§ 34A-8. Authorization; registration; compensation and fees.
(a)
Registration.
(1)
In order to protect the public health, safety and welfare, all users of the right-of-way will register with the City of Irving.
(2)
Registration and permits will be issued in the name of the person who will own the facilities.
(3)
Registration and permits are not authorizations to install facilities in the rights-of-way, such authorization must be through municipal franchise or license or municipal agreement, except when otherwise required by state law.
(4)
Registration must be renewed every five (5) years. For utilities with a current franchise or license, the franchise or license will be evidence of renewal. If a registration is not renewed and subject to sixty-day notification to the owner, the facilities of the user will be deemed to have been abandoned.
(5)
When any information provided for the registration changes, the user will inform the City of Irving of the change no more than thirty (30) days after the date the change is made.
(6)
Registration shall include:
a.
The name of the user of the right-of-way;
b.
The name, address and telephone number of people who will be contact person(s) for the user;
c.
The name, address and telephone number of any contractor or subcontractor, if known, who will be working in the right-of-way on behalf of the user;
d.
The name(s) and telephone number of an emergency contact who shall be available twenty-four (24) hours a day and said emergency contact shall be employed by and have binding and decision-making authority for the owner of the facilities;
e.
Insurance.
1.
Prior to construction in the right-of-way, an applicant must provide, and users must maintain, acceptable proof of liability insurance in the total amount of six million dollars ($6,000,000.00); one million dollars ($1,000,000.00) primary plus five million dollars ($5,000,000.00) umbrella if requested by the owner of the facilities, or other provisions as acceptable to the director of financial services or designee. The City reserves the right to review the insurance requirements and to reasonably adjust insurance coverage and limits when the City Manager determines that changes in statutory law, court decisions, or the claims history of the industry or the applicant or user require adjustment of the coverage.
2.
The coverage must be on an "occurrence" basis and must include coverage for personal injury, contractual liability, premises liability, medical damages, underground, explosion and collapse hazards.
3.
Each policy must include a cancellation provision in which the insurance company is required to notify the city in writing not fewer than thirty (30) days before canceling, failing to renew, or reducing policy limits.
4.
The applicant shall file the required original certificate of insurance prior to any commencement of work. The certificate shall state the policy number; name of the insurance company; name and address of the agent or authorized representative of the insurance company; name, address and telephone number of insured; policy expiration date; and specific coverage amounts. The city may accept a certificate of insurance or the city may require another form of legally binding proof of insurance.
5.
An insurer has no right of recovery against the city. The required insurance policies shall protect the person and the city. The insurance shall be primary coverage for losses covered by the policies.
6.
The policy clause "other insurance" shall not apply to the city if the city is an insured under the policy.
f.
Bonds.
1.
Applicant or Applicant's contractor, at City's option, shall file an annual surety bond which will be valid each year construction will occur through one (1) full year after the completion of the construction from a surety company authorized to do business in the State of Texas in the amount of the estimated amount of the cost to restore the right-of-way for the work anticipated to be done in that year, in the event the applicant leaves a job site in the right-of-way unfinished, incomplete or unsafe or other provisions as acceptable to the director of financial services or designee.
2.
The above requirements may be met by utilities with a current franchise or license if their current franchise or license adequately provides for insurance or bonds or provides an indemnity in favor of the city.
g.
Indemnity.
1.
to the extent allowed by state law, each person placing facilities in the public rights-of-way shall agree to promptly defend, indemnify and hold the city harmless from and against all damages, costs, losses or expenses (i) for the repair, replacement, or restoration of city's property, equipment, materials, structures and facilities which are damaged, destroyed or found to be defective as a result of the person's acts or omissions, (ii) from and against any and all claims, demands, suits, causes of action, and judgments for (a) damage to or loss of the property of any person (including, but not limited to the person, its agents, officers, employees and subcontractors, city's agents, officers and employees, and third parties); and/or (b) death, bodily injury, illness, disease, loss of services, or loss of income or wages to any person (including, but not limited to the agents, officers and employees of the person, person's subcontractors and city, and third parties), arising out of, incident to, concerning or resulting from the negligent or willful act or omissions of the person, its agents, employees, and/or subcontractors, in the performance of activities pursuant to this article.
2.
This indemnity provision shall not apply to any liability resulting from the negligence of the city, its officers, employees, agents, contractors, or subcontractors.
3.
The provisions of this indemnity are solely for the benefit of the city and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity.
(7)
The above requirements may be met by utilities with a current franchise or license if their current franchise or license adequately provides for insurance or bonds or provides an indemnity in favor of the city.
(8)
Failure to maintain registration requirements. In addition to all other legal penalties, including criminal penalties; failure to register or to maintain and update registration information may result in denial of a permit application or removal of facilities.
(b)
Authorization.
(1)
Municipal authorization or agreement shall be required, except when clearly preempted by state law. Nothing in this ordinance shall be considered to grant authorization to any user. When any state law authorizing right-of-way use is struck down, pre-empted, declared to be invalid or void, in whole or in part, the user relying upon said law for authorization shall seek separate authorization or shall cease using the right-of-way.
(2)
When municipal authorization or agreement is required, permit for construction work may not be submitted until said authorization or agreement is obtained.
(3)
Municipal authorization does not extend to the use of any property or facilities other than the right-of-way.
(4)
Municipal authorization does not address or allow the use of third party facilities in the right-of-way.
(5)
This chapter does not constitute or create authority to place, reconstruct, or alter facilities in, on, or over the public rights-of-way, and said authority must be obtained by separate instrument in accordance with this section or by operation of other laws.
(c)
Compensation and fees.
(1)
Municipal right-of-way use shall be compensated as required by the state constitution, state law, franchise, license or other agreement.
(2)
The city may structure due dates on payments in such a manner so as to be administratively efficient.
(3)
Application fees, as allowed by state law, for work or installations in the right-of-way shall be the fees set by the city council. Such fees may be set by ordinance, resolution, in the budget or by any other lawful means.
Failure to pay application fees, or failure of any payment to properly process shall result in the denial or withdraw of a permit.
( Ord. No. 2017-9964, § 2, 8-10-17 )