaches into the alley, the written agreement of the owner of such structure or property to move same, as required by subsection (i) of this section;

(4) A list of city services to be provided in the alley that the applicants are requesting, if any;

(5) Any other proof of ownership as deemed necessary by the city engineer; and






(6) Upon request by the city engineer, a boundary and a topographic survey by a surveyor licensed to practice in the State of Texas showing improvements, easements, rights-of way, drainage, utilities, water lines, sanitary sewers, storm sewers, ditches, culverts, encroachments, and extent and type of pavement surface.

(g) Standards. In order to be accepted by the city, an alley must meet the standards set forth in the Infrastructure Design Manual, as promulgated and revised from time to time by the public works and engineering department, unless the city engineer determines that it is necessary or appropriate to alter or waive one or more standards with respect to a particular alley, if in the public interest to provide public access.

(h) Acceptance. The city is not obligated to accept any alley. The determination of whether the city will accept an alley shall be made by the city engineer, whose decision shall be final. When an application is denied, no subsequent application for acceptance of the same alley shall be eligible for consideration for at least one year, unless this limitation is waived by the city engineer for good cause.

(i) Removal of encroachments. The owner of any fence, structure or other item of private property (other than property owned by private utilities) that encroaches into the alley shall remove same within 30 days following acceptance of the alley by the city.

(Ord. No. 08-167, § 2, 2-27-08)

Sec. 40-342.2. Inventory of alleys.

The department of public works and engineering shall make reasonable efforts to maintain an inventory of alleys within the city, to determine whether such alleys are accepted for public use or are for private access, and to maintain such inventory in a form that is accessible to the public. A copy of the inventory shall be maintained on file in the office of the city engineer.

(Ord. No. 08-167, § 2, 2-27-08)




DIVISION 3. MINIMUM STANDARDS; PERMIT


DIVISION 3. MINIMUM STANDARDS; PERMIT

Sec. 40-343. Paving standards.

Sec. 40-344. Permit required.

Sec. 40-345. Bond; cash deposit.

Sec. 40-343. Paving standards.

Alleys to be improved and maintained for public use shall be paved to the minimum standards and specifications, including the types of materials allowed, set forth in Public Works Drawing No. 7879-A.

(Ord. No. 99-379, § 3, 4-21-99)

Sec. 40-344. Permit required.

It shall be unlawful for any person to do, or cause to be done, any work to improve an alley for public use without a permit having been issued to such person as provided in section 40-55 et seq. of this Code.

(Ord. No. 99-379, § 3, 4-21-99)

Sec. 40-345. Bond; cash deposit.

No work to improve an alley for public use shall be commenced until the bond required by section 40-59, or a cash deposit in lieu of such bond, as authorized by section 40-60 of this Code, has been filed or deposited with the city engineer.

(Ord. No. 99-379, § 3, 4-21-99)




DIVISION 4. USE OF ALLEYS FOR PRIVATE ACCESS


DIVISION 4. USE OF ALLEYS FOR PRIVATE ACCESS

Sec. 40-346. Use of alley.


Sec. 40-346. Use of alley.

(a) Use. Any alley not improved or maintained for public use may be improved and used pursuant to private rights of access held by the owners of abutting lots or property, under the terms and conditions provided by this section.

(b) Application. Any abutting property owner may apply to the city engineer for permission to improve and use an alley for private access from a public street to such applicant's property.

(c) Requirements. An applicant seeking the private use of an alley must:

(1) Be the fee simple owner of land abutting the alley;

(2) Obtain a permit pursuant to section 40-86 of this Code to connect such alley to any public street;

(3) Prepare and construct the surface of the alley so as to prevent the drainage of storm or surface water or runoff onto adjacent property;

(4) Assure drainage of stormwater and other runoff along the alley and into the intersecting street or drainage facilities; and

(5) If an applicant elects to post signs in connection with the private use of an alley, which election may be made in the applicant's sole discretion, such signs must be of a size, color and with wording and printing that is approved by the city engineer, must be posted at both sides of the street entrance to the alley as required by chapter 41 of this Code, and such signs must state that the alley is being used for private access and is not maintained by the city.

(d) Materials. Alleys to be used for private rights of access may be improved, constructed and/or surfaced with shell, gravel, asphalt, concrete or other materials, at the option of the applicant.

(e) Non-liability of city. With respect to any alley used or to be used for private rights of access, the city shall have no liability for:

(1) Maintenance of the alley;

(2) Patrolling the alley; or

(3) Drainage of stormwater or other surface runoff from such alley onto abutting properties.

(f) No bond required. The provisions of sections 40-59 and 40-60 of this Code shall not be applicable in the instance of any public alley improved or used pursuant to private rights of access.

(Ord. No. 99-379, § 3, 4-21-99)




ARTICLE XVI. SITTING AND LYING UPON PUBLIC SIDEWALKS




Sec. 40-352. Sitting and lying down on sidewalks.

Sec. 40-353. Creation of designated areas.



As used in this article, the following words, terms, and phrases shall have the meanings ascribed to them in this section, unless the context of their use clearly indicates another meaning:

Central Business District means the area beginning at the intersection of the centerline of U.S. 59 and the centerline of I.H. 45; thence in a northwesterly and northerly direction along the centerline of I.H. 45 to its intersection with the centerline of I.H. 10; thence in an easterly direction along the centerline of I.H. 10 to its intersection with the centerline of U.S. 59; thence in a southwesterly direction along the centerline of U.S. 59 to its intersection with I.H. 45, the point of beginning.

Designated area means the following areas finally approved and designated by the city council under section 40-353 of this Code:

(1) The Central Business District.

(2) Midtown Area: The area described in Exhibit A to Ordinance No. 2004-825, a copy of which is on file in the office of the city secretary.

(3) Old Sixth Ward Area: The area described in Exhibit A to Ordinance No. 2006-922, a copy of which is on file in the office of the city secretary.

(4) Avondale Area: The area described in Exhibit A to Ordinance No. 2006-923, a copy of which is on file in the office of the city secretary.

(5) Greater Hyde Park Area: The area described in Exhibit A to Ordinance No. 2006-924, a copy of which is on file in the office of the city secretary.

(6) East Downtown Management District Area: The area described in Exhibit A to Ordinance No. 2011-696, a copy of which is on file in the office of the city secretary.

Sidewalk means that portion of the public street that is between the curblines, or the lateral lines of a roadway, and the adjacent property lines and is improved and designed for or is ordinarily used for pedestrian travel.

(Ord. No. 02-504, § 4, 6-12-02; Ord. No. 04-825, § 4, 8-3-04; Ord. No. 06-922, § 4, 9-6-06; Ord. No. 06-923, § 4, 9-6-06; Ord. No. 06-924, § 4, 9-6-06; Ord. No. 2011-696, §§ 3, 4, 8-10-2011)

Sec. 40-352. Sitting and lying down on sidewalks.

(a) It shall be unlawful for any person to sit or lie down on a sidewalk or on a blanket, stool, or any other object placed upon a sidewalk between the hours of 7:00 a.m. and 11:00 p.m. in a designated area.





(b) It shall be unlawful for any person to place or deposit any item of bedding materials or personal possessions, including but not limited to any blanket, bag, package, or container of personal possessions on a sidewalk between the hours of 7:00 a.m. and 11:00 p.m. in a designated area.

(c) It is an affirmative defense to any prosecution under subsection (a) or (b) of this section that the person is:

(1) Sitting or lying down on a sidewalk because of a medical emergency;

(2) As the result of a disability, utilizing a wheelchair, walker, or similar device to move about the sidewalk;

(3) Operating or patronizing a commercial establishment or service or governmental function conducted on the sidewalk pursuant to a permit or authorization issued under this Code or under the laws of this state;

(4) Participating in or attending a parade, festival, performance, rally, demonstration, meeting, or similar event lawfully conducted on the public street or a sidewalk;

(5) Sitting on a chair or bench located on the sidewalk that is supplied by a governmental agency or the abutting private property owner; or

(6) Sitting or has placed materials on a sidewalk while waiting for public or private transportation or waiting for access to enter any building.

(d) Prior to taking any action to enforce the provisions of this article, any law enforcement officer observing a violation of this article shall first notify the person engaged in the prohibited conduct that he or she is in violation of this article. It is an affirmative defense to a prosecution under this article that any person so notified promptly ceased, within a time reasonable under the circumstances, to engage in the prohibited conduct following such notification.

(Ord. No. 02-504, § 4, 6-12-02)

Sec. 40-353. Creation of designated areas.

(a) This section shall govern the creation of a designated area within the city other than the central business district.

(b) Residents of the city may petition the city council to designate any area within the city as a designated area under this article.

(c) Any such petition must meet the following requirements to be considered by the city council:

(1) Describe the proposed area by street boundaries;

(2) Contain the signatures of property owners whose property represents 20 percent of the total area to be designated;

(3) Contain the signatures of at least 100 citizens residing within the proposed area, each of whom was above the age of 18 years old when signing the petition;

(4) Indicate that the signatures thereon were collected within a 60-calendar-day period; and

(5) Indicate that the signatories thereon desire the area to be designated as an area subject to this article.

(d) Any such petition must be submitted to the city secretary within 90 calendar days of the date of the first signature thereon.





(e) Following the filing of any such petition with the city secretary, the city council shall, within 45 days of the date of filing, conduct a public hearing to consider the merits of the petition.

(f) The city secretary shall give notice as to the filing of any such petition and the date, time,and place of the city council hearing by posting same at least 14 days in advance of such hearing at a place convenient to the public at the City Hall. Any interested person shall have the opportunity to participate in any hearing conducted under the provisions of this section and to present any relevant evidence and testimony.

(g) The chief of police shall be requested to cause the proposed area to be investigated with regard to the existence of conduct in the proposed area that would be violative of this article if the proposed area were to be designated, along with any incidents of criminal misconduct in the proposed area, and to report the results of such investigation to the city council at or prior to the public hearing.

(h) Following such hearing and upon review of the report of the chief of police, the city council shall establish the designated area as requested if it determines that:

(1) The petition complies with the requirements of this section;

(2) The proposed area exhibits the kinds of conduct and adverse impact on use of the sidewalks and adverse impact on adjacent properties that this article was intended to address; and

(3) Designation of the proposed area would best serve the health, safety, and welfare of the public.

(i) This section shall not be construed to limit the authority of city council consistent with the provisions of this section to designate other areas without a public petition; provided, that the city council receives evidence, substantiated by the police department, that a particular area within the city exhibits a significant incidence of the kinds of conduct addressed by this article and makes the findings required under subsection (h)(2) and (h)(3) of this section.

(Ord. No. 02-504, § 4, 6-12-02)




ARTICLE XVII. SIDEWALK AND ROADWAY OBSTRUCTIONS AND IMPAIRMENTS


ARTICLE XVII. SIDEWALK AND ROADWAY OBSTRUCTIONS AND IMPAIRMENTS [8]

DIVISION 1. - GENERAL

DIVISION 2. - PERMITS

FOOTNOTE(S):

--- (8) ---

Editor's note— Ord. No. 04-498, § 2, adopted May 26, 2004, amended Ch. 40, Art. XVII, in its entirety. Formerly said article pertained to pedestrian way and impairment and derived from Ord. No. 02-974, § 2, adopted 10-30-02. (Back)




DIVISION 1. GENERAL


DIVISION 1. GENERAL


Sec. 40-361.1. General powers and duties of mobility official.

Sec. 40-361.2. Mobility inspectors.

Sec. 40-362. Impairments and obstructions unlawful.

Sec. 40-363. Inactivity during permit period; revocation.


Sec. 40-365. Construction work in roadways or sidewalks; public work.

Sec. 40-366. Regulations.


Sec. 40-368. Hearing.

Secs. 40-369, 40-370. Reserved.


As used in this article, the following words and terms shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicates another meaning:

Central business district or CBD means the area beginning at the intersection of the centerline of U.S. 59 and the centerline of I.H. 45; thence in a northwesterly and northerly direction along the centerline of I.H. 45 to its intersection with the centerline of I.H. 10; thence in an easterly direction along the centerline of I.H. 10 to its intersection with the centerline of U.S. 59; thence in a southwesterly direction along the centerline of U.S. 59 to its intersection with I.H. 45, the point of beginning.

Crosswalk means an area upon a roadway that has been designated by the traffic engineer with striping and/or signage as a place for pedestrians to cross the street. The term includes both crosswalks that have been designated at street intersections and those that have been designated between intersections.

Emergency means an unforeseen occurrence that creates a condition of substantial hazard or threat of damage or injury to life or property.

General permit means a permit issued for intermittent short-term (less than 24 hours) obstructions undertaken by utilities or public employees. An obstruction may not occur at the same location for more than seven consecutive days.

Impairment includes an excavation or removal of a sidewalk or portion thereof or an obstruction of a sidewalk or portion thereof.

Local street means a street that is not a major thoroughfare or major collector street.

Major collector street has the meaning ascribed in section 1-2 of this Code.

Major thoroughfare has the meaning ascribed in section 1-2 of this Code.




DIVISION 1. GENERAL


Mobility official means the public works and engineering director or his designee.

Mobility inspector means an employee of the department designated by the mobility official to enforce the provisions of this article.

Obstruction means any construction or excavation related vehicle, equipment, fence, structure, bulk waste container, building or construction materials or debris, barricade, cone, sign, barrel, or other thing or object that is placed, planted, left or erected in or upon a roadway or sidewalk that would in any manner prevent or restrict public use of or access to any part of the roadway or sidewalk or restrict the drainage system of the roadway or sidewalk.

Peak traffic hours. This term is limited in its application to pedestrian and vehicular traffic on sidewalks and roadways on major collector streets and major thoroughfares and in the central business district and means the following hours on Mondays through Fridays, excepting holidays other than Veterans' Day that are observed by the closure of city offices: 6:00 a.m. to 9:00 a.m. and 4:00 p.m. to 7:00 p.m.

Permit means a current and valid permit issued under division 2 of this article.

Public employee means an employee of the state or a political subdivision of the state; the term also includes employees of contractors of the state and its political subdivisions when retained to perform public infrastructure maintenance contract functions, such as water and sewer line point repairs, pothole repairs, traffic signal maintenance and other functions that relate to the ongoing repair, public right of way enhancements including lane line striping, preservation, and cleaning of existing public facilities.

Roadway means the portion of a street that is paved or otherwise improved, designed, or ordinarily used for vehicular travel and/or for on-street parking. In the event a street includes two or more separate roadways, the term "roadway" shall refer to any such roadway. The term does not include any roadway that is primarily maintained by the Texas Department of Transportation or by any political subdivision other than the city.

Sidewalk means the portion of a street that is between the curblines or lateral lines of the roadway and the adjacent property lines and is improved for or ordinarily used for pedestrian travel. Where a street has two sidewalks, the term shall apply separately to each.

Street means the entire width between the boundary lines of every way that is publicly maintained, including sidewalks and crosswalks, provided that the term does not include any street that is primarily maintained by the Texas Department of Transportation or by any political subdivision other than the city.

Traffic-control device has the meaning ascribed in section 40-121 of this Code.

Utility means a public utility operating under a franchise from the city or a certificated telecommunications provider operating pursuant to Chapter 283 of the Texas Local Government Code.

Vehicle includes a vehicle whether motorized or not and/or a vehicle trailer.

(Ord. No. 04-498, § 2, 5-26-04; Ord. No. 09-1267, §§ 2, 3, 12-9-09, eff. 1-1-10)

Sec. 40-361.1. General powers and duties of mobility official.

It shall be the duty of the mobility official to direct, control, and manage all impairments and obstructions of roadways and sidewalks, including the enforcement of all regulations set forth in this article concerning impairments and obstructions of roadways and sidewalks. The mobility official shall




DIVISION 1. GENERAL


also maintain a system to issue and track permits issued under this article. The mobility official is authorized to designate the necessary persons as mobility inspectors to enforce the provisions of this article.

(Ord. No. 09-1267, § 4, 12-9-09, eff. 1-1-10)

Sec. 40-361.2. Mobility inspectors.

(a) Mobility inspectors designated by the mobility official shall enforce the provisions of this article by issuance of citations on an official form prescribed by the mobility official for such notices. Mobility inspectors shall not have the power of arrest under the authority conferred by this section. Mobility inspectors shall be issued appropriate identification by the mobility official and shall be issued the necessary forms to carry out their duties. Mobility inspectors shall account to the mobility official for all citations issued and for all citation forms provided to them.

(b) Peace officers shall enforce the provisions of this chapter and applicable state laws and regulations relating to obstructing or impairing roadways and sidewalks by issuance of citations.

(Ord. No. 09-1267, § 4, 12-9-09, eff. 1-1-10)

Sec. 40-362. Impairments and obstructions unlawful.

(a) It shall be unlawful for any person to place, cause, or allow any impairment or obstruction of a sidewalk or roadway, except as authorized by a permit.

(b) It is a defense to prosecution under this section that the impairment or obstruction is or consists of:

(1) A vehicle that is lawfully standing, stopped, or parked in compliance with applicable provisions of this Code and state traffic laws.

(2) A vehicle that has been rendered inoperable by a mechanical or other systems failure or by an accident and is stopped pending police investigation and/or towing or recovery services.

(3) A public transit facility, traffic control device, sign, street light, public trash receptacle, bicycle rack, or other structure or object lawfully placed by or on behalf of the state or a political subdivision of the state.

(4) A sign or display that is being utilized as part of a lawfully conducted demonstration or rally provided that the object does not obstruct or impair vehicular or pedestrian traffic and further provided that it is used and displayed only during the period of time that the demonstration or rally is attended and ongoing and the attendees remove the sign or display at the conclusion of the demonstration or rally.

(5) Equipment and materials related to work actively being performed by a utility or public employee that has obtained a general permit.

(6) Trees, grass, shrubbery, and landscaping that is placed and maintained in a manner conforming to applicable requirements of chapters 32 and 45 of this Code and regulations issued thereunder.

(7) A parade lawfully conducted under chapter 45 of this Code.

(8) A sidewalk café authorized under section 40-10.1 of this Code, street function authorized under section 40-27 of this Code, or newsrack placed as authorized under article XX of chapter 40 of this Code.




DIVISION 1. GENERAL


(9) A valet zone as authorized under section 26-445 of this Code.

(10) Equipment and materials relating to public infrastructure maintenance work performed, outside of the general permit requirements, by public employees, provided that the work is performed in accordance with a time, place, and manner protocol approved by the traffic engineer.

(11) Solid waste containers and heavy trash items of the type and size authorized for residential service of the nature provided by the city and city contractors under chapter 39 of this Code that are placed for collection in a manner that does not obstruct the roadway or impair pedestrian use of the sidewalk; however, this defense does not extend to bulk containers of the "dumpster" or "roll-off" type that are typically used to service multifamily residential properties, commercial properties, and construction sites.

(12) Poles, distribution boxes, and related structures of utilities, provided that they are not placed in such a manner as to obstruct or impair vehicular or pedestrian use of the roadway or sidewalk.

(13) Postal deposit and delivery boxes, provided that they are not placed in such a manner as to obstruct or impair vehicular or pedestrian use of the roadway or sidewalk.

(14) A building encroachment or other permanent obstruction for which the abutting owner has a current and valid permit or other authorization as obtained from city council.

(15) Equipment relating to a sidewalk activity as authorized under article XI of this chapter.

(16) An emergency as defined in section 40-376 of this Code.

(c) Under the authority granted in section 40-366 of this Code, the mobility official may issue rules and regulations regarding the application of the defenses set forth in subsection (b), above. It is a required element of any defense asserted under subsection (b) that the actor is in compliance with any applicable rules and regulations.

(Ord. No. 04-498, § 2, 5-26-04; Ord. No. 07-225, § 6, 2-14-07; Ord. No. 01-1111, § 4, 10-3-07; Ord. No. 09-1267, §§ 5, 6, 12-9-09, eff. 1-1-10)

Sec. 40-363. Inactivity during permit period; revocation.

(a) As a condition of a permit, it is the responsibility of the permit holder to diligently prosecute the work for which the permit was obtained; without limitation of the foregoing, the permit holder shall ensure that there is no period of 15 consecutive days or more during which the work site is inactive.

(b) The foregoing inactivity prohibition is inapplicable to:

(1) A delay that arises from causes beyond control and without fault or negligence of the permit holder. Examples of these causes are:

a. Acts of God or of the public enemy.

b. Acts of government in its sovereign capacity.

c. Fires, floods, or unusually severe weather.

d. Epidemics or quarantine restrictions.

e. Strikes or freight embargoes.

f. Discovery of pollutants at the site which requires cessation of activity pursuant to a federal, state, or local law.




DIVISION 1. GENERAL


(2) A delay caused by an order to temporarily cease work issued by the traffic engineer or chief of police.

(Ord. No. 04-498, § 2, 5-26-04)


(a) The provisions of this article are cumulative of all other applicable laws and ordinances. Compliance with this article shall not excuse compliance with any other requirement of laws or ordinances or the obtaining of any other license, permit, franchise, or other required authorization.

(b) Without limiting the foregoing, a separate permit is also required under article V of this chapter whenever the obstruction is for purposes of an excavation and the provisions of that article are applicable to the work. The director of public works and engineering shall coordinate the two permit processes.

(c) To the extent that any provision set forth in this article may not be imposed upon any person because its imposition would be inconsistent with a controlling state or federal law, then this article shall be construed and applied in a manner that conforms to the state or federal law.

(Ord. No. 04-498, § 2, 5-26-04)

Sec. 40-365. Construction work in roadways or sidewalks; public work.

(a) With the exception of work addressed in sections 40-362(b)(5) or (b)(10) of this Code above, utilities, contractors of the city and other political subdivisions of the state who are performing construction, reconstruction, or repair work in the roadways or sidewalks or work that otherwise causes an impairment or obstruction shall be required to obtain a permit. Except as provided in section 40-373, nothing in this article shall be construed to authorize the imposition of restraints upon the contractor's work that are inconsistent with traffic control plans or other documents upon which the contracts for the work were bid or let, provided that the documents were reviewed and approved under subsection (b), below. However, the traffic engineer shall not be obliged to issue a permit hereunder for work to be performed at times not authorized in the contract documents or for the occupancy of areas of any roadway or sidewalk that are not expressly authorized to be occupied for the performance of the work under the contract documents.

(b) Traffic control plans and other bid/contract related documents proposed for public works by the city or other political subdivisions that are for construction projects in a roadway or sidewalk or that will otherwise cause any impairment or obstruction of a roadway or sidewalk shall be submitted to the traffic engineer for review and approval by the public entity contracting for the work before bids are taken, or if the work is not let on bids, before the contract is negotiated.

(c) The defense set forth in section 40-362(b)(10) of this Code is not intended to excuse public employees from coordinating their work with the traffic engineer to ensure that impairments or obstructions conform to applicable requirements of this article, and the director of public works and engineering shall administratively adopt regulations for that purpose.

(d) Notwithstanding any provisions under this article to the contrary, the traffic engineer may issue a permit to a city department necessary to perform departmental functions without requiring a permit fee, release and indemnity provisions or evidence of insurance. The traffic engineer may adopt specific rules and regulations regarding time. Place and manner with regard to such city department permits, as deemed appropriate to ensure that traffic and mobility are not adversely affected.




DIVISION 1. GENERAL


(e) Notwithstanding any provisions under this article to the contrary, the deployment and use of all traffic-control devices shall conform to the specifications set forth in the Texas Manual on Uniform Traffic Control Devices.

(Ord. No. 04-498, § 2, 5-26-04; Ord. No. 09-1237, § 7, 12-9-09, eff. 1-1-10)

Sec. 40-366. Regulations.

The director of public works and engineering is authorized to adopt rules and regulations for the administration of this article. To the extent practicable, as determined by the traffic engineer, the rules and regulations may provide for the filing and processing of permit documents by electronic means.

(Ord. No. 04-498, § 2, 5-26-04)


(a) It is a criminal offense for any person to violate any of the provisions of this article. Every person convicted of violating any of the provisions of this article for which another penalty is not specifically provided shall be punished by a fine of not less than $200.00 nor more than $500.00; provided however that no penalty shall be greater or less than the penalty for the same offense under the laws of this state.

(b) For violations under this chapter that are of a continuing nature, each day that the violation continues shall constitute a separate offense.

(Ord. No. 04-498, § 2, 5-26-04; Ord. No. 09-1237, § 8, 12-9-09, eff. 1-1-10)

Sec. 40-368. Hearing.

Any person who is aggrieved by a decision of the city, its officials, or employees with respect to a permit application or impairment or obstruction abatement action under this article shall, upon written request, be entitled to a hearing to be conducted by hearing officer designated by the director of public works and engineering, who shall promulgate rules for hearings. The decision of the hearing officer shall be final. A hearing requested under section 40-126 of this Code may be consolidated with a hearing requested under this section.

(Ord. No. 04-498, § 2, 5-26-04; Ord. No. 09-1237, § 8, 12-9-09, eff. 1-1-10)

Secs. 40-369, 40-370. Reserved.




DIVISION 2. PERMITS


DIVISION 2. PERMITS

Sec. 40-371. Administration and schedule of permit fees.


Sec. 40-373. Review, issuance, terms, revocation.

Sec. 40-374. Permits for suspension of metered parking.


Sec. 40-376. Emergencies.

Sec. 40-377. Posting at impairment or obstruction site.

Sec. 40-378. Abatement.


Sec. 40-371. Administration and schedule of permit fees.

The traffic engineer shall issue and administer permits. The schedule of fees established pursuant to this section shall be applicable initially to the permits authorized to be issued pursuant to this article. The director of public works and engineering shall determine annually in connection with the city's fiscal year whether an increase or decrease in these fees is required for the sidewalk and roadway obstructions and impairments permit program, based on an analysis of the actual costs of administering and enforcing this program, and is hereby authorized to make adjustments annually to the schedule of fees. If the fee is increased, it may be increased only by the documented additional cost to administer and enforce this program. The traffic engineer shall not issue any permit unless and until the applicable fee has been paid, unless the applicant is exempt from paying a fee under city contract, including the "Adopt a Container" program, franchise agreement, or federal, state or local statutes or other applicable laws. Weekly fees shall not be prorated for obstructions lasting less than a full week. Persons who desire to obtain permits shall be charged a fee under the following conditions:

(1) For an impairment or obstruction of a roadway or sidewalk, the permit holder shall pay, on a weekly basis only, the applicable fee as shown in the city fee schedule. Fees are based upon single lane closures of up to one week in duration. Multiple lane closure fees are assessed separately. Each hundred block or portion thereof (for instance the 100 block, the 200 block, etc.) constitutes a full hundred-block closure.

(2) Work areas include transition areas, activity areas, and termination areas as defined in the latest edition of Texas Manual of Uniform Traffic Control Devices.

(3) A utility or public employee may apply for a general permit. A general permit may be used for all street obstructions except as defined below (or defined as an emergency):

a. Obstructions may not be performed during peak traffic hours in the CBD and other high vehicle occupancy and transit corridors;

b. Obstructions may not reduce lane usage to less than two driving lanes in the CBD during off peak traffic hours;




DIVISION 2. PERMITS


c. Outside the CBD during off peak hours, obstructions may not reduce lane usage to less than one lane in each direction on roadways with four or more lanes, and not less than one lane on two-lane roadways;

d. Obstructions may not occur in conflict with special events or parades;

e. Sidewalk impairments in the CBD may not be performed under a general permit.

(4) Any fees or revenues generated by roadway obstruction or sidewalk impairments covered under this article shall be distributed as follows:

a. 85 percent of all fees and revenues shall be allocated to the transportation special revenue fund administered by the public works and engineering department;

b. 15 percent of all fees and revenues shall be allocated to the police special services fund administered by the police department.

(Ord. No. 04-498, § 2, 5-26-04; Ord. No. 09-1237, §§ 9, 10, 12-9-09, eff. 1-1-10; Ord. No. 2011-1168, § 13, 12-14-2011)


Persons who desire to obtain permits shall make application to the traffic engineer at least ten business days before the date on which the permit is required, unless the traffic engineer approves a shorter time, setting forth the following:

(1) The applicant's name, business street address and mailing address if different, and business telephone number. If the proposed impairment or obstruction involves efforts of two or more persons, such as a utility and a contractor or an abutting property owner and a contractor, then they shall join as coapplicants, and the required information shall be provided for each.

(2) The name and 24-hour telephone number of a person or persons whom the traffic engineer may contact if needed to resolve any issues that may arise with respect to the permit.

(3) The purpose for which the permit is requested.

(4) If the permit relates to construction or demolition work on abutting property, then the building permit number.

(5) If the permit is for an activity for which any other city permit is also required, then the permit number or evidence that the application therefor has been filed.

(6) If the permit is for street construction work, the name and description of the project, or if the city is the contracting agency, then the contract or job number.

(7) The duration, dates, and times of day of the proposed impairment or obstruction.

(8) A description of the proposed impairment or obstruction, including its size, material, and the location upon the roadway or sidewalk where it will be placed.

(9) The reasons why the work, function, or activity proposed requires an impairment or obstruction of a roadway or sidewalk and cannot otherwise reasonably be accomplished.

(10) A statement that if the permit is issued, the applicant as a permit holder accepts and obligates itself to the following release and indemnification provisions:

"RELEASE




DIVISION 2. PERMITS


PERMIT HOLDER AGREES TO AND SHALL RELEASE THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY THE "CITY") FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THE PERMIT, EVEN IF THE INJURY, DEATH, DAMAGE, OR LOSS IS CAUSED BY THE CITY'S ACTUAL OR ALLEGED JOINT OR CONCURRENT NEGLIGENCE AND/OR THE CITY'S STRICT PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY.

INDEMNIFICATION

PERMIT HOLDER AGREES TO AND SHALL DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY THE "CITY") HARMLESS FOR ALL CLAIMS, CAUSES OF ACTION, LIABILITIES, FINES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS, AND ALL OTHER DEFENSE COSTS AND INTEREST) FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS PERMIT, INCLUDING, WITHOUT LIMITATION, THOSE CAUSED BY:

(i) PERMIT HOLDER'S AND/OR ITS AGENTS', EMPLOYEES', OFFICERS', DIRECTORS', PRINCIPALS', OR SUBCONTRACTORS OF PERMIT HOLDERS' (COLLECTIVELY IN NUMBERED PARAGRAPHS (i)—(iii), "PERMIT HOLDER") ACTUAL OR ALLEGED NEGLIGENCE OR INTENTIONAL ACTS OR OMISSIONS;

(ii) THE CITY'S AND PERMIT HOLDER'S ACTUAL OR ALLEGED CONCURRENT NEGLIGENCE, WHETHER PERMIT HOLDER IS IMMUNE FROM LIABILITY OR NOT; AND

(iii) THE CITY'S AND PERMIT HOLDER'S ACTUAL OR ALLEGED STRICT PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY, WHETHER PERMIT HOLDER IS IMMUNE FROM LIABILITY OR NOT.

PERMIT HOLDER SHALL DEFEND, INDEMNIFY, AND HOLD THE CITY HARMLESS DURING THE TERM OF THE PERMIT AND FOR FOUR YEARS AFTER THE PERMIT TERMINATES.

WHERE APPLICABLE, THE PROVISIONS OF SECTION 283.057 OF THE TEXAS LOCAL GOVERNMENT CODE SHALL CONTROL IN LIEU OF THE FOREGOING; ADDITIONALLY, TO THE EXTENT THAT THE APPLICANT HOLDS A CURRENT AND VALID UTILITY FRANCHISE FROM THE CITY, THE RELEASE AND INDEMNIFICATION PROVISIONS OF THE FRANCHISE SHALL CONTROL IN LIEU OF THE FOREGOING."

(11) If the roadway obstruction or sidewalk impairment is proposed during peak traffic hours on streets within the central business district, or on major thoroughfares or major collector streets, the reason why the activity cannot reasonably be performed at an other time.

(12) A detailed current traffic control plan for the impairment or obstruction, if required by the traffic engineer.

(13) If proposed during other than peak hours, standard operating procedures that will be used to remove impairments or obstructions during peak hours.

(14) A schedule of activities, if the work will occur for more than 14 days.




DIVISION 2. PERMITS


(15) Any other information required to determine compliance with the requirements of this article.

(Ord. No. 04-498, § 2, 5-26-04)

Sec. 40-373. Review, issuance, terms, revocation.

(a) All applications submitted pursuant to the provisions of this article shall be reviewed on a first-come, first-served basis. The traffic engineer shall, subject to the provisions of this article, approve an application as submitted or modified subject to subsection (b) below and issue a permit, unless he determines that:

(1) The application is incomplete or materially untruthful;

(2) The proposed impairment or obstruction relates to work or an activity that can reasonably be accomplished by alternative methods that, even if they might be more costly, would not require impairment or obstruction of the roadways or sidewalks; or

(3) Based upon the scope and nature of the proposed impairment or obstruction and the anticipated vehicular or pedestrian traffic upon the roadway or sidewalk at the times requested, that the impairment or obstruction would substantially inconvenience the public in its use of the roadways or sidewalks and that the inconvenience would outweigh any public benefits from the work, function, or activity for which the impairment or obstruction is proposed.

(b) The traffic engineer may impose reasonable limitations upon the time and manner in which a impairment or obstruction will be authorized, which shall be consistent with the nature and time of the impairment or obstruction and its anticipated effects upon vehicular and pedestrian use of the roadways or sidewalks. Without limiting the foregoing, the traffic engineer shall not authorize an impairment or obstruction during peak traffic hours if a practicable alternative time schedule could be used, unless he determines that traffic and mobility will not be adversely affected. Consistent with the foregoing criteria, the traffic engineer may require the permit holder to provide vehicular and pedestrian traffic control devices, alternative pedestrian walkways (covered or open), signage, and traffic control personnel at the permit holder's expense. The permit holder shall furnish any required traffic control personnel, such as flaggers or peace officers, in accordance with directives of the chief of police and at the permit holder's expense. To the extent that another person has previously requested or obtained a permit for all or part of the area subject to the application or the traffic engineer is aware of any other activity that will also affect traffic at the time and in the area affected by the application, the traffic engineer may require the persons to coordinate their impairments or obstructions or may delay the effective date of the permit until a previous impairment or obstruction or activity will have been concluded.

(c) Each permit shall be issued in writing, shall set forth the location, beginning and ending dates, authorized days of the week and times of day, nature and authorized site of the authorized impairment or obstruction, and any requirements for traffic control devices, signage, or personnel. The permit shall not be valid for any impairment or obstruction except in strict accordance with its terms and shall be void if used in any other time, place, or manner.

(d) Permits are personal to the permit holder and may not be assigned or used by any other persons.

(e) Upon written notice to the holder, a permit may be withdrawn, suspended, or revoked if the director of public works and engineering or the traffic engineer determines that it was issued by error, that the impairment or obstruction is having unanticipated adverse effects upon vehicular or pedestrian traffic, or that the holder has not complied with any applicable term of the permit.

(Ord. No. 04-498, § 2, 5-26-04; Ord. No. 09-1237, § 11, 12-9-09, eff. 1-1-10)




DIVISION 2. PERMITS


Sec. 40-374. Permits for suspension of metered parking.

A person who wishes to suspend the operation of metered parking must obtain a separate permit to do so pursuant to Division 2 of Article III of Chapter 26 of this Code.

(Ord. No. 04-498, § 2, 5-26-04; Ord. No. 09-2, § 20, 1-7-09)


(a) As a condition of the issuance of a permit, the applicant shall provide evidence that the applicant holds a current policy of comprehensive general liability insurance covering the impairment or obstruction, with an endorsement for any liability assumed under this article and policy limits of not less than $100,000.00 for property damage, per occurrence, and of not less than $250,000.00, per person, and $500,000.00, per occurrence, for bodily injury or death. Each policy shall include a provision designating the city as an additional insured with respect to activities under the permit and shall also include a provision obligating the insurer to furnish to the traffic engineer at least 15 days prior written notice of any cancellation.

(b) The failure of the permit holder to continuously maintain any required coverage shall cause any permit covered thereby to become void. No work may be performed on any excavation at any time when any required proof of insurance coverage is not on file in the traffic engineer's office.

(c) For joint applications and permits, the coverage required in this section may be provided by a policy jointly covering all of the applicants or by separate proofs of coverage for each applicant or permit holder.

(d) To the extent that any other city permit, license, or authorization is required for the impairment or obstruction, and insurance coverage is also required as a condition thereof, then the permit holder shall not be required to duplicate coverage and may provide one policy that meets all applicable requirements.

(Ord. No. 04-498, § 2, 5-26-04)

Sec. 40-376. Emergencies.

(a) The traffic engineer shall establish a means by which obstructions of an emergency nature may be commenced without obtaining a street obstruction permit unless work continues longer than 24 hours, at which time a full application shall be filed. Permit fees are waived for the duration of the emergency obstruction. The application shall include an explanation of the nature of the emergency, a description of the proposed impairment or obstruction, the duration, dates, and times of day of the proposed impairment or obstruction, and the name and emergency contact telephone number for the requestor.

(b) In addition to the defenses provided in section 40-362(b) of this Code, it is an affirmative defense to prosecution under section 40-362(a) that the impairment or obstruction was reasonably required to address an emergency. This affirmative defense shall only apply pending the timely submission of a permit application and shall not be valid if the application is denied.

(Ord. No. 04-498, § 2, 5-26-04)




DIVISION 2. PERMITS


Sec. 40-377. Posting at impairment or obstruction site.

(a) The permit holder shall post a copy of the permit at each impairment or obstruction site in accordance with the regulations issued under section 40-365 of this Code.

(b) In any prosecution under section 40-362 of this Code, it shall be presumed that no permit existed unless the permit is posted as required under subsection (a) of this section.

(Ord. No. 04-498, § 2, 5-26-04)

Sec. 40-378. Abatement.

Impairments or obstructions that are created without a permit or that are created in a time, place, or means that is inconsistent with a permit shall be subject to summary abatement upon order of or by the traffic engineer, mobility inspector, or any peace officer of the city. If the person causing the impairment or obstruction is present at the site, the traffic engineer, mobility inspector, or peace officer may, consistent with the nature of the impairment or obstruction and ambient traffic conditions, afford an opportunity to remove the impairment or obstruction. Otherwise, the impairment or obstruction shall be removed by city forces or contractors. Any costs of removing the impairment or obstruction shall be assessed to the person who caused it, if known, and, no additional permits shall be issued to that person until the city has been reimbursed for the costs. To the extent that an impairment or obstruction has an identifiable owner and an apparent value of $100.00 or more, the obstruction, unless of a perishable nature, shall be placed in storage for a period of 30 days, and the owner shall be notified and afforded an opportunity to have the return of the item, subject to payment of any removal and storage costs.

(Ord. No. 04-498, § 2, 5-26-04; Ord. No. 09-1237, § 12, 12-9-09, eff. 1-1-10)




ARTICLE XVIII. RELOCATION OF PRIVATELY-OWNED FACILITIES




Sec. 40-392. Registry of facilities and owners.

Sec. 40-393. Relocation required.

Sec. 40-394. Notice of annual adopted capital improvement plan.

Sec. 40-395. City engineer's preliminary notice.

Sec. 40-396. City engineer's final determination and notice.

Sec. 40-397. Relocation authorized; other legal action.

Sec. 40-398. Notice after relocation.

Sec. 40-399. Hearing upon written request.

Sec. 40-400. Conflicts.

Sec. 40-401. Actions authorized to enforce article.



As used in this article, the following terms shall have the meanings ascribed in this section, unless the context of their usage clearly indicates another meaning:

Director means the director of the public works and engineering department or his designee.

Facility means any structure, device or other thing whatsoever that is installed or maintained in, on, within, under, over or above a public right-of-way within the city.

Public right-of-way means any public street right-of-way located in the city, including the entire area between the boundary lines of every right-of-way (including but not limited to roads, streets, alleys, highways, boulevards, bridges, tunnels, or similar thoroughfares).

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 or replace a facility.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-392. Registry of facilities and owners.

(a) The owner of any facility as defined in this article, other than a pipeline that is subject to the provisions of article IX of this chapter, shall provide to the director, and thereafter maintain, current: (1) contact information indicating the name and address of the owner of the facility and the individual at that address designated as a contact person for the owner; and (2) information describing and locating any facilities of the owner in the public right-of-way. The information shall be in the form prescribed by the director. 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 V of this chapter. It shall be unlawful for any owner to fail to provide or maintain current information as required by this section.

(b) Any location information submitted under this section that is designated by the owner as "confidential," "trade secret," or "proprietary" will not be disclosed to the public by the city without the consent of the owner, unless otherwise compelled by an opinion of the attorney general pursuant to the Texas Public Information Act ("TPIA") or by order a court having jurisdiction of the matter pursuant to applicable law. Upon receipt of a request for such location information, the city will notify the contact person of the request in writing. If the owner elects to protect the location information from disclosure, the owner shall immediately notify the city and submit to the Texas Attorney General a brief that: (1) identifies the legal exceptions that apply; (2) identifies the specific parts of each document that are covered by each exception; and (3) explains why each exception applies. The city shall have no obligation or duty to submit any argument or brief to the Texas Attorney General on behalf of the owner.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-393. Relocation required.

(a) Whenever the city engineer determines, in the exercise of sound engineering judgment, that a facility should be relocated for the accomplishment of a public works project, the owner of the facility shall relocate the facility at the owner's sole expense in accordance with this article. In the event that an owner's failure to timely relocate a facility in accordance with this article causes the city to incur expenses, damages or losses, including loss of grant funds, for any resulting delay, the owner of the facility shall be responsible for the city's expenses, damages or losses.

(b) It shall be the policy of the city to design public works projects to minimize the relocation of facilities, but the city shall not be obligated to design a public works project to avoid facility relocation and the determination of the city engineer of the appropriate design of the public works project shall be final.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-394. Notice of annual adopted capital improvement plan.

The city engineer shall provide notice of the passage of the annual adopted capital improvement plan for the city within 60 days of its passage by the city council. Notice shall be given by first class letter deposited into the United States postal service to the person and at the address on file with the city pursuant to section 40-392 of this Code and shall identify the location on the city's website or provide notice of other locations where the adopted capital improvements plan can be reviewed.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-395. City engineer's preliminary notice.

When during the design of a public works project the city engineer, based on information then available to him, determines that the presence of a facility in a public right-of-way may interfere with a public works project so that the relocation of the facility may be necessary, the city engineer shall provide the owner of the facility written notice of the planned public works project and the potential for relocation. The city engineer shall make this determination as soon as practicable, but no later than a reasonable period following receipt of a preliminary engineering report for the public works project, and shall give the notice to the owner as soon as practicable thereafter. The notice shall be given to the contact person identified pursuant to section 40-392 or section 40-232 of this Code, as applicable, by any means that requires proof of delivery. The notice shall identify the public works project and provide the owner with an





opportunity to discuss with the city engineer the public works project and potential design alternatives that could avoid facility relocation. Notice pursuant to this and the preceding section of this Code is for the purpose of coordination only and 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.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-396. City engineer's final determination and notice.

(a) The city engineer shall determine before completion of final design of a public works project whether the design of the public works project requires relocation of a facility and shall provide notice thereof to the owner of any facility required to be relocated. The notice shall be given in the manner provided in section 40-395 of this Code. In making a determination pursuant to this section, the city engineer or the director, as applicable, shall consider the purpose and complexity of the public works project and timetable for its construction, the number of facilities potentially affected by the project, the number of facility relocations required for the project, the cost and complexity of relocating each facility and any other factors he determines in the exercise of sound engineering judgement are relevant to the public works project.

(b) Notwithstanding the notice provisions of this Code that are otherwise applicable, if the city engineer discovers during the construction of a public works project:

(1) That a facility located in the public right-of-way not previously known to the city engineer requires relocation; or

(2) That inaccurate information about the location of the facility was provided by or on behalf of the facility owner and relocation is required which was not previously anticipated;

the city engineer shall give notice of the necessity for relocation in the manner provided in section 40-395 of this Code.

(c) Except for facilities discovered under section 40-396 (b)(1) or (2), the owner of the facility shall have a period of 60 days following the date of the notice sent pursuant to subsection (a) of this section to submit a proposed schedule for relocation of the facility for approval by the city engineer. The city, through the city engineer, and the owner may enter into a memorandum of agreement, in a form approved by the city attorney, evidencing agreement on the relocation schedule. The city engineer for good cause may extend, for a period not to exceed an additional 60 days, the time for submission or re-submission of a relocation schedule. The owner of facilities discovered under section 40-396(b)(1) or (2) shall provide to the city engineer at the earliest possible date, but not later than five business days following the owner's receipt of notice under that section, a proposed schedule for relocation of the facility and shall diligently prosecute the relocation of such facility until completed.

(d) No schedule for the relocation of a facility shall provide a period for relocation of longer than 180 days without written approval of the director, who for good cause shown by the facility owner, may extend the period of time for relocation. The time allowed for relocation shall commence on the date agreed to by the city engineer and the facility owner, but no later than the date of the notice to proceed for the public works project, unless extended by the city engineer for good cause shown by the facility owner, and shall be suspended upon the occurrence, and extended for the duration of, an event of force majeure, which shall include a strike, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of public enemy, accident, fire, flood or other act of God, sabotage or other events, where the facility owner has exercised all due care in the prevention thereof so that the causes or other events are beyond the control and without the fault or negligence of the facility owner. For good cause shown by the facility owner, the city engineer may determine that the failure of the city to timely process a properly filed, complete application for a city permit or approval required for the facility relocation constitutes an event of force majeure.





In determining "good cause" as used in this section (excluding the failure of the city to act timely as set forth in the preceding paragraph) the director shall be entitled to consider such factors, not attributable to any fault or negligence of the facility owner, including, but not limited to the following:

1. Availability of materials or supplies required for a relocation.

2. Availability of sufficient labor or technical personnel to timely effect a relocation.

3. Any loss or damage to the public or users of the facility to be relocated.

4. The availability of any alternative means of providing to the public or other users the services of the facility to be relocated.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-397. Relocation authorized; other legal action.

(a) If upon the expiration of 60 days from the date of the city engineer's notice to the owner pursuant to subsection 40-396(a) of this Code, or five business days from the date of the city engineer's notice to owner pursuant to subsection 40-396(b) of this Code, or any extension of time approved by the city engineer, the city and the owner have not agreed upon a schedule for the relocation of the facility at the owner's expense, the city engineer is authorized to:

(1) Refer the matter to the city attorney for appropriate legal action; or

(2) Relocate the facility, or cause the facility to be relocated, on behalf of the owner and, subject to subsection (d) of this section, recover the cost of the relocation from the owner.

(b) If the city engineer determines that the owner has not timely complied with the terms of an agreed relocation schedule and that the unfinished relocation of the facility will delay completion of the affected city project, the city engineer is authorized to:

(1) Refer the matter to the city attorney for appropriate legal action; or

(2) Relocate the facility, or cause the facility to be relocated, on behalf of the owner and, subject to subsection (e) of this section, recover the cost of the relocation from the owner.

(c) No later than the date of the commencement of any construction activity for the relocation of any facility by the city pursuant to this section, the city engineer shall give notice of the date on which the relocation shall begin by first class letter deposited into the United States postal service to the person and at the address on file with the city pursuant to section 40-392 of this Code. Not less than three days before the transfer of service to a facility relocated pursuant to this section is feasible, the city engineer shall give notice of such fact by first class letter deposited into the United States postal service to the affected person and at the address on file with the city pursuant to section 40-392 of this Code. If the facility owner fails to commence the transfer of service within 24 hours after the expiration of the third calendar day following the giving of notice to the facility owner, the city may deem the original facility abandoned and cause it to be removed without further liability and, at the city's election, transfer such service to the relocated facility.

(d) Failure of a facility owner to provide a relocation schedule satisfactory to the city engineer, applying reasonable engineering judgment, within the initial 60 or 5 day period, whichever is applicable, or any extension thereof, shall constitute authorization for the city to assess damages, including expenses, damages or losses for project delay, and, subject to subsection (e) of this section, recover costs of relocating the facility from the owner and shall also constitute a waiver by the owner of any claim for damages against the city.

(e) Failure of a facility owner to comply with an agreed relocation schedule shall constitute authorization for the city to recover damages, including expenses, damages or losses for project delay, and





recover costs of relocating the facility from the owner and shall also constitute a waiver by the owner of any claim for damages against the city.

(f) All relocations required under this article shall be at the sole expense of the owner of the facility, except to the extent provided otherwise in a current, valid city franchise held by the owner of the facility or by section 40-234(k) of this Code. In addition, if the city requires the relocation of a facility from a location approved by the city as part of a public works project pursuant to this article within five years following the date of a relocation of the facility pursuant to this article, the city shall bear the cost of the subsequent relocation of the facility. Nothing in this subsection shall preclude the application of funds from sources other than the city to the payment of relocation expenses on behalf of the owner of a facility.

(g) The city engineer's certification of the costs of relocation of any facility undertaken on behalf of an owner shall constitute prima facie evidence of the reasonableness of the costs chargeable to the owner.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-398. Notice after relocation.

If a facility is relocated under section 40-397 of this Code, the city engineer shall, within 30 days of the completion of the relocation, notify the owner of the facility that is relocated of the owner's right to a hearing under section 40-399 of this Code.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-399. Hearing upon written request.

The owner of a facility that is relocated under section 40-397 of this Code shall, upon written request within 10 days from the mailing of the city engineer's notice under section 40-398 of this Code, be entitled to a hearing on the issue of the reasonableness of the city's costs of relocation. The hearing shall be conducted by a hearing officer designated by the director, and the director shall promulgate rules for hearings. The hearing officer's decision on the issue of the reasonableness of the city's costs of relocation is final.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-400. Conflicts.

The provisions of article IX of this chapter shall control for those facilities governed thereby to the extent inconsistent with this article.

(Ord. No. 05-371, § 2, 4-13-05)

Sec. 40-401. Actions authorized to enforce article.

The city attorney is authorized to institute appropriate civil proceedings to compel the relocation of any facility whose relocation the city engineer determines to be necessary for a public works project and seek other relief consistent with this article.

(Ord. No. 05-371, § 2, 4-13-05)



ARTICLE XIX. THE SALE OF USED MOTOR VEHICLES AT CERTAIN LOCATIONS


ARTICLE XIX. THE SALE OF USED MOTOR VEHICLES AT CERTAIN LOCATIONS [9]


Sec. 40-432. Motor vehicles for sale; penalties; towing

Sec. 40-433. Notice procedures.

Sec. 40-434. Procedures for towing; contesting a tow.



As used in this article, the following words and terms shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicates another meaning:

Motor vehicle has the meaning ascribed in Section 502.001 of the Texas Transportation Code, as amended from time to time.

Police chief means the chief of the police department and any employees of the police department assigned by the chief to perform the duties prescribed in this article.

Residence has the meaning ascribed in section 28-201 of this Code, as amended from time to time.

(Ord. No. 06-29, § 2, 1-11-06)

Sec. 40-432. Motor vehicles for sale; penalties; towing

(a) Except as provided in subsection (b) of this section, it shall be unlawful for any person to park a motor vehicle on public or private property having displayed thereon any writing indicating that such vehicle is for sale.

(b) The provisions of this section shall not apply to:

(1) A vehicle parked on private property having both a certificate of occupancy issued by the city and a license from the Texas Department of Transportation authorizing the sale of vehicles at that location;

(2) A single vehicle legally parked on the premises of, or in the right-of-way immediately adjacent to a residence provided the vehicle is owned by or registered to the occupant of the residence; or

(3) A vehicle that is parked on either public or private property adjacent to a building or location to which the vehicle owner has traveled to perform his normal course of business or employment or on a personal errand.

(4) A vehicle located on private property that has affixed on the windshield a notarized statement from the property owner or authorized agent indicating that the vehicle owner has permission to sell the vehicle on the property. The notarized statement shall include the name, address and telephone number of the property owner or authorized agent. If the property owner is a partnership or corporation, the notarized statement shall include the name, address, and telephone number of one of the partners or one of the principals.

(c) A violation of this section shall constitute a class C misdemeanor.





(d) Subject to the provisions in subsection (e) of this section:

(1) A vehicle parked on public property in violation of this section shall be subject to immediate removal; or

(2) A vehicle parked on private property in violation of this section shall be subject to removal not sooner than two hours after the notice pursuant to section 40-433 of this Code is attached to the vehicle.

(e) Prior to causing a vehicle to be removed pursuant to subsection (d), the police chief shall attempt to contact the individual whose phone number appears on the "for sale" sign of the vehicle by phone to provide an opportunity for that individual to remove the vehicle. If contact is made, the individual shall have one hour to remove the vehicle from that location after the police chief has contacted him regarding the violation.

(Ord. No. 06-29, § 2, 1-11-06)

Sec. 40-433. Notice procedures.

The police chief may, without the consent of the owner or operator of a vehicle parked on private property in violation of this section, cause the vehicle and any property on or in the vehicle to be removed and stored at a vehicle storage facility at the owner's or operator's expense if:

(1) The police chief has mailed to the owner or operator of the vehicle actual notice that the vehicle is in violation of this section and that it will be towed and stored at the vehicle owner's or operator's expense if it is not removed; or

(2) The police chief has caused a conspicuous notice to be attached to the vehicle's front windshield or, if the vehicle has no front windshield, to a conspicuous part of the vehicle stating:

a. That the vehicle is parked in violation of this section;

b. That the vehicle will be towed and stored at the expense of the owner of the vehicle not sooner than two hours after the notice is attached to the vehicle; and

c. A telephone number that is answered 24 hours a day to enable the owner of the vehicle to locate the vehicle.

(Ord. No. 06-29, § 2, 1-11-06)

Sec. 40-434. Procedures for towing; contesting a tow.

(a) All tows conducted pursuant to this article shall be performed in accordance with chapter 8 of this Code.

(b) The owner or operator of a vehicle has the right to contest the towing of the vehicle under chapter 685 of the Texas Transportation Code. A hearing under chapter 685 shall be in the justice court having jurisdiction in the precinct in which the vehicle storage facility is located.

(Ord. No. 06-29, § 2, 1-11-06)






FOOTNOTE(S):

--- (9) ---

Editor's note— Ord. No. 06-29, § 2, adopted January 11, 2006, provided for a new Art. XIV. Inasmuch as there is already an existing Art. XIV, at the request of the city, said article was redesignated as Art. XIX. (Back)



ARTICLE XX. NEWSRACKS




Sec. 40-452. Permit and decal required.

Sec. 40-453. Permit.

Sec. 40-454. Maintenance and display.

Sec. 40-455. Size and design standards.

Sec. 40-456. Placement and location.

Sec. 40-457. Abandoned newsracks.

Sec. 40-458. Seizure and removal of newsracks.

Sec. 40-459. Issuance of citations.



The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicates a different meaning:

Central business district means the area beginning at the intersection of the centerline of U.S. 59 and the centerline of I.H. 45; thence in a northwesterly and northerly direction along the centerline of I.H. 45 to its intersection with the centerline of I.H. 10; thence in an easterly direction along the centerline of I.H. 10 to its intersection with the centerline of U.S. 59; thence in a southwesterly direction along the centerline of U.S. 59 to its intersection with I.H. 45, the point of beginning.

Department means the department of administration and regulatory affairs.

Newsrack means any self-service or coin-operated box, container, storage unit, or other dispenser installed, used, or maintained for the display and sale or distribution without charge of newspapers, periodicals, magazines or other publications.

Parking management division means the parking management division of the department.

Vending screen means any device constructed of metal or other similar permanent material installed by or with the approval of the city designed and used to obscure from view on an adjacent roadway the existence of newsracks.

(Ord. No. 07-225, § 7, 2-14-07; Ord. No. 08-417, § 11, 5-14-08; Ord. No. 08-568, § 30, 6-18-08; Ord. No. 2010-304, § 10, 4-21-2010, eff. 4-1-2010)

Sec. 40-452. Permit and decal required.

It shall be unlawful for any person to place, maintain, or cause to be placed, or maintained a newsrack on, or projecting on, any public right-of-way without first receiving a permit from the city for the newsrack and affixing a decal evidencing such permit on the newsrack.

(Ord. No. 07-225, § 7, 2-14-07)





Sec. 40-453. Permit.

(a) Application. An application for a newsrack permit for one or more newsracks shall be made to the director on a form prescribed by the director, which shall include, without limitation:

(1) The name, street and mailing address, email address, and telephone number of the applicant, which shall be the duly authorized representative of both the publisher and, if applicable, any independent distributor authorized to service the publisher(s) newsrack for which the permit is sought.

(2) The name, street and mailing address, email address, and telephone number of the distributor or other responsible person whom the city may notify or contact at any time concerning the applicant(s) newsrack(s).

(3) The number of proposed newsracks and a description of the exact proposed locations.

(4) A description of each proposed newsrack, including its dimensions and signage, and whether it contains a coin-operated mechanism.

(5) The name and frequency of the publication proposed to be contained in each newsrack.

(b) Separate application. A separate application shall be required for each publication.

(c) Issuance of permit. If the application is properly completed and the type of newsrack and location proposed for each newsrack meets the standards set forth in this article, the parking management division shall issue a permit within ten business days from the date the applicant files the application with the director. A single permit shall be issued for all newsracks, applied for by an applicant, that meet the standards of this article. A permit shall not be transferable.

(d) Period of permit validity. A permit shall be valid for three years.

(e) Permit application fee; decal fee. The permit application and decal fees per newsrack shall be stated for this provision in the city fee schedule. All fees imposed under this article shall be paid to the director at the time the application is filed and retained in a fund administered by the department for its parking management division.

(f) Decal replacement. The parking management division may require a permittee to replace a decal that has become worn, faded, defaced, or missing. The decal replacement fee shall be stated for this provision in the city fee schedule.

(g) Renewal. A permit may be renewed if, prior to its expiration, the permittee pays the renewal fee stated for this provision in the city fee schedule.

(h) Issuance of decal. Each permittee shall be issued a pre-printed decal for each permitted newsrack, which shall be affixed to the lower right or left corner inside the window opening on the front of each newsrack.

(i) Denial of permit. If the application is incomplete or the type of newsrack and location proposed for a newsrack does not meet the standards set forth in this article, then the director shall deny the permit application. If the newsrack permit is denied, in whole or in part, the director shall, by certified mail or by email to the address(es) provided by the applicant, notify the applicant within ten business days from the date of filing a completed application with the city, explaining the reasons for the denial of the permit. The applicant shall have ten business days from the receipt of notice of a denial to correct and resubmit the application or appeal the decision, in writing, to the hearing examiner designated by the director.

(j) Suspension or termination of permit. The director may, following ten business days written notice to the permittee and an opportunity to be heard, suspend or terminate a permit. Grounds for suspension or termination require a proven history of continual noncompliance with the requirements





of this Code, consisting of a minimum of four violations in a 12-month period for which citations have been issued under section 40-459 of this article and a final judgment of guilt or a plea of nolo contendere has been entered. The period of suspension shall be at the discretion of the director, depending on the severity of the violations, not to exceed six months. Where the director finds that termination is appropriate, the permittee may not apply for a new permit for a period of 12 months. The decision of the director may be appealed as provided in subsection (k) of this section.

(k) Appeal of denial, suspension, or termination. The hearing examiner shall conduct a hearing within 30 days of receipt of the applicant(s written appeal request. Written notice of the time and place of the hearing shall be provided to the applicant at least ten business days prior to the date of the hearing. The hearing shall be conducted according to procedures promulgated by the director. The hearing examiner shall render a written decision within 15 business days after the date of the hearing. The decision of the hearing examiner shall be final.

(l) Amendment to permit. In the event of a change in any of the information contained in the application, the permittee shall submit the change in writing to the director. A permittee may install and maintain additional newsracks by amendment to the permit. This section shall govern the review and approval of any amendment.

(m) Processing. The director shall have authority to promulgate forms, rules, and procedures relating to the permitting process.

(Ord. No. 07-225, § 7, 2-14-07; Ord. No. 2011-1168, § 13, 12-14-2011)

Sec. 40-454. Maintenance and display.

(a) Any newsrack requiring a permit under this article shall:

(1) Be in a neat and clean condition and in good repair at all times, i.e., reasonably free of dirt and grease; no chipped, faded, peeling, or cracked paint; no rust and corrosion; no broken or cracked plastic or glass parts; and no broken structural parts.

(2) Be constructed, installed, and maintained in a safe and secure condition.

(3) Be made of solid material on all sides; no wire or other open form of newsrack will be permitted.

(4) Be kept free of graffiti.

(5) Be painted or covered with a protective coating, so as to keep it free from rust and graffiti, and shall be cleaned and repaired on a regular basis.

(6) Other than the display of the publication contained therein, not display or be affixed with any words or pictures, except for identifying information and coin return information as required herein; however, the front and back of each newsrack may be affixed with a single sign or decal, no larger than 15 inches by 17 inches, containing only the information relating to the display, sale or distribution of the publication contained in the newsrack.

(7) Be affixed with identifying information, which shall contain the name, address and telephone number of the newsrack owner and of the distributor of the publication contained therein. Such information shall be placed in a visible location on the front of the newsrack, and shall be legible. The size of the identifying information shall be no larger than three inches by five inches.

(8) Be affixed with one face plate, no larger that four inches by seven inches, on the front or top of the newsrack near the coin-operated mechanism, if applicable, containing only the information indicating the publication(s price(s) and the acceptable coin combinations or indicating that the publication is free of charge.





(b) In addition to the requirements of subsection (a) of this section, any coin-operated newsrack requiring a permit under this article shall:

(1) Be equipped with a coin-return device that is maintained in good repair and working order.

(2) Display information on how to secure a refund in the event of coin return malfunction. Such information shall be placed in a visible location on the front or top of the newsrack, shall be legible, and no larger than three inches by five inches.

(Ord. No. 07-225, § 7, 2-14-07)

Sec. 40-455. Size and design standards.

(a) Size requirements. Any newsrack requiring a permit under this article shall have a height of not less than 36 inches and not more than 54 inches (excluding the base); a width of not less than 15 inches and not more than 25 inches; and a depth of not less than 12 inches and not more than 21 inches.

(b) Physical requirements. Any newsrack requiring a permit under this article shall meet the following requirements:

(1) A newsrack shall be manufactured from 20-gauge or thicker zinc coated steel.

(2) All hinge rods and springs on a newsrack shall be made of steel.

(3) Coin mechanisms, if any, shall be housed in the body of a newsrack or in armored heads made from 12-gauge or thicker steel welded or bolted to the body of a newsrack.

(4) A coin-operated newsrack shall have a net weight of no less than 80 pounds, when empty of publications, excluding its base. A newsrack that provides free publications shall have a net weight of no less than 50 pounds, when empty of publications, excluding its base.

(5) A newsrack shall be attached to a concrete base or concrete base and pedestal, with a net weight of not less than 95 pounds, and the concrete base shall be 23 inches measured from front to back and no more than 1½ inches beyond each side of the bottom of the newsrack, with a height of three inches, and shall not be decorated or colored.

(6) The door of a newsrack shall be constructed with a window opening to display clearly the front page of the current edition, and the window opening shall be covered by plastic manufactured from no less than .060″ polycarbonated clear plastic material.

(7) Newsrack door handles shall be a loop-style handle with a minimum one-inch clearance, designed to allow a person to slip his hands easily in and out of the handle.

(8) Newsrack door springs shall meet the tension requirements of the Americans with Disabilities Act.

(9) The color of the entire newsrack including the coin box shall be forest green (RAL # 6009).

(10) The design of a newsrack shall not create a danger to the persons using the newsrack.

(c) Any newsrack requiring a permit under this article shall comply with federal, state and local laws and regulations including, without limitation, the Americans with Disabilities Act, Texas Accessibility Standards, and other laws and regulations relating to barrier-free design.

(Ord. No. 07-225, § 7, 2-14-07; Ord. No. 07-984, § 1, 8-29-07)

Sec. 40-456. Placement and location.

(a) A person may not install, use or maintain a newsrack on any public right-of-way if the newsrack:





(1) Endangers public safety;

(2) Interferes with public utility, public transportation, or other governmental use; or

(3) Interferes with or impedes:

a. Pedestrian or vehicular traffic;

b. Entry or exit from a residence or business;

c. Access to a legally parked or stopped vehicle;

d. Use of a traffic sign or signal, emergency call box, transit shelter, bus stop, elevator, mailbox, or other public service; or

e. Access to use of a delivery area or loading zone.

(b) Except as otherwise provided in subsections (c), (d), and (e) of this section, a newsrack requiring a permit under this article shall be placed or maintained on any public right-of-way in compliance with the following standards:

(1) Every newsrack shall be placed so as to open toward the sidewalk.

(2) If multiple newsracks are permitted at the same location, all such newsracks must be placed together in a straight line and abutting adjoining newsracks; however, no group of newsracks shall extend for a distance of more than ten feet; no group of newsracks shall be closer than four feet to another group of newsracks; and no group of newsracks shall contain more than one newsrack of the same publication.

(3) No newsrack shall be chained or otherwise attached to another newsrack. Newsracks shall not be chained or otherwise attached to any parking meter, kiosk, trash receptacle, street light, utility pole or device, sign pole, stand pipe, transit shelter, bus bench, bus stop, or to any tree, shrub or other plant, or other structure other than the newsrack base.

(4) No newsrack shall be placed, installed or maintained:

a. Within three feet of any fire hydrant, emergency call box, or other emergency facility.

b. Within three feet of any parking meter, bench, kiosk, trash receptacle, tree well, utility pole, signal pole, sign pole, stand pipe, or control cabinet.

c. Within five feet of any transit shelter, bus bench or designated bus stop. The distance requirement shall be measured from the roof of any transit shelter, the edge of any bus bench, or the pole sign for any designated bus stop.

d. Within five feet of any alley, loading zone, disabled ramp or curb cut.

e. At any location where the clear space for the passage of pedestrians after placement or installation is less than three feet, or as required by ADA Accessibility Guidelines, whichever is greater.

f. Within three feet of or on any area of flowers or shrubs or similar landscaping, or in such a manner where ordinary use of the newsrack will cause damage to such landscaping.

g. Within three feet of any commercial window display.

h. Within three feet of or in such a manner as to block or cover any portion of an underground utility vault, manhole, or other sidewalk underground access location.

i. In such a manner as to be permanently affixed to any sidewalk, street or other city property.

j. Within 20 feet of any crosswalk.





(c) Within the central business district:

(1) No newsrack shall be placed or maintained:

a. Within ten feet of any transit shelter, bus bench or designated bus stop. The distance requirement shall be measured from the roof of any transit shelter, the edge of any bus bench, or the pole sign for any designated bus stop.

b. At any location where the clear space for the passage of pedestrians is less than five feet; and

(2) Newsracks shall be placed only on a sidewalk, near a curb, in which case, the back of the newsrack shall be placed parallel to such curb and not less than 18 inches nor more than 24 inches from the face of the curb in no parking zones, otherwise, not less than 36 inches and no more than 42 inches from the face of the curb. A newsrack placed behind a vending screen shall be exempt from this provision; however, in such instance, a newsrack may not be placed between a vending screen and the curb.

(d) Along a major thoroughfare, no newsrack shall be placed or maintained within ten feet of any transit shelter, bus bench or designated bus stop. The distance requirement shall be measured from the roof of any transit shelter, the edge of any bus bench, or the pole sign for any designated bus stop.

(e) A newsrack requiring a permit under this article may be placed on the grassed area in the public right-of-way adjacent to a sidewalk when placement of the newsrack on the sidewalk would reduce clear passage for pedestrians in violation of subsections (b)(4)e or (c)(2) of this section.

(f) In the event the city must expand or otherwise reconfigure public right-of-way or make improvements thereto to improve the adjacent street, sidewalk, or for other public purpose, any and all newsracks displaced by such improvements shall be removed by the permittee at the permittee(s sole cost and expense and in accordance with the instructions of the city. Wherever possible, and only in accordance with the requirements of this ordinance, the city shall attempt to allow the relocation of any newsracks displaced as provided herein to the newly reconfigured right-of-way without additional permit fee; provided, however, where such right-of-way will no longer accommodate newsracks in accordance with the requirements of this ordinance, the city shall not be obligated to provide alternative or other sites for such displaced newsracks.

(Ord. No. 07-225, § 7, 2-14-07)

Sec. 40-457. Abandoned newsracks.

In the event any newsrack (a) is severely damaged, or (b) remains empty for more than 31 days, the newsrack shall be deemed abandoned, and may be seized and removed in the manner as provided in section 40-458 of this Code.

(Ord. No. 07-225, § 7, 2-14-07)

Sec. 40-458. Seizure and removal of newsracks.

(a) The city may seize and remove a newsrack if the person responsible for the newsrack has failed:

(1) To obtain a permit as required by this article;

(2) To remedy a violation within ten business days following the date of notice or a written decision by the hearing examiner that the newsrack was installed or maintained in violation of this article; or

(3) To request a hearing within ten business days following the date of notice of a violation.





(b) Other than in the instance of failing to obtain a permit as provided in (a)(1) above, before any newsrack is seized, the person responsible for its installation and maintenance shall be notified and provided ten business days in which to remedy the violation or to request a hearing to contest the seizure.

(c) A person notified under this section may request, in writing, a hearing before a hearing examiner designated by the director.

(d) The hearing examiner shall conduct a hearing within 30 days of receipt of the applicant's written request. Written notice of the time and place of the hearing shall be provided to the applicant.

(e) The hearing shall be conducted according to procedures promulgated by the director.

(f) The hearing examiner shall render a written decision within 15 days after the date of the hearing. The decision of the hearing examiner shall be final.

(g) In the event the seized or impounded newsrack is not claimed and picked up from the city within 31 calendar days from the date the newsrack was seized, or in the case where the owner is known, within 31 calendar days from the date the notice was given to the owner to claim the newsrack, the city has the absolute right to dispose of said newsrack by salvage or other method available to the city. "Salvage" as used in this section shall mean the disposal through waste management procedure or recycling if practical. Any owner or agent of the owner of said newsrack shall be deemed to have waived any claim of ownership or damage of said newsrack if said owner or agent has not taken the necessary steps to reclaim the newsrack, including paying any fees under this chapter, and shall assume all risk of loss for destruction or salvage of said newsrack.

(Ord. No. 07-225, § 7, 2-14-07; Ord. No. 09-1112, § 2, 11-10-09, eff. 11-11-09)

Sec. 40-459. Issuance of citations.

Upon completion of appropriate training, employees designated by the police department and the parking management division are authorized to issue citations charging the violation of any provision of this article.

(Ord. No. 07-225, § 7, 2-14-07)


(a) Any failure to comply with any applicable provision of this article shall be an offense punishable as provided in section 1-6 of this Code.

(b) It shall be unlawful for a person, other than the permittee, to remove a decal from a newsrack.

(c) It shall be unlawful for any person to remove, take, or appropriate more than one copy of a publication from any newsrack for the purpose of (i) selling such publication to any recycler; (ii) selling, trading or bartering such publication to anyone for payment of any kind; or (iii) depriving others of the opportunity to read or enjoy such publication. This prohibition shall not apply to an authorized representative of the owner or operator of any newsrack, or any publisher or authorized distributor of a publication.

(Ord. No. 07-225, § 7, 2-14-07)

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