CHAPTER 3

BUILDING REGULATIONS

   ARTICLE 3.100 UNIFORM BUILDING CODE*

The City of Krugerville hereby adopts certain documents, two copies of which are on file and are open for inspection of the public in the office of the city secretary of the City of Krugerville, being marked and designated as:

   Sec. 3.101     Adoption

The city has adopted the International Building Code, 2003 edition, governing the development of properties within the city and the city's extraterritorial jurisdiction. (Ordinance 2006-010, sec. 1, adopted 8/24/06)

   Sec. 3.102     Structural Welding Code

The city hereby adopts certain documents, two copies of which are on file and are open for inspection of the public in the office of the city secretary, being marked and designated as:

     Structural Welding Code, Reinforcing Steel, AWS D1,4-92 (UBC Standard 19-1); American National Standard for Accessible and Useable Buildings and Facilities, A117.11992, published by the Council of American Building Officials; Load and Resistance Factor Design Specifications for Structural Steel Buildings, December 1, 1993 (Chapter 22 Division II); Specification for Structural Steel Buildings Allowable Stress Design and Plastic Design, June 1, 1989 (Chapter 22 Division III); Load and Resistance Factor Design Specifications for Cold Formed Steel Structural Members, 1986 (with December 1989 Addendum) (Chapter 22, Division VI); Specification for Design of Cold-Formed Steel Structural Members, 1986 (Chapter 22, Division VII); Standard Specification for Steel Cables for Buildings, ASCE 17-95 (Chapter 22, Division XI); and National Design Specification for Wood Construction, Revised 1991 Edition (Chapter 22 Division III, Part 1), as modified or amended in the Uniform Building Code referenced herein; be and the same are hereby adopted as the code of the City of Krugerville for regulating the erection, construction, enlargement, alteration, repair, moving, removal, demolition, conversion, occupancy, equipment, use, height, area and maintenance of all buildings or structures in the City of Krugerville providing for issuance of permits and collection of fees therefor; and each and all of the regulations, provisions, conditions and terms of such Uniform Building Code, 1997 Edition, Volumes 1, 2, and 3, published by the International Conference of Building Officials, and the secondary publications referenced above, all of which are on file in the office of the city secretary of the City of Krugerville are hereby referred to, adopted an made a part hereof as if fully set out in this article.

(Ordinance 2001-04 adopted 3/1/01)

   ARTICLE 3.200 ELECTRICAL CODE*

   Sec. 3.201     Title

This article shall be known as the “electrical code.” (Ordinance 2001-05 adopted 3/1/01)

   Sec. 3.202     Adoption

The city has adopted the National Electrical Code, 2005 edition, governing the development of properties within the city and the city's extraterritorial jurisdiction. (Ordinance 2006-010, sec. 1, adopted 8/24/06)

   Sec. 3.203     Building Official

The office of building official is hereby established by the city. The building official shall have the duties of conducting all inspections for the construction of buildings, structures, and refurbishing and remodeling of same, to insure that said buildings and structures comply with the ordinances of the city. If the building inspector determines that the electrical code adopted by the city has been violated, and if, after reasonable notice, the violation has not been corrected, then the building inspector will instruct the code enforcement officer to issue a citation for the violation by the city based on the violation and cause same to be prosecuted in the municipal court of the city. (Ordinance 2001-05 adopted 3/1/01)

   ARTICLE 3.300 PLUMBING CODE*

   Sec. 3.301     Title

This article shall be known as the “plumbing code.” (Ordinance 2001-06 adopted 3/1/01)

   Sec. 3.302     Adoption

The city has adopted the International Plumbing Code, 2003 edition, governing the development of properties within the city and the city's extraterritorial jurisdiction. (Ordinance 2006-010, sec. 1, adopted 8/24/06)

   Sec. 3.303     Building Official

The office of building official is hereby established by the city. The building official shall have the duties of conducting all inspections for the construction of buildings, structures and refurbishing and remodeling of same, to insure that said buildings and structures comply with the ordinances of the city. If the building inspector determines that the plumbing code adopted by the city has been violated, and if after reasonable notice the violation has not been corrected, then the building inspector will instruct the code enforcement officer to issue a citation for the violation by the city based on the violation and cause same to be prosecuted in the municipal court of the city. (Ordinance 2001-06 adopted 3/1/01)

   ARTICLE 3.400 ONE- AND TWO-FAMILY DWELLING CODE

   Sec. 3.401     Title

This article shall be known as the “one- and two-family dwelling code.” (Ordinance 2001-07 adopted 3/1/01)

   Sec. 3.402     Adoption

The city has adopted the International One- and Two-Family Dwelling Code, 2000 edition, governing the development of properties within the city and the city's extraterritorial jurisdiction. (Ordinance 2006-010, sec. 1, adopted 8/24/06)

   Sec. 3.403     Building Official

The office of building official is hereby established by the city. The building official shall have the duties of conducting all inspections for the construction of buildings, structures and refurbishing and remodeling of same, to insure that said buildings and structures comply with the ordinances of the city. If the building inspector determines that the one and two family dwelling code adopted by the city has been violated, and if after reasonable notice the violation has not been corrected, then the building inspector will instruct the code enforcement officer to issue a citation for the violation by the city based on the violation and cause same to be prosecuted in the municipal court of the city. (Ordinance 2001-07 adopted 3/1/01)

   ARTICLE 3.500 MECHANICAL CODE

   Sec. 3.501     Title

This article shall be known as the “mechanical code.” (Ordinance 2001-08 adopted 3/1/01)

   Sec. 3.502     Adoption

The city has adopted the International Mechanical Code, 2003 edition, governing the development of properties within the city and the city's extraterritorial jurisdiction. (Ordinance 2006-010, sec. 1, adopted 8/24/06)

   Sec. 3.503     Building Official

The office of building official is hereby established by the city. The building official shall have the duties of conducting all inspections for the construction of buildings, structures and refurbishing and remodeling of same, to insure that said buildings and structures comply with the ordinances of the city. If the building inspector determines that the mechanical code adopted by the city has been violated, and if after reasonable notice the violation has not been corrected, then the building inspector will instruct the code enforcement officer to issue a citation for the violation by the city based on the violation and cause same to be prosecuted in the municipal court of the city. (Ordinance 2001-08 adopted 3/1/01)

   ARTICLE 3.600 BUILDING PERMITS

   Sec. 3.601     Definitions

In this article:

Building Inspector. Person who is recognized by the state and holds a current certification as a building official, plan examiner, building inspector, mechanical inspector, electrical inspector and plumbing inspector license.

   Sec. 3.602     Authorization

Authorization. Approving permits for construction by the city.

   Sec. 3.603     Application

(a)     Submit application for building permit with (2) complete sets of building plans, specification, electrical, foundation, copy of survey and site plan and a copy of the letter of approval from the planning and zoning committee and/or council if variance is requested.

(b)     After the building inspector approves the plans, the city must have on file the following:

(Ordinance 2001-11 adopted 6/12/01)

(1)     OSSF design from a registered sanitarian with the state. (Ordinance 2017-012, sec. 2, adopted 12/7/17)

(2)     Application for on-site sewerage facility. (Ordinance 2001-11 adopted 6/12/0)

(3)     All contractors shall be registered in accordance with article 3.800, section 3.806, of Chapter 3, Building Regulations, and Appendix A, Fee Schedule.

(4)     A portable toilet must be on site for all new construction.

(c)     Processing time allowed is 7 to 10 days.

(Ordinance 2017-012, secs. 2–3, adopted 12/7/17)

(d)     Post building permit on T-Pole so as to be visible from the street (preferably in a plastic bag so the weather does not damage). (Ordinance 2001-11 adopted 6/12/01)

(e)     An inspection sheet is provided showing various phases at which inspections are required. Inspections are requested by e-mail or phone through an independent contractor. Contact information is provided with the documents in the permit package. Inspections shall be requested 24 hours in advance. (Ordinance 2017-012, sec. 4, adopted 12/7/17).

   ARTICLE 3.700 INSPECTIONS*

   Sec. 3.701     Inspection Guidelines; Generally

(a)     Before any inspections are made there must be a street address shown that will readily identify and locate the proposed building or work being done. There must also be an address on the temporary pole.

(b)     A surveyed plot plan showing forms in place must be on file with the office before any inspections will be made.

(Ordinance 96-05 adopted 10/3/96)

(c)     Inspections are requested by e-mail or phone through an independent contractor. Contact information is provided with the documents in the permit package. Inspections shall be requested 24 hours in advance.

(d)     When requesting inspections, please include the following:

(1)     Permit number;

(2)     Address; and

(3)     Type of inspection being requested.

(e)     Inspection results will be placed in the pouch with the permit. Duplicate copies of inspection results may be obtained through the building official or through their inspection line.

(f)     Utility meters will be released to the appropriate utility company during normal business hours on the same day that the passing inspection is received.

(Ordinance 2017-012, sec. 6, adopted 12/7/17)

   Sec. 3.702     Penalty

Any person who violates any provision of this article shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine in accordance with the general penalty provision in Section 1.109 of this code. Each day such violation shall continue or be permitted shall be treated as a separate offense. (Ordinance 96-05 adopted 10/3/96)

   ARTICLE 3.800 CONSTRUCTION REQUIREMENTS

   Sec. 3.801     Water Lines/Meters

(a)     All water lines in buildings or structures in the city shall be type “K” copper tubing.

(b)     Water lines shall not touch any steel and where exposed shall be wrapped.

(Ordinance 79-21 adopted 06/19/79)

(c)     Water meter box must be exposed and set to grade before water department will install water meter.  (Ordinance 96-05 adopted 10/3/96)

   Sec. 3.802     Slab Foundations

(a)     Slab foundations in buildings or structures in the city shall possess the minimum specifications set out in Exhibit “A.” 

(b)     Certification of the building inspector that the foundation meets the minimum requirements of this article shall be required before any slab foundation in the city may be poured.

(Ordinance 79-21 adopted 06/19/79)

   Sec. 3.803     On-Site Waste Disposal

There shall be on each jobsite a receptacle or bin for trash. Builder shall be responsible for assuring that all paper and trash is confined to jobsite and not blown throughout neighborhood. All trash, scrap and excess building materials shall be promptly removed and disposed of off-site at the completion of each phase of construction, and/or when receptacle is full. (Ordinance 2017-012, sec. 7, adopted 12/7/17)

   Sec. 3.804     Reserved

Editor's note–Former section 3.804 pertaining to early gas release guidelines, was repealed and deleted in its entirety by Ord. 2017-012, sec. 8, adopted 12/7/17.

   Sec. 3.805     Lot and Structure Specifications

(a)     Definitions.

(1)     Accessory Buildings. Any building customarily incidental to the principal building, including among other things, a garage for parking of vehicles, storage shed, greenhouse, pool cabana or tool storage shed and similar such structures not used for any commercial purposes. (Ordinance 2017-012, sec. 9, adopted 1/7/17)

(2)     House. A structure utilized for residential purposes. (Ordinance 2001-09)

(b)     Construction of Houses, Outbuildings and Accessory Buildings. Refer to Chapter 14, Zoning, including, but not limited to, Article 4 – Zoning Districts, Article 5 – Special Districts, and Article 6 – Supplemental District Regulations. (Ordinance 2017-012, sec. 9, adopted 1/7/17)

(c)     Prohibition. The relocation of any existing building or structure onto a lot to remodel or convert same into a dwelling unit is prohibited.  Construction of new structures only shall be permitted.

(d)     Savings.     All rights and remedies of the city are expressly saved as to any and all violations of the provisions of any other ordinances of the city affecting buildings which have secured at the time of the effective date of this article; and as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances same shall not be affected by this article but may be prosecuted until final disposition by the courts.

(e)     Penalty.     Any person violating any of the provisions of this article shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined, except as otherwise provided herein, in a sum in accordance with the general penalty provision in Section 1.109 of this code, and a separate offense shall be deemed committed upon each day during or on which a violation occurs or continues.

(Ordinance 2001-09)

   Sec. 3.806     Subcontractors

(a)     Registration. No person shall engage in the business of contracting to furnish labor and materials for the demolition, erection, construction or repair of buildings or accessory structures, fences, pools, spas, signs, including electrical, mechanical, plumbing, irrigation, water well drilling, and/or private wastewater system work, for which a building permit is required, without first registering with the city.

(1)     No permit to perform work in the city shall be issued to any person, firm, corporation or business entity without prior registration; provided, however, property owners performing work on their homesteaded primary place of residence shall be exempt from the registration requirements.

(2)     In extending the rights and privileges of such registration, the city makes no statement of the technical competency of those so registered and no manner of license if proffered.

(b)     Application. An applicant for registration under this article shall provide to the office of the city secretary the following information:

(1)     The complete name, mailing address, and telephone number of the person, firm, corporation or entity making application; if the applicant is a firm, corporation or business entity, there must be provided the name and private mailing address of a principal of the firm, corporation or business entity who is authorized to bind the firm, corporation or business entity in legal agreements. Each applicant must also provide the names of all employees authorized to obtain permits.

(2)     For providers of plumbing, electrical, mechanical, irrigation, water well drilling, and/or private wastewater system work, the registrant must possess a valid license issued by the appropriate state board or agency with the authority to issue licenses for that particular trade.

(3)     All registrants, including those listed above, must possess a valid driver's license.

(4)     Proof of general liability insurance.

(5)     Any other information deemed necessary by the city secretary.

(c)     Transfer of Registration Prohibited. No registrant under this article shall for any purpose, allow its registration, by name or any other identification, to be transferred, assigned to, or in any manner directly or indirectly used by any person, firm, corporation or business entity other than the one to whom the registration was issued.

(d)     Requirements to Update Information. If a change occurs in the information previously provided by registrant under the provisions of paragraph (b) of this article, then registrant shall provide written notice of the updated information to the city secretary within thirty (30) days of the change.

(e)     Registration Fee and Renewal. Each contractor or provider who shall apply for such registration shall pay a yearly fee as provided for in the fee schedule located in appendix A.

(1)     Registration shall expire annually on the date of the initial registration.

(2)     The fee for renewal shall be in accordance with the fee schedule at the time of renewal.

(3)     No permits will be issued to a contractor whose registration has expired.

(f)     Revocation of Registration. A registrant's privileges under this article may be revoked, temporarily or permanently, for providing false or misleading information; failure to provide updated information within thirty (30) days of such change; failure to maintain trade licensure from the appropriate agency having licensing authority; suspension of licensure; transferring or allowing another person, firm, or corporation to use registration; failure to maintain certificate of liability insurance; conviction of two violations to this article or any ordinance of the city within a twelve-month period; for any conviction of illegal dumping; or if the city council finds the contractor is unqualified for reasons including, but not limited to, moral integrity, skills and/or professionalism.

(Ordinance 2017-012, sec. 10, adopted 12/7/17)

   Sec. 3.807     Certificate of Occupancy

In accordance with chapter 1, section 110 of the International Building Code, no building or structure shall be used or occupied, and no change in the existing occupancy classification of a building or structure or portion thereof shall be made until the building official has been issued a certificate of occupancy.

(1)     An application for CO may obtained from the office of the city secretary.

(2)     Fees are in accordance with the fee schedule located in appendix A.

(Ordinance 2018-004, sec. 2, adopted 3/22/18)

   Sec. 3.808     Penalty

Any person who violates any provision of this article shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished by a fine in accordance with the general penalty found in Section 1.109 of this code. Each day such violation shall continue or be permitted, shall be treated as a separate offense.  (Ordinance 96-05 adopted 10/3/96)

   ARTICLE 3.900 NUMBERING OF BUILDINGS

   Sec. 3.901     Requirements and Specifications of Numbers

(a)     The city does hereby require that all buildings and structures in the city be numbered in accordance with the provisions of this article, and the city council hereby authorizes the building official to enforce the provisions of this article.

(b)     The official numbers or letters required by this section shall be plainly legible and visible from the street or road fronting the property. These numbers shall contrast with their background and shall be constructed of or include reflective material. Address numbers shall be Arabic numerals or alphabet letters. Numbers shall be a minimum of 3 inches (102 mm) high with a minimum stroke width of 0.5 inch (12.7 mm). Numbers shall be placed in the proximity of the front door of the building and on both sides of the mailbox. Numbers shall be fastened to the building with nails or screws in a manner approved by the building official. The building official may require the placement of numbers other than specified above when deemed appropriate due to unusual circumstances.

(Ordinance 2013-001 adopted 1/8/13)

   Sec. 3.902     Duty to Affix Numbers

(a)     It shall be the duty of each owner, agent of the owner or the occupant of any building or structure presently located in the city to affix numbers in compliance with the requirements of this article within thirty (30) days of written notification by the building official of numbering requirements.

(b)     It shall be the duty of the building permit applicant of any building or structure currently under construction or any building or structure permitted after the passage of this article to affix numbers in compliance with the requirements of this article.

   Sec. 3.903     Penalty

It shall be unlawful for any person, organization, association or corporation to violation of the provisions of this article shall upon conviction be guilty of a class “C” misdemeanor and be subject to a fine in accordance with the general penalty provision found in Section 1.109 of this code. Each and every day the violation continues constitutes a separate and distinct offense and is punishable as such.

(Ordinance 98-07 adopted 11/6/97)

   ARTICLE 3.1000 ROAD CONSTRUCTION*

All streets within the city shall be surfaced in accordance with the following specifications which are set forth in exhibit “A,” attached hereto and fully incorporated herein:

(1)     Roads within the city shall have a minimum two (2) inch hot mix asphaltic concrete surface course.

(2)     Roads within the city shall have a minimum six (6) inch flexbase subgrade compacted to 95% standard proctor density.

(3)     Roads within the city shall have a maximum slope of a 4:1 ratio.

(Ordinance 2000-04 adopted 11/4/99)

   ARTICLE 3.1100 STANDARDS FOR RIGHT-OF-WAY AND EASEMENTS USAGE

   Sec. 3.1101     General

No person shall commence or continue with the construction, installation, or operation of facilities with rights-of-way and publicly dedicated easements in the city except as provided by the ordinances of the city. All construction activity in city rights-of-way and easements will be in accordance with this article.

   Sec. 3.1102     Registration and Construction Permits

(a)     Registration. In order to protect the public health, safety, and welfare, all users of the city rights-of-way and easements will register with the city. Registration and permits will be issued in the name of the person who will own the facilities. Registration must be renewed every year. For utilities with the current franchise or license, the franchise or license will be evidence of renewal. If a registration is not renewed and subject to (60) days notification to the owner, the facilities of the user will be deemed to have been abandoned. When any information provided for the registration changes, the user will inform the city of the change no more than (30) days after the date the change is made. Registration shall include:

(1)     The name of the user of the right-of-way:

(2)     The name, address, and telephone numbers of people who will be contact person(s) for the user.

(3)     The name(s) and telephone numbers of an emergency contact who shall be available twenty-four hours a day.

(b)     Construction Permits.

(1)     Permit applications are required for construction or installation of new, replacement or upgraded facilities in right-of-ways and easements, whether aerial or underground, except as provided herein. The permit will be in the name of the person who will own the facilities to be constructed. The permit must be completed and signed by the representative of the owner of the facilities to be constructed.

(A)     Emergency responses related to existing facilities may be undertaken without first obtaining a permit; however the city should be notified in writing two (2) business days of any construction related to an emergency response; including a reasonably detailed description of the work performed in the right-of-way and an updated map of any facilities that were relocated if applicable.

(B)      The phrase “construction of installation of new, replacement or upgraded facilities” does not include repair or maintenance of existing facilities unless such repair or maintenance requires the following; the breaking of pavement necessary to initiate service to a customer's property excavation or boring.

(2)     The permit shall state to whom it is issued, location of work, location of facilities dates and times work is to take place and any other conditions set out by the City of Krugerville to the designee.

(3)     The person requesting a permit will provide the city official(s) with the documents describing:

(A)     Approximate location and route of all facilities to be constructed or installed and the applicant's plan for right-of-way construction.

(B)     Engineering plans which will be on a scale of (1) inch equals to (50) feet unless otherwise approved the city officials or city secretary.

(C)     Detail of the location of all right-of-way and utility easements which applicant plans to use.

(D)      Detail of all existing city utilities in relationship to applicant's proposed route.

(E)      Detail of what applicant proposes to install, such as number of interducts, valves, etc.

(F)     Detail of plans to remove and replace asphalt or concrete in streets (including standard construction details for pavement patching Type A and/or B0.)

(G)     Drawings of any bores, trenches, handholes, manholes, switch gear, transformers, pedestals, etc., including depth.

(H)     Three (3) sets of engineering plans must be submitted with the permit application.

(I)     The name, address and phone numbers of the contractor or subcontractor who will perform the actual construction, including the name and telephone number of an individual with the contractor who will be available at all times during construction. Such information, if known, shall be required prior to the commencement of any work.

(J)     The construction and installation methods to be employed for the protection of the existing structures, fixtures, and facilities within or adjacent to the right-of-way and the dates and times work will occur, all of which methods, dates, times, etc. are subject to approval of the city official.

(K)     A statement that the requirements are met. All construction and installation in the right-of-ways easements shall be in accordance with the permit for the facilities. The city official(s) shall be provided access to the work and to such further information as he or she may reasonably require to ensure compliance with the permit.

(L)     A copy of the construction permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the city official(s) at all times when construction or installation work is occurring.

(4)     All construction or installation work authorized by permit must be completed in the time specified in the construction permit.

(5)     A copy of any permit or approval issued by federal or state authorities for work in federal or state right-of-way located in the City of Krugerville shall be provided, if requested by the city official(s).

(6)     A request for a permit must be submitted at least (7) days before the proposed commencement of work in the request, unless waived by the mayor, or mayor pro tem or city secretary with a written approval from the mayor, or mayor pro tem.

(7)     Requests for permits will be approved or disapproved by the City of Krugerville or his/her designee within a reasonable time of receiving all the information. The mayor or mayor pro-tem will use his/her best efforts to approve or disapprove a request for permit as soon as possible.

(8)     The city officials or the applicant can request a pre-construction meeting with the permittee and their construction contractor.

   Sec. 3.1103     Construction Standards

(a)     All construction shall be in conformance with all city codes and standard details for construction and all applicable local, state and federal laws. Backfilling shall be with subgrade materials and compacted to with ten (10) inches of surface grade.

(b)     Backfilling with crushed “Flex Base” rock three-fourth (3/4) or smaller and compacted to within four inches (4) of surface grade.

(c)     Paving to grade with compacted hot mix type “D” asphalt concrete.

(d)     Do not replace any mud or wet soil in excavation.

(e)     Erosion control measures (e.g. silt fence) and advance warning signs, markers, cones and barricade must be in place before work begins, if applicable.

(f)     Lane closures on major thoroughfares any occur only between 8:30 a.m. and 4:00 p.m. unless the city grants prior approval. Barricades and signs shall be installed in accordance with the Texas Manual of Uniform Traffic Control Devices.

(g)     Permittees are responsible for the workmanship and any damages by its contractor or subcontractors. Permittees are responsible for maintaining job site and roadway cleanliness. A responsible representative of the permittee will be available to the City of Krugerville at all times during construction.

(h)     Permittee shall comply with city, state and federal guidelines applicable to permittee.

(i)     Permittee, contractor or subcontractor will notify the City of Krugerville immediately of any damages to other utilities, either city or privately owned.

(j)     It is the city's policy not to cut streets or sidewalks; however, when a street or sidewalk cut is required, prior approval must be obtained from the city and all requirements of the city shall be followed. Repair of all street and sidewalk removals must be promptly to avoid safety hazards to vehicles and pedestrian traffic.

(k)     Excess dirt and material must be removed.

(l)     Repairs shall be completed with (10) days of issuance of permit.

(m)     New facilities, including new service drops, shall be placed underground absent a reasonable demonstration by the facility owner, developer, or affected owner that this requirement is not technically, environmentally or economically feasible. Aboveground appurtenances and equipment and, if permitted, aboveground facilities shall be placed along rear lot or tract lines unless the city approves an exception, which approval will not be unreasonably withheld. city will work diligently with facility owner, developer and affected property owners during the zoning and platting processes if new subdivisions to ensure reasonable equipment access to facilities along rear lot or tract lines where available. The necessity for removal of minimal fencing and/or landscaping within easements to permit the replacement of facilities, appurtenances and equipment is considered to be within the definition of reasonable access. Where no such access can be made available, facility owner and developer shall make reasonable efforts to place above ground facilities, appurtenances and equipment in the least visible areas of the street right-of-ways and street yard that are consistent with reasonable city standards. Sight visibility easements and horizontal clear triangles are not appropriate for the placement of above ground facilities, appurtenances and equipment as they would create safety concerns by blocking or impairing the visibility of vehicular traffic.

(n)     Permittee will be responsible for verifying the location both horizontal and vertical of all facilities, whether by pot holing, hand digging, or other method approved by the city. Handholes or manholes will not be located in sidewalks, unless approved by the city.

(o)     Locate flags shall not be removed from a location while facilities are being constructed.

(p)     Construction that requires pumping of water or mud shall be contained in accordance with federal and state law.

(q)     Permittee may trim trees in or over the rights-of-ways and easement for safe and reliable operation, use and maintenance of its facilities. All trimming in rights-of-ways and easement shall be in accordance with guidelines established by the National Arborist Association and International Society of Arboriculture, and should be done in such a manner to preserve as much vegetation and natural shape of trees as reasonably possible, and still accomplish a safe and effective tree trimming program. Reasonable efforts shall be made to contact affected property owners prior to necessary tree trimming operation. Should utility provider or entity, its contractor or agent, fail to remove tree trimmings within 24 hours after completion of a trimming project, unless a longer period is required for extraordinary conditions and conditions beyond the control of provider, the city may remove the trimmings or have them removed and upon the receipt of a bill from the city, the utility provider or entity shall reimburse the city for all costs incurred within 30 working days. Utility provider or entity shall not be responsible for tree trimming or removal above the work required maintaining or restoring service.

   Sec. 3.1104     Conformance With Public Improvements

Whenever, by reasons of widening or straightening of streets, water or sewer lines projects, or any other public works projects, (e.g. install or improve storm drains, waterlines, sewer lines, etc.) it shall be deemed necessary by the governing body of the city to remove, alter, change, adapt, or conform the underground or overhead facilities at their expense, unless provided for by state law or an existing franchise until that franchise expires or is otherwise terminated, within the time limits set by the city working in conjunction with the owner or, if no time frame can be approved within one hundred twenty (120) days from the day the notice was sent to make the alternations, unless a different schedule has been approved by the city. Facilities not moved after one hundred twenty (120) days or within the approved schedule, as it may be extended from time to time shall be deemed abandoned after one hundred thirty (130) days notice.

   Sec. 3.1105     Improper Installed Facilities

(a)     Any person doing work in the city right-of-way shall properly install, repair, upgrade and maintain facilities.

(b)     Facilities installed after the effective date of this article shall be considered to be improperly installed, repaired, upgraded or maintained if:

(1)     the installation, repairs, upgrade, or maintenance endangers people;

(2)     the facilities do not meet the applicable city codes;

(3)     the facilities are not capable of being located using standard practices;

(4)     the facilities are not located in the proper place at the time of construction in accordance with the directives provided by the city.

   Sec. 3.1106     Restoration of Property

(a)     Users of the right-of-way shall restore property affected by construction of facilities to a condition that is equal to or better than the condition of the property prior to the performance of the work.

(b)     Restoration must be to the reasonable satisfaction of the city and the property owner. The restoration shall include, but not be limited to:

(1)     Replacing all ground cover with the type of ground cover damaged during work or better either by sodden or seeding as directed by the city.

(2)     Backfilling all bore pits, potholes, trenches or any other holes shall be filled in daily, unless other state or federal safety requirements are followed.

(3)     Installation of all manholes and handholes, as required.

(4)     Leveling of all trenches and backhoe lines.

(5)     Restoration of excavation site to city specification; and

(6)     Restoration of all landscaping, ground cover and sprinkler systems.

(c)     All location flags and information signs shall be removed during the cleanup process by the permittee or his/her contractor at the completion of the work.

(d)     Restoration must be made in a timely manner as specified by approved public works to the satisfaction of the city. If restoration is not satisfactory and performed in a timely manner all work in progress, except that related to the problem, including all work previously permitted but not completed may be halted and a hold may be placed on any permit not approved until all restoration is complete.

   Sec. 3.1107     Revocation or Denial or Permit

If any of the provisions of this article are not followed, the city may revoke a permit. If a person has not followed the terms and conditions of this article in work done pursuant to a prior permit, new permits may be denied or additional term required.

   Sec. 3.1108     Appeal From Denial or Revocation of Permit

Appeal from denial or revocation of permit or from the decision of the city shall be to the city council. Appeal shall be filed with the city secretary within (15) days.

   Sec. 3.1109     Penalty

Any person who violates any provision of this article shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine in accordance with the general penalty provision found in Section 1.109 of this code. Each day that a violation continues or is permitted shall be treated as a separate offense. For the violation of a rule, article, or police regulation that governs fire salty, zoning, or public health and sanitation, including dumping or refuse, the fine or penalty will be in accordance with the general penalty provision found in Section 1.109 of this code, with the judge setting the actual punishment.

(Ordinance 2000-05 adopted ----)

   ARTICLE 3.1200 FLOOD DAMAGE PREVENTION*

   Sec. 3.1201     Findings of Fact

(a)     The flood hazard areas of City of Krugerville are subject to periodic inundation which results in lost of life and property, health and safety hazards, disruption of commerce and governmental services, and extraordinary public expenditures for flood protection and relief, all of which adversely affect the public health, safety and general welfare.

(b)     These flood losses are created, by the cumulative effect of obstructions in floodplains which cause an increase in flood heights and velocities, and by the occupancy of flood hazards areas by uses vulnerable to floods and hazardous to other lands because they are inadequately elevated, floodproofed or otherwise protected from flood damage.

   Sec. 3.1202     Statement of Purpose

(a)     It is the purpose of this article to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas by provisions designed to:

(1)     Protect human life and heath;

(2)     Minimize expenditure of public money for costly flood control projects;

(3)     Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

(4)     Minimize prolonged business interruptions;

(5)     Minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in floodplains;

(6)     Help maintain a stable tax base by providing for the sound use and development of flood-prone areas in such a manner as to minimize future flood blight areas; and

(7)     Insure that potential buyers are notified that property is in a flood area.

   Sec. 3.1203     Methods of Reducing Flood Losses

In order to accomplish its purposes, this article uses the following methods:

(1)     Restrict or prohibit uses that are dangerous to health, safety or property in times of flood, or cause excessive increases in flood heights or velocities;

(2)     Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;

(3)     Control the alteration of natural floodplains, stream channels and natural protective barriers, which are involved in the accommodation of flood waters;

(4)     Control filling, grading, dredging and other development which may increase flood damage;

(5)     Prevent or regulate the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards to other lands.

   Sec. 3.1204     Definitions

Unless specifically defined below, words or phrases used in this article shall be interpreted to give them the meaning they have in common usage and to give this article its most reasonable application.

Alluvial Fan Flooding. Means flooding occurring on the surface of an alluvial fan or similar landform which originates at the apex and is characterized by high-velocity flows; active processes of erosion, sediment transport and deposition and unpredictable flow paths.

Apex.  Means a point on an alluvial fan or similar landform below which the flow path of the major stream that formed the fan becomes unpredictable and alluvial fan flooding can occur.

Area of Shallow Flooding.  Means a designated AO, AH, or VO Zone on a community's Flood Insurance Rate Map (FIRM) with a one percent chance or greater annual chance of flooding to an average depth of one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.

Area of Special Flood Hazard. Is the land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year. The area may be designated as Zone A on the Flood Hazard Boundary Map (FHBM). After detailed ratemaking has been completed in preparation for publication of the FIRM, Zone A usually is refined into Zones A, AE, AH, AO, A1-99, VO, V1-30, VE or V.

Base Flood. Means the flood having a one percent chance of being equaled or exceeded in any given year.

Basement. Means any area of the building having its floor subgrade (below ground level) on all sides.

Critical Feature. Means an integral and readily identifiable part of a flood protection system, without which the flood protection provided by the entire system would be compromised.

Development. Means any man-made change in improved and unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

Elevated Building. Means a non-basement building:

(1)      built, in the case of a building in Zones A1-30, AE, A, A99, AO, AH, H, C, X, and D, to have the top of the elevated floor, or in the case of a building in Zones V1-30, VE, or V, to have the bottom of the lowest horizontal structure member of the elevated floor elevated above the ground level by means of pilings, columns (posts and piers), or shear walls parallel to the floor of the water; and

(2)      adequately anchored so as not to impair the structural integrity of the building during a flood of up to the magnitude of the base flood. In the case of Zones A1-30, AE, A, A99, AO, AH, H, C, X, and D, “elevated building” also includes a building elevated by means of fill or solid foundation perimeter walls with openings sufficient to facilitate the unimpeded movement of flood waters.

In the case of Zones V1-30, VE, or V, “elevated building” also includes a building otherwise meeting the definition of “elevated building,” even though the lower area is enclosed by means of breakaway walls if the breakaway walls met the standards of Section 60.3 (e) (5) of the National Flood Insurance Program regulations.

Existing Construction. Means for the purposes of determining rates, structures for which the “start of construction” commenced before the effective date of the FIRM or before January 1, 1975, for FIRMs effective before that date. “Existing construction” may also be referred to as “existing structures.”

Existing Manufactured Home Park or Subdivision. Means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, to installation of utilities, the construction of streets and either final site grading or the pouring of concrete pads) is completed before the effective date of the floodplain management regulations adopted by a community.

Expansion to an Existing Manufactured Home Park or Subdivision. Means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).

Flood or Flooding. Means a general and temporary condition of partial or complete inundation of normally dry land areas from:

(1)     The overflow of inland or tidal waters.

(2)     The unusual and rapid accumulation or runoff of surface waters from any source.

Flood Hazard Boundary Map (FHBM).  Means an official map of a community, issued by the administrator, where the boundaries of the flood, mudslide (i.e., mudflow) related erosion areas having special hazards have been designated as Zones A, M and/or E.

Flood Insurance Rate Map (FIRM). Means an official map of a community, on which the Federal Emergency Management Agency has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.

Flood Insurance Study. Is the official report provided by the Federal Emergency Management Agency. The report contains flood profiles, water surface elevation of the base flood, as well as the Flood Boundary-Floodway Map.

Floodplain or Flood-Prone Area. Means any land area susceptible to being inundated by water from any source (see definition of flooding).

Floodplain Management. Means the operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations.

Floodplain Management Regulations. Means zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a floodplain article, grading article and erosion control article) and other applications of police power. The term describes such state or local regulations, in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction.

Flood Protection System. Means those physical structural works for which funds have been authorized, appropriated, and expended and which have been constructed specifically to modify flooding in order to reduce the extent of the areas within a community subject to a “special flood hazard” and the extent of the depths of associated flooding. Such a system typically includes hurricane tidal barriers, dams, reservoirs, levees or dikes. These specialized flood modifying works are those constructed in conformance with sound engineering standards.

Flood Proofing. Means any combination of structural and non-structural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.

Floodway (Regulatory Floodway). Means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height.

Functionally Dependent Use. Means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long term storage or related manufacturing facilities.

Highest Adjacent Grade. Means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

Historic Structure.  Means any structure that is:

(1)     Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

(2)     Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the secretary to qualify as a registered historic district;

(3)     Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or

(4)     Individually listed on a local inventory or historic places in communities with historic preservation programs that have been certified either:

(A)     By an approved state program as determined by the Secretary of the Interior; or

(B)     Directly by the Secretary of the Interior in states without approved programs.

Levee. Means a man-made structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control, or divert the flow of water so as to provide protection from temporary flooding.

Levee System. Means a flood protection system which consists of a levee, or levees and associated structures, such as closure and drainage devices, which are constructed and operated in accordance with sound engineering practices.

Lowest Floor. Means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking or vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirement of Section 60.3 of the National Flood insurance Program regulations.

Manufactured Home. Means a structure transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term “manufactured home” does not include a “recreational vehicle.”

Manufactured Home Park or Subdivision.  Means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.

Mean Sea Level. Means, for purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929 or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced.

New Construction. Means, for the purpose of determining insurance rates, structures for which the “start of construction” commenced on or after the effective date of an initial FIRM or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures. For floodplain management purposes, “new construction” means structures for which the “start of construction” commenced on or after the effective date of a floodplain management regulation adopted by a community and includes any subsequent improvements to such structures.

New Manufactured Home Park or Subdivision. Means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of floodplain management regulations adopted by a community.

Recreational Vehicle. Means a vehicle which is:

(1)      built on a single chassis;

(2)      400 square feet or less when measured at the largest horizontal projections;

(3)      designed to be self-propelled or permanently towable by a light duty truck; and

(4)      designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel or seasonal use.

Start of Construction. (for other than new construction or substantial improvements under the Coastal Harrier Resources Act (Pub. L. 97-348)), includes substantial improvement and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for basement, footings, piers or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

Structure. Means a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home.

Substantial Damage. Means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.

Substantial Improvement. Means any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before “start of construction” of the improvement. This includes structures which have incurred “substantial damage,” regardless of the actual repair work performed. The term does not, however, include either:

(1)      Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary conditions; or

(2)      Any alteration of a “historic structure,” provided that the alteration will not preclude the structure's continued designation as a “historic structure.”

Variance. Is a grant of relief to a person from the requirement of this article when specific enforcement would result in unnecessary hardship. A variance, therefore, permits construction or development in a manner otherwise prohibited by this article. For full requirements see Section 60.6 of the National Flood Insurance Program regulations.

Violation. Means the failure of a structure or other development to be fully compliant with the community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in Section 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5) is presumed to be in violation until such time as that documentation is provided.

Water Surface Elevation. Means the height, in relation to the National Geodetic Vertical Datum (NGVD) of 1929 (or other datum, where specified), of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas.

   Sec. 3.1205     Lands to Which This Article Applies

The article shall apply to all areas of special flood hazard within the jurisdiction of Krugerville.

   Sec. 3.1206     Basis for Establishing the Areas of Special Flood Hazard

Since areas of special flood hazard have not been identified, water surface elevations have not been provided, nor has sufficient data identifying the floodway or coastal high hazard area been provided by the Federal Emergency Management Agency (FEMA), the community shall obtain, review, and reasonably utilize data available from other federal, state or other sources.

   Sec. 3.1207     Establishment of Development Permit

A development permit shall be required to ensure conformance with the provisions of this article.

   Sec. 3.1208     Compliance

No structure or land shall hereafter be located, altered, or have its use changed without full compliance with the terms of this article and other applicable regulations.

   Sec. 3.1209     Abrogation and Greater Restrictions

This article is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this article and another article, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

   Sec. 3.1210     Interpretation

In the interpretation and application of this article, all provisions shall be:

(1)      considered as minimum requirements;

(2)      liberally construed in favor of the governing body; and

(3)      deemed neither to limit nor repeal any other powers granted under state statutes.

   Sec. 3.1211     Warning and Disclaimer or Liability

The degree of flood protection required by this article is considered reasonable for regulatory purposes, and is based on scientific and engineering considerations. On rare occasions greater floods can and will occur and flood heights may be increased by man-made or natural causes. This article does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This article shall not create liability on the part of the community or any official or employee thereof for any flood damages that result from reliance on this article or any administrative decision lawfully made thereunder.

   Sec. 3.1212     Designation of the Floodplain Administrator

The mayor is hereby appointed the floodplain administrator to administer and implement the provisions of this article and other appropriate sections of 44 CFR (National Flood Insurance Program Regulations) pertaining to floodplain management.

   Sec. 3.1213     Duties and Responsibilities of the Floodplain Administrator

Duties and responsibilities of the floodplain administrator shall include, but not be limited to, the following:

(1)     Maintain and hold open for public inspection all records pertaining to the provisions of this article.

(2)     Review permit application to determine whether proposed construction or other development, including the placement of manufactured homes, will be reasonably safe from flooding.

(3)     Review, approve or deny all applications for development permits required by adoption of this article.

(4)     Review permits for proposed development to assure that all necessary permits have been obtained from those federal, state or local governmental agencies (including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334) from which prior approval is required.

(5)     Where interpretation is needed as to the exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions) the floodplain administrator shall make the necessary interpretation.

   Sec. 3.1214     Permit Procedures

(a)     Application for a development permit shall be presented to the floodplain administrator on forms furnished by him/her and may include, but not be limited to, plans in duplicate drawn to scale showing the location, dimensions, and elevation of proposed landscape alterations, existing and proposed structures, including the placement of manufactured homes, and the location of the foregoing in relation to areas of special flood hazard. Additionally, the following information is required:

(1)     Elevation (in relation to mean sea level), of the lowest floor (including basement) of all new and substantially improved structures;

(2)     Elevation in relation to mean sea level to which any nonresidential structure shall be floodproofed;

(3)     A certificate from a registered professional engineer or architect that the nonresidential floodproofed structure shall meet the floodproofing criteria of Section 3.1217(b);

(4)     Description of the extent to which any watercourse or natural drainage will be altered or relocated as a result of proposed development; and

(5)     Maintain a record of all such information in accordance with Section 3.1213(1).

(b)     Approval or denial of a development permit by the floodplain administrator shall be based on all of the provisions of this article and the following relevant factors:

(1)     The danger to life and property due to flooding or erosion damage;

(2)     The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

(3)     The danger that materials may be swept onto other lands to the injury of others;

(4)     The compatibility of the proposed use with existing and anticipated development;

(5)     The safety of access to the property in times of flood for ordinary and emergency vehicles;

(6)     The costs of providing governmental services during and after flood conditions including maintenance and repair of streets and bridges, and public utilities and facilities such as sewer, gas, electrical and water systems;

(7)     The expected heights, velocity, duration, rate of rise and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site;

(8)     The necessity to the facility of a waterfront location, where applicable;

(9)     The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;

(10)     The relationship of the proposed use to the comprehensive plan for that area.

    Sec. 3.1215     Variance Procedures

(a)     The appeal board as established by the community shall hear and render judgment on requests for variances from the requirements of this article.

(b)     The appeal board shall hear and render judgment on an appeal only when it is alleged there is an error in any requirement, decision, or determination made by the floodplain administrator in the enforcement or administration of this article.

(c)     Any person or persons aggrieved by the decision of the appeal board may appeal such decision in the courts of competent jurisdiction.

(d)     The floodplain administrator shall maintain a record of all actions involving an appeal and shall report variances to the Federal Emergency Management Agency upon request.

(e)     Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places without regard to the procedures set forth in the remainder of this article.

(f)     Variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level providing the relevant factors in Section 3.1214 have been fully considered. As the lot size increases beyond the one-half acre, the technical justification required for issuing the variance increases.

(g)     Upon consideration of the factors noted above and the intent of this article, the appeal board may attach such conditions to the granting of variances as it deems necessary to further the purpose and objectives of this article.

(h)     Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

(i)     Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

(j)     Prerequisites for granting variances:

(1)     Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(2)     Variances shall only be issued upon:

(A)      showing a good and sufficient cause;

(B)      a determination that failure to grant the variance would result in exceptional hardship to the applicant; and

(C)      a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

(3)     Any application to whom a variance is granted shall be given written notice that the structure will be permitted to be built with the lowest floor elevation below the base flood elevation, and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.

(k)     Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that:

(1)     the criteria outlined in  (a)-(i) above are met; and

(2)     the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

   Sec. 3.1216     Provisions for Flood Hazard Reduction

In all areas of special flood hazards the following provisions are required for all new construction and substantial improvements:

(1)     All new construction or substantial improvements shall be designed (or modified) and adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;

(2)     All new construction or substantial improvements shall be constructed by methods and practices that minimize flood damage;

(3)     All new construction or substantial improvements shall be constructed with materials resistant to flood damage;

(4)     All new construction or substantial improvements shall be constructed with electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding;

(5)     All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system;

(6)     New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the system and discharge from the systems into floodwaters; and

(7)     On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.

   Sec. 3.1217     Standards for Subdivision Proposals

(a)     All subdivision proposals including the placement of manufactured home parks and subdivisions shall be consistent with Sections 3.1201, 3.1202 and 3.1203 of this article.

(b)     All proposals for the development of subdivisions including the placement of. manufactured home parks and subdivisions shall meet Development Permit requirements of Sections 3.1207, 3.1214; and the provisions of Sections 3.1216 - 3.1218 of this article.

(c)      All subdivision proposals including the placement of manufactured home parks and subdivisions shall have adequate drainage provided to reduce exposure to flood hazards.

(d)      All subdivision proposals including the placement of manufactured home parks and subdivisions shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize or eliminate flood damage.

   Sec. 3.1218     Penalties for Noncompliance

No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this article and other applicable regulations. Violation of the provisions of this article by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Any person who shall violate any provision of this article, and upon conviction, the judge shall set punishment of a fine in accordance with the general penalty provision found in Section 1.109 of this code. Each day of violation shall constitute a separate offense. In addition violators shall pay all costs and expense involved in the case. Nothing herein contained shall prevent Krugerville from taking such other lawful action as is necessary to prevent or remedy any violation.

(Ordinance 2000-08 adopted 4/6/00)

   ARTICLE 3.1300 SIGN REGULATIONS*

   Div. 1.  General Provisions

   Sec. 3.1301     Title

This article shall be known and may be referred to as the sign article of the City of Krugerville.

   Sec. 3.1302     Purpose

The purpose of this article is:

(1)     to encourage the effective use of signs as a means of communication within the city and its extraterritorial jurisdiction. Providing that:

(A)     businesses and services may identify themselves;

(B)     customers and other persons may locate a business or service;

(C)     no person is arbitrarily denied the use of sight lines from the public right-of-way for communication purposes; and

(D)     persons exposed to signs are not so overwhelmed by the number of messages presented that they cannot find the information they seek, and are able to seek, and are able to observe or ignore messages according to the viewer's purpose.

(2)     to maintain and enhance the aesthetic environment and the city's ability to attract sources of economic development and growth, providing that signs:

(A)     do not interfere with scenic views;

(B)     do not create a nuisance to persons using the public rights-of-way;

(C)     do not constitute a nuisance to the occupancy of adjacent and contiguous property by their brightness, size, height or movement;

(D)     are not detrimental to land or property values; and

(E)     contribute to the special charter of particular places or districts within the city, helping the observer to understand the city and orient with it.

(3)     to promote safety, by providing that signs:

(A)     do not create a hazard due to collapse, fire, collision, decay or abandonment;

(B)     do not obstruct fire fighting or police surveillance; and

(C)  do not create traffic hazards by confusing or distracting motorist, or by impairing the driver's ability to see pedestrians, obstacles, or other vehicles, or read traffic signs.

(4)     to minimize the possible adverse effect of signs on nearby public and private property; and to enable the fair and consistent enforcement of these sign regulations.

   Sec. 3.1303     Extraterritorial Jurisdiction

This article shall apply to the city's extraterritorial jurisdiction as defined by Chapter 42 of the Texas Local Government Code.

   Sec. 3.1304     Definitions

Off-Premises Sign. Means a permanent sign which advertises a business, person, organization, activity, event, place, service, or product not principally located or primarily manufactured or sold on the premises on which the sign is located.

Premises. Means a lot or unplatted tract, if a combination of contiguous lots or unplatted tracts if the lots or tracts, or combination thereof, is under single ownership as reflected in the plat or tax records of the City of Krugerville or Denton County multi-tenant locations shall be considered as one (1) tract.

Sign. Means any presentation of letters, numbers, figures, emblems, insignias, lines or color or any combination thereof, displayed for the purpose of information, direction or identification, or to advertise or promote a business, service, activity, interest or product.

Billboards. A structure which advertises businesses of products alongside highways or in public places.

Designated Official. Means the employee or official of the City of Krugerville to whom the authority for enforcement of certain provisions of this article is deleted. However, the governing body will retain enforcement powers unless an official is so designated.

Dilapidated or Deteriorated Sign. Means any sign:

(1)     Where any portion of the finished material, surface, or message portion of the sign is visibly faded so as to no longer be clearly read, flaked, broken off, missing, cracked, splintered, defective or is otherwise visibly deteriorated or in a state of disrepair so as not to substantially appear as it was intended or designed to appear when originally constructed; or

(2)     Whose elements or structural support or frame members are visibly bent, broken, dented, or torn, twisted, leaning, or at angles other than those at which it was originally erected (such as may result from being blown or by failure of a structural member).

Abandoned Sign.  Means any sign:

(1)     which, for at least six (6) continuous months, does not identify or advertise a bona fide business, lessor, service, owner, product or activity; or

(2)     for which no legal owner can be found; or

(3)     which pertains to a time, event, or purpose which no longer applies.

Non-Conforming Sign. Means any sign that was lawfully constructed and maintained prior to the effective date of this article and which does not confirm to the requirements of this article.

Sign. Means any presentation of letters, numbers, figures, emblems, insignias, lines or colors or any combination thereof, displayed for the purpose of information, direction or identification, or to advertise or promote a business, service, activity, interest or product.

   Sec. 3.1305     Administrative Procedures

(a)     Permit Required. It shall be unlawful for any person to erect, replace, enlarge or relocate any sign within the city or its extraterritorial jurisdiction without fast obtaining a permit to do so from the designated official, except as may be hereinafter provided. A sign may be erected, placed, established, painted, created or maintained in the city only in conformance with the standards, procedures, exemptions and other requirements of this article. Separate permits may be required for those signs requiring electrical inspections.

(b)     Application for Permit. Application for a permanent sign shall be made in writing upon forms furnished by the designated official. Such application shall contain the:

(1)     Location of the proposed sign by street address number;

(2)     Height;

(3)     Area;

(4)     Sign function; and

(5)     Name, address and phone number of the owner and sign contractor or erector.

     The designated official may require the filing of plans and the pertinent information which, in the official's opinion, is necessary to ensure compliance with this article.

(c)     Termination of Permit: A sign permit may be terminated in accordance with the following provisions:

(1)     A permit shall be active for the life of the sign, as long as it is in compliance with the article.

(2)     A permit shall be terminated if the sign for which it has been issued has not been constructed within one (1) year from the date of issuance.

(3)     A permit issued for any sign and its supporting structures shall automatically terminate in the event the sign shall fail inspection and not corrected with sixty (60) days.

(d)     Permit Fees. A sign permit fee shall be paid to the city in accordance with the most current fee schedule adopted by the city council.

(e)     Permit Revocable. The designated official may suspend or revoke any permit under the provisions of this article whenever he/she determines that the permit was issued in error or on the basis if incorrect or false information supplied, or whenever such permit was issued in violation of any of the provisions of this article or any other article of the city or the laws of this state or the federal government. Such suspension or revocation shall be effective when communicated in writing to the person to whom the permit is issued, the owner of the sign or the owner of the premises upon which the sign is located.

(f)     Inspection. The designated official may inspect each sign regulated by this article annually, or at other time he/she may deem necessary, for the purpose of ascertaining whether the same is obsolete and whether it is in need of removal or repair.

   Sec. 3.1306     Signs Prohibited by This Article

It shall be unlawful for any person to erect, install, construct, display, maintain, reconstruct, place, locate, relocate, or make use of any of the following signs for advertising purposes:

(1)     Off-Premises Signs. Any off-premises sign which is not a properly registered nonconforming off premises sign as provided for in this article.

(2)     Billboards. Any billboards which are not  properly registered nonconforming signs as provided for in this article.

   Sec. 3.1307     Removal of Abandoned or Obsolete Signs and Removal or Repair of Dilapidated, Deteriorated or Unsafe Signs

(a)     Removal of Abandoned or Obsolete Signs. Any sign which the designated official determines is abandoned or no longer serves a bona fide purpose or use conforming to this article, shall be removed by the sign erector, owner, lessee of the land, buildings or structure upon which the sign is located within ten (10) days of written notification to do so from the designated official. Upon failure to comply with such notice, the designated official is hereby authorized to cause the removal of such sign, and any expense incident thereto shall be paid by the sign erector, owner or lessee of the land, building or structure to which the sign is attached or upon which it is erected.

(b)     Removal or Repair of Dilapidated, Deteriorated or Unsafe Signs. Whenever a sign is damaged by wind, is inadequately maintained, has faulty construction, or is damaged by any other cause, it shall be considered a public nuisance and the owner shall be required to repair such sign substantially to its original condition as determined by the designated official. At the owner's election such sign shall be removed. A sign which has been permitted to remain in place as a non-conforming use shall be removed when the sign, or a substantial part of it, is destroyed or dismantled for any purpose other than the maintenance operation or for the changing letters, symbols or other material for the sign. For purposes of this article, a sign or substantial part of it is considered to have been destroyed if the cost of repairing the sign exceeds sixty percent (60%) of the cost of erecting a new sign of the same type at the same location. The designated official may cause any sign which is an immediate hazard to persons to be removed summarily and without notice and the cost of same shall be paid by the land owner.

   Sec. 3.1308     Non-Conforming Uses

(a)     Any sign which does not conform to the regulations stated herein shall be deemed a non-conforming sign. It is the declared purpose of this section that non-conforming signs and signs directing attention to non-conforming uses eventually discontinue and the signs comply with the regulations stated herein, having due regard for the investment in such signs.

(b)     The designated official, after ten (10) days written notice to the owner of the premises on which the sign is located, shall have the authority to remove any non-conforming sign which either:

(1)     Was not permanently affixed to the ground on the effective date of the article; or

(2)     was erected in violation of a city article in effect at the time of its erection.

(c)     The city council may order non-conforming signs which:

(1)     are permanently affixed to the ground on the effective date of the article;

(2)     were erected in conformity with city ordinances in effect at the time of their erection; and

(3)     remain in place after six (6) months from the effective date of this article, to be removed upon and subject to compliance with Chapter 216, Texas Local Government Code.

   Sec. 3.1309     Meritorious Exceptions

It is not the intention of these criteria to discourage innovation. It is entirely conceivable that sign proposals could be made that, while clearly non-conforming to this article and thus not allowable under these criteria, have obvious merit in not only being appropriate to the particular site or location, but also on making a positive contribution to the visual environment. Upon request of an interested party, the city council shall hear and shall seriously and fairly consider a request for a meritorious exception.

   Sec. 3.1310     Sign Control Board

(a)     If a municipality requires the relocation, reconstruction, or removal of a sign within its corporate limits or exterritorial jurisdiction, the presiding officer of the governing body of the municipality shall appoint a municipal board or sign control. The board must be composed of:

(1)     Two real estate appraisers, each of whom must be a member in good standing of a nationally recognized professional appraiser society or trade organization that has an established code of ethics, educational program and professional certification program;

(2)     one person engaged in the sign business in the municipality;

(3)     one employee of the Texas Department of Transportation who is familiar with real estate evaluation in eminent domain proceedings; and

(4)     one architect or landscape architect licensed by this state.

(b)     A member of the board is appointed for a term of two years.

   Sec. 3.1311     Penalty

Any person who violates, disobeys, neglects or refuses to comply with any of the provisions of this section shall be fined in accordance with the general penalty provision found in Section 1.109 of this code. Each day that a provision of this article is violated shall constitute a separate and distinct offense.

(Ordinance 2000-16 adopted 8/11/00)

   Secs.  3.1312—3.1320 Reserved

   Div. 2.  Onsite Sign Regulations

   Sec. 3.1321     Title

This division shall be know and may be referred to as the onsite sign division of the City of Krugerville.

   Sec. 3.1322     Purpose

(a)     The regulations established in this division are intended to provide minimum standards to safeguard life, property, and public welfare, and to regulate and control the use, materials, construction, location, number, maintenance, and the permitting of certain onsite signs and sign structures.

(b)     In addition, the division is intended to enhance the beauty of the town by limiting visual clutter. The provisions of this division are not intended to permit a violation of any provision of any other ordinance or federal or state law.

   Sec. 3.1323     Sign Definitions

For the purposes of this division, the following definitions shall apply:

Awning Sign. An architectural projection that provides weather protection, identity, or decoration, and is supported by the building to which it is attached. It is composed of a lightweight skeleton structure over which a fabric or other material cover is attached. Such sign may be illuminated and shall be considered a wall sign.

Banner. A temporary sign made of paper, plastic, or fabric, with or without a frame, containing characters, letters, illustrations, or ornamentation's applied to paper, plastic, or fabric. Banner does not include a flag.

Billboard. An off-premise sign which directs attention to a business, person, organization, activity, event, place, commodity, product, or service conducted, sold, or offered at a location other than the premises on which the sign is located. (Not allowed).

Builders' Directional Sign. A temporary sign, which provides direction or instruction to guide persons to sites where new homes are under construction, usually off-premise.

Canopy. A structure made of metal or other material with a frame supported by either one or more columns or the building to which it is accessory, and is open on two or more sides.

Construction Sign. A temporary sign identifying individuals or companies involved in design, construction, wrecking, financing, or improvements of the premises where work is under construction.

Directory Sign. A sign which indicates the name and/or address of the tenants or occupants, the address of the premises, and/or identification of any business or occupation, which may exist on the premises.

External Illumination. Illumination of a sign by an artificial source of light which is not contained within the sign itself.

Flag. Any fabric containing distinctive colors, patterns, or symbols, used as a symbol of a government, political subdivision, non-profit organization, or corporation.

Flashing Sign. An illuminated sign on which the artificial source of light is not maintained stationary or constant in intensity and color at all times when the sign is illuminated. For the purpose of this division, any moving illuminated sign affected by intermittent lighting shall be deemed to be a flashing sign (including electronic reader board signs). (Not allowed).

Freestanding Sign. A sign which is not attached to, or a part of a building.

Gross Surface Area. The area of the smallest rectangle enclosing the extreme limits of characters, lettering, illustrations, ornamentation, or other fixtures, material, or color forming part of the sign. Structural supports bearing no sign copy shall not be included in gross surface area; however, if any portion of the required structural supports become enclosed for decorative or architectural purposes, that portion will be included in the total gross surface area of the sign. Gross surface area shall be measured on one side only of a two faced (back to back) sign carrying the same image and message on both faces. Two faced signs carrying different messages and images on each side shall be considered as separate signs.

Illuminated Sign. A sign which has characters, letters, figures, or designs illuminated by electric lights, luminous tubes, or other means that are specifically placed to draw attention to, or provide night time viewing of, the subject matter on the sign face.

Illumination, External. Lighting by means of an unshielded light source (including neon tubing) which is effectively visible as an external part of the sign.

Illumination, Internal. Lighting by means of a light which is within a sign having translucent background, silhouetting opaque letters or designs, on which letters or designs are placed, which are themselves made of translucent material.

Incidental Signs. Small signs of a non-commercial nature, intended primarily for convenience of the public. Included are signs designating restrooms, address numbers, hours of operation, entrances to buildings, directions, help wanted, public telephones, and so forth.

Inflatable Sign. Any display capable of being expanded by air or other gas and used on a permanent or temporary basis to advertise a product or event.

Instructional Sign. A sign limited to directional messages, principally for pedestrian and vehicular traffic, such as one-way, entrance, and exit.

Logo. Any design or insignia of an organization, individual, company, or product which is commonly used in advertising to identify that organization, individual, company, or product.

Marquee. A permanent roof-like structure extending from part of the wall of a building not supported by the ground, and constructed of durable material such as metal, glass, or wood.

Menu Board. A sign displaying the menu for a drive-up window for a food establishment.

Monument Sign. A permanent freestanding ground sign generally constructed of brick, stone, or cast concrete foundation across the entire base of the structure.

Moving Sign. A sign which revolves, rotates, swings, undulates, or otherwise attracts attention through the movement of parts or through the impression of movement, including automatic electronically controlled copy changes, but not including flags, banners, or pennants. (Not allowed).

Nameplate Sign. An on-premise, non-illuminated sign identifying only the name, address, and/or profession of the occupant of the premises on which the sign is located.

On-Premise Sign. A sign which promotes or advertises a business, person, organization, activity, event, place, commodity, product, or service which is conducted, sold, or offered upon the premise where the sign is located.

Pennant. A temporary wind device usually made of lightweight plastic, fabric, or other material whether or not containing a message of any kind, usually triangular in shape and attached to a single cord.

Permanent Sign. A sign which is fixed in nature that is erected, affixed, or maintained on a premises for a period of time which is regulated by Section 3.1325, Permanent Sign Table.

Pole Sign (also called Pylon Sign). A freestanding sign supported by one or more poles columns, uprights, or braces placed in or upon the ground and having no guys or braces to the ground or to any other structure. (Not allowed).

Political Sign. A temporary sign pertaining to any national, state, county, or local election that supports or opposes an announced candidate, political party, or issue of political significance.

Portable Sign. Any temporary sign supported by the ground but not attached to the ground, which can be regularly moved from a location at periodic intervals, and which is located upon the premises where the business, profession, activity, commodity, service, or entertainment referred to by the sign is located. (Not allowed). The term “portable sign” shall include the following:

(1)     Sign that is mounted on a trailer or wheels or is part of a trailer and by its design can be towed from one location to another by the use of attached wheels or by attaching an axle to existing mounts;

(2)     An “A-frame” type sign;

(3)     A sign affixed by pole or poles to a portable base made of wood, metal, or concrete;

(4)     A sign suspended or attached to a stand with an inverted “T” base; and

(5)     Any sign whose base is inserted into a sleeve mounted or driven into the ground which can be easily extracted from said sleeve by simply lifting or removing bolts.

Premises. A lot or tract, or a combination of contiguous lots or unplatted tracts if the lots or tracts or combination are under a single ownership and are reflected in the plat or deed records of Denton County. Multi-tenant locations shall be considered as being one premises.

Pylon Sign. See pole sign. (Not allowed).

Reader Board Sign. A sign comprised of non-permanent letters, numerals, or symbols which may be changed by adding, removing, or rearranging the letters, numerals, or symbols, either manually or electronically.

Real Estate Sign. A sign relating to the sale, lease, or rental of the premises upon which such a sign is placed.

Roof Sign. A sign mounted upon, against, or directly above the roof or parapet line of a building or structure, or that is wholly dependent upon a building for support and that projects above the top wall or edge of a building with a flat roof, the eave line of a building with a gambrel, gable, or hip roof, or the deck line of a building with a mansard roof. (Not allowed).

Search Light. A large outdoor lighting apparatus used to attract attention to a business or a specific location.

Secondary Sign. A sign located on premise identifying individual uses in a mixed use, multitenant commercial shopping center.

Sign. Any name, number, identification, description, announcement, declaration, demonstration, device, display, flag, banner, pennant, illustration, logo, balloon, streamer, valance, advertising display, poster, beacon, light, or insignia, illuminated or non-illuminated, affixed directly or indirectly to or upon any building, window, door, or outdoor structure, which is visible to the general public and calls attention to any business, person, organization, event, commodity, object, product, service, place, or activity, including any permanently installed or situated merchandise or facsimile.

Sign Area. The entire face of a sign, including the advertising surface and any framing, trim, or molding but not including the supporting structure.

Street Grade. The average elevation of the projected corners of a property, adjacent to a dedicated street right-of-way or roadway easement, the elevation of the corners being measured at the top of the curb, or the centerline of the street if no curb is present.

Temporary Event. An event such as a “grand opening,” or a “going out of business sale” which lasts for a period of time not to exceed 30 days.

Temporary Sign. A non-permanent sign designed or intended to be displayed for a short period of time erected, affixed, or maintained on a premises and regulated by Section 3.1326, Temporary Sign Table.

Vehicular Sign. Any sign, not including bumper stickers, on or in a vehicle moving along the ground or on any vehicle parked temporarily, incidental to its principal use for transportation. This definition shall not include signs which are being transported to a site of permanent erection or lettering of a company vehicle that advertises only the company name, address, and/or logo, or temporary signs (with an area less than 3 feet) attached to vehicles which may be removed daily.

Wall Sign. A sign attached or affixed to an exterior wall of a building or structure or dependent upon a building for support with the exposed face of the sign located in a place substantially parallel to the exterior building wall to which it is attached or by which it is supported and not extending more than 12 inches from said wall. A wall sign shall not extend above the wall or parapet to which the sign is attached. For the purpose of this division, awnings, canopy fascias extending along a building side shall be considered a part of the wall.

Warning Sign. A sign containing no advertising material, warning the public of the existence of danger.

Window Sign. A sign attached to, placed upon, or painted on the exterior or interior of a window or door of a building, which is intended for public viewing from the exterior of such building.

Yard Sign. Any sign of a temporary nature other than a development, real estate, builders or construction sign, which includes the advertisement of a service which has been performed on premise, or construction/repair that has been performed on premises.

   Sec. 3.1324     General Standards

(a)     Height of Signs. Sign height shall be measured from ground level at the base of the sign to the highest part of the sign.

(b)     Building and Electrical Codes Applicable. All signs must conform to the regulations and design standards of the building code and other ordinances of the town. Wiring of all electrical signs must conform to the electric code of the town.

(c)     Illumination of Signs. Signs shall be designed, located, shielded, and directed to prevent the casting of glare or direct light from artificial illumination upon adjacent public right-of-way and surrounding property.

(d)     Requirement to Repair. Whenever a sign is damaged by wind, is inadequately maintained, is of faulty construction, or is damaged by any other cause, it shall be considered a public nuisance and the owner shall be required to repair such sign substantially to its original condition or, at the owner's election, such sign shall be removed. A sign which has been permitted to remain in place as a nonconforming use shall be removed when the sign, or a substantial part of it is blown down or otherwise destroyed or dismantled for any purpose other than maintenance operations or for changing the letters, symbols, or other material on the sign. For purposes of this division, a sign or a substantial part of it is considered to have been destroyed if the cost of repairing the sign is more than 50% of the cost of erecting a new sign of the same type at the same location.

(e)     Placement of Signs. No sign may be erected or placed on public right-of-way. Any signs so erected or placed may be removed by the designated official without notice. No sign may be erected or placed on vacant lots or tracts unless written permission has been given by the property owner and such documentation is provided to the designated official upon the official's request.

(f)     Visibility Triangle. No permanent or temporary sign shall be located to block visibility at any intersection of public roadways or intersection of public roadway with a private drive.

(g)     Noncommercial Messages. Any sign authorized in this division is allowed to contain a noncommercial message in place of any other authorized message.

(h)     Off-Premise Signs. Off-premise signs shall be prohibited in the Town of Krugerville, with the exception of builder's directional signs or instructional signs, when written permission has been given by the property owner and such documentation is provided to the designated official upon the official's request.

(i)     Painted Signs. No sign shall be permitted to be painted on the wall of any building or on any part of a building.

   Sec. 3.1325     Permanent Signs Table

No permanent sign shall be erected, placed, displayed or located except in accordance with the following table.

Permanent Signs Table

Type of Sign

Districts Permitted

Maximum Area

Maximum Height

Number of Signs

Requirements

Primary Wall

(Attached)

Non-residential “C1,” “C2,” “M1” & “M2”

10% of primary wall area, 200 s.f. maximum

Top of parapet wall or roof eave height

Signage area can be composed of multiple signs

Only on 2 walls & no rear walls

Secondary Wall

(Attached)

Non-residential “C1,” “C2,” “M1” & “M2”

50% of allowed primary wall sign area, 100 s.f. maximum

Top of parapet wall or roof eave height

Signage area can be composed of multiple signs

Only on 2 walls & no rear walls

Individual

Freestanding

Monument

Non-residential “C1,” “C2,” “M1” & “M2”

80 s.f.

8 ft.

2 freestanding signs per street frontage, 4 maximum

Only monument signs, no pole signs

Multi-tenant

Freestanding

Monument

Non-residential “C1,” “C2,” “M1” & “M2”

32 s.f. per business

25 ft.

1 freestanding sign per street frontage, 2 maximum

Only monument signs, no pole signs

Canopy sign

(covering gas pumps drive thru lanes or parking areas)

Non-residential “C1,” “C2,” “M1” & “M2”

32 s.f.

Top of canopy fascia

On 2 sides of canopy only

Canopies not considered separate buildings for signage purposes

Multi-family

Entry Monument

Multi-family:

“MF”

80 s.f.

7 ft.

1 per entrance

Lighting allowed

Subdivision

Entry Monument

Residential:

“SFE,” “SF1,” “SF2,” “TF,” “MH1,” “MH2”

50 s.f.

each

7 ft.

1 pair per “main” entrance

Lighting allowed

Reader Board

Non-residential “C1,” “C2,” “M1” & “M2”

50 s.f.

7 ft. for freestanding, or on wall or face of primary structure

1 per premises

Lighting allowed and movable letters allowed

   Sec. 3.1326     Temporary Signs Table

No temporary sign shall be erected, placed, displayed, or located except in accordance with the following table:

Temporary Signs Table

Type of Sign

Districts Permitted

Maximum Area

Maximum Height

Time Limit

Requirements

Horizontal

Banner

Non-residential “C1,” “C2,” “M1” & “M2”

50 s.f.

Highest point of roof, attached to building

60 days per year, in 20 day periods

Only one allowed, No lighting

Vertical

Banner

Non-residential “C1,” “C2,” “M1” & “M2”

32 s.f.

25 ft. max., 6 ft. min. to bottom of vertical banner

60 days per year, in 20 day periods

50 ft. min. spacing, 100 ft. min. street frontage, 25' min. to side prop. line

New Business “Coming Soon”

Non-residential “C1,” “C2,” “M1” & “M2”

32 s.f.

Highest point of roof, attached to building

During lease space finish out, 60 day max. or 30 day max. with no finish out

1 sign per lease space, on building, no lighting

New Business

“Now Open”

Non-residential “C1,” “C2,” “M1” & “M2”

32 s.f.

Highest point of roof, attached to building

30 days from C.O.

Must be affixed to store front

Pennants

Non-residential “C1,” “C2,” “M1” & “M2”

Not Applicable

Highest point of roof

21 days

Only during special events or grand openings

Balloons over

24" diameter

“MF” & Non-residential “C1,” “C2,” “M1” & “M2”

Not Applicable

50 ft.

21 days

Only during special events or grand openings

Inflatable Objects

“MF” & Non-residential “C1,” “C2,” “M1” & “M2”

Not Applicable

25 ft.

21 days

Only during special events or grand openings

Weekend Builders Advertising

All

6 s.f.

3 ft.

12 noon Friday till 12 noon Monday, except holidays

25 max., 5 ft. from curb, 200 ft or 1 block apart, 40 ft. min. from intersection, No lighting

Political

All

32 s.f.

10 ft.

30 days

On private property, not on R.O.W., No lighting, Removed 24 hr. after election or runoff

Church, charity & civic, On-premises

All

32 s.f.

15 ft.

10 days prior to event & during event, 30 days max.

On private property, not on R.O.W., No lighting, Removed 24 hr. after event

Church, charity/civic, Off-premises

All

12 s.f.

3 ft.

10 days prior event & during event, 30 days max.

On private property, not on R.O.W., No lighting, Removed 24 hr. after event

US, Texas or Patriotic Flag

All

32 s.f.

25 ft.

Not applicable

1 per flag type, No spacing requirements

Decorative Flag (color only, Logo allowed, no text allowed)

“MF” & “M2”

6 s.f.

25 ft. max., 6 ft. min. to bottom of flag

Not applicable

Street frontage

0-150' 4 flags

151-200' 5 flags

201-250' 6 flags

251-300' 7 flags

Over 300' 8 flags

Real Estate

Land Sale

All

100 s.f.

15 ft.

Remove prior to development

1 acre min., 2 sign max., 1 sign per frontage, No lighting

Residential

Construction

Residential:

“SFE,” “SF1,” “SF2,” “TF,” “MH1,” “MH2” & “MF”

100 s.f.

15 ft.

Till project 80% complete

1 sign per major existing street frontage, No lighting

Multi-family

Units for Rent

or Lease Banner

“MF”

32 s.f.

Highest point of roof on building, or 15 ft. max. for freestanding signs

60 days per year, in 10 day periods

1 per street frontage max. 2, No lighting

New Commercial Building

Non-residential “C1,” “C2,” “M1” & “M2”

100 s.f.

15 ft.

Till 80% complete

1 sign per major ex. street frontage, Lighting allowed

   Sec. 3.1327     Prohibited Signs

The following signs are prohibited from installation, construction, repair, alteration, or relocation within the town, except as otherwise permitted in this division:

(1)     Pole or Pylon signs.

(2)     Roof signs.

(3)     Portable signs, “A” Frame Signs, or Sandwich Board Signs except as used by agencies and departments of the Town of Krugerville for public service/safety announcements or information and then only with the approval of the mayor and/or administrative official.

(4)     Moving, flashing, animated, or rotating signs, signs with moving lights, or signs which create the illusion of movement, except for reader boards which convey a message.

(5)     Signs placed on or affixed to vehicles and/or trailers which are parked on a public right-of-way, public property, or private property so as to be visible from a public right-of-way where the apparent purpose is to advertise a product or direct people to a business or activity located on the same or nearby property. However, this does not prohibit signs placed on vehicles and trailers that are incidental to the primary use or ownership of the vehicle or trailer as transportation.

(6)     Signs attached to utility poles or other surfaces which are not the property of the utility or serve a public purpose located within a public right-of-way or easement.

(7)     Permanent off-premise signs, as defined by the Highway Beautification Act.

   Sec. 3.1328     Onsite Signs Exempt From Regulation

The following onsite signs are exempt from the provisions and regulations of this division:

(1)     Public Signs. Signs required by governmental bodies or specifically authorized for a public purpose by any law, statute, or ordinance. Such public signs may be of any type, number, area, height, location, or illumination as required by law, statute, or ordinance.

(2)     Signs on Vehicles. Signs placed on or affixed to vehicles and/or trailers where the sign is incidental to the primary use of the vehicle or trailer as transportation.

(3)     Warning Signs. Signs warning the public of the existence of danger but containing no advertising material; to be removed within three days upon the subsidence of danger. Such warning signs may be of any type, number, area, height, location, or illumination as deemed necessary to warn the public of the existence of danger.

(4)     Flags. Flags of governmental entities or non-profit organizations. Nothing in this division shall be construed to prevent the display of a national or state flag, or to limit flags, insignias, or legal notices, or informational, directional, or traffic signs which are legally required and necessary to the essential functions of government agencies.

(5)     Governmental Signs. Signs of a duly constituted governmental body, including traffic or similar regulatory devices, legal notices, warnings at railroad crossings, and other instructional or regulatory signs having to do with health, hazards, parking, swimming, dumping, etc.

(6)     Address Numerals. Address numerals and other signs required to be maintained by law or governmental order, rule, or regulation are allowed, provided that the content and size of the sign do not exceed the requirements of such law, order, rule, or regulation.

(7)     Athletic Signs. Signs used as scoreboards in athletic stadiums.

(8)     Directional Signs. Signs which direct vehicles and pedestrian traffic, which may display arrows, words, or other symbols to indicate direction of facilities.

(9)     Directory Signs. Signs which are located in or adjacent to entrances or foyers.

(10)     Instructional Signs. Signs providing no advertising of any kind, which provide direction or instruction to guide persons to facilities intended to serve the public, including but not specifically limited to the signs identifying restrooms, public telephones, public walkways, parking areas, and other similar facilities.

   Sec. 3.1329     Permit Requirements

Except as herein provided, no permanent onsite sign shall be erected, placed, displayed or located without first obtaining a sign permit from the town.

(1)     Application for Permit. Application for a permit for a permanent sign shall be made in writing upon forms furnished by the administrative official. Such application shall contain the location by street and address number of the proposed sign, height, area, sign function, as well as the name, address and phone number of the owner and sign contractor or erector. The administrative official may require the filing of plans or other pertinent information which, in the administrative official's opinion, is necessary to ensure compliance with this division.

(2)     Termination of Permit. A sign permit may be terminated in accordance with the following provisions:

(A)     A permit shall be active for the life of the sign, as long as it is in compliance with this division.

(B)     A permit shall be terminated if the sign for which it has been issued has not been constructed within one year from the date of issuance.

(C)     A permit issued for any sign including its supporting structure shall automatically terminate in the event the sign shall fail and not be corrected within 60 days.

(D)     Permit Fees. A sign permit fee shall be paid to the town in accordance with the most current fee schedule adopted by the town.

   Sec. 3.1330     Nonconforming Onsite Signs

Any existing onsite sign that does not conform to the regulations stated herein shall be deemed a nonconforming sign and shall be subject to the provisions of nonconforming uses as provided in the Town of Krugerville Zoning Ordinance. It is the declared purpose of this section that nonconforming signs and signs directing attention to nonconforming uses eventually discontinue and the signage comply with the regulations stated herein, having due regard for the investment in such signs.

   Sec. 3.1331      Removal of Nonconforming Onsite Signs

The town council may order nonconforming onsite signs which:

(1)     are permanently affixed to the ground on the effective date of this division;

(2)     were erected in conformity with town ordinances in effect at the time of their erection; and

(3)     remain in place after six months from the effective date of this division, to be removed upon and subject to compliance with Chapter 216, Texas Local Government Code.

   Sec. 3.1332     Onsite Signs for a Nonconforming Use

Any lawfully existing nonconforming use or building may erect and maintain a sign in accordance with the regulations contained herein.

   Sec. 3.1333     Meritorious Exceptions and Appeals

(1)     Generally. It is not the intention of these criteria to discourage innovation. It is entirely conceivable that signage proposals could be made that, while clearly nonconforming to this article and thus not allowable under these criteria, have obvious merit in not only being appropriate to the particular site or location, but also in making a positive contribution to the visual environment.

(2)     Upon request of an interested party, the town council, upon recommendation by the planning and zoning commission, shall hear and shall seriously and fairly consider a request for a meritorious exception under this section.

   Sec. 3.1334     Prohibition

All onsite signs not specifically authorized herein are prohibited. The administrative official shall have the authority to remove any sign in violation of this division which is not permanently affixed to the ground on the effective date of this division.

(Ordinance 2003-010 adopted 7/3/03)

   ARTICLE 3.1400 ENERGY CONSERVATION CODE*

   Sec. 3.1401     Adoption

The city has adopted the International Energy Conservation Code, 2000 edition, governing the development of properties within the city and the city's extraterritorial jurisdiction. (Ordinance 2006-010, sec. 1, adopted 8/24/06)

   ARTICLE 3.1500 FENCES

   Sec. 3.1501     Purpose and Applicability

(a)     Purpose. The purpose of this article is to regulate the construction, erection, enlargement, alteration and maintenance of all fences within the boundaries of the city in order to allow for privacy and security, maintain neighborhood appearance and enhance the general welfare of the community, and provide for practical safeguarding of life, health and property from hazards that may arise from improper construction or maintenance of fences. Regulations are prescribed for the location and type of various screening devices to be used when required in the various zoning districts or in this article in accordance with the following standards.

(b)     Applicability. This article shall apply in all zoning districts within the city.

   Sec. 3.1502     Permits Required

(a)     Permits.

(1)     It shall be unlawful for any person to install or cause to be installed or to permit any person to install a fence, or to make any alterations, additions or changes to a fence, without first having procured a permit to do so from the city's chief building official.

(2)     The fee for the permit required by this section shall be set by the city council and shall be paid prior to the issuance of the permit.

(3)     The chief building official shall require a plot plan showing the lot size, all improvements on the lot and the proposed location of the fence to be constructed before a permit will be issued under this section.

(4)     The chief building official may refuse to issue a permit under this section to any person who has been convicted of a violation of any provision of this article.

(b)     Inspections Required.

(1)     When any fence for which a permit has been issued under this article is completed, it must be inspected by the city for compliance with the applicable construction codes. The chief building official's office shall be notified upon completion of the fence.

(2)     The chief building official will certify acceptance if the fence complies with the provisions of this article or reject the fence if it does not so comply.

(3)     The owner of the property shall be required to remove any noncompliant fence and/or replace it with a fence that does comply.

   Sec. 3.1503     General Standards

(a)     Fence Materials and Types.

(1)     Except as otherwise stated herein, fences may be constructed of wrought iron, vinyl, stone, masonry, brick, welded wire within wood framing with wooden posts, wood or other materials of like kind that the chief building official determines have the same quality, appearance and durability.

(Ordinance 2007-003 adopted 2/8/07)

(2)     Chainlink fences shall not be permitted in SF-1 and/or SF-E zoning districts. (Ordinance 2007-007 adopted 5/10/07)

(3)     Electric fences. A fence constructed in such a manner that it may conduct electrical current shall not be permitted in any zoning district.

(4)     Barbed-wire and/or razor-wire fences shall not be permitted in any zoning district.

(5)     Welded or woven wire, such as chicken wire, hog wire, stockade panels or similar agricultural wires shall not be permitted in any zoning district. A barbed-wire, welded or woven wire fence may be built on a lot that is larger than one and one-half acre or more, which is not in zoning districts SF-E, SF-1, SF-2 and/or provided that any other ordinance or law does not otherwise prohibit such a fence.

(6)     Galvanized sheet metal, corrugated metal, or corrugated fiberglass fences shall not be permitted in any zoning district.

(7)     Any stone, masonry or brick wall or fence constructed of similar materials greater than four feet in height shall be engineered, designed and the plans sealed by a state professional engineer.

(b)     Fence Heights.

(1)     Front yard setback area fence requirements in zoning districts SF-E, SF-1, SF-2:

(A)     No fence, other than wrought iron fencing, shall be permitted from the front building line to the street right-of-way line.

(B)     No fence or shrub shall exceed four (4) feet in height in the front yard.

(2)     Side and rear yard setback area fence requirements in zoning districts SF-E, SF-1, SF-2:

(A)     Fences may be constructed to a maximum height of eight feet with a minimum height of 4 feet on any side or rear property line up to the building line of the building proper.

(3)     Corner lot fence requirements:

(A)     On all corner lots in residential districts which have opposing rear lot lines, whether directly or across an alley, fences may be constructed to a maximum height of eight feet along the side and rear yard lines. Fences may be constructed to the normally permitted height elsewhere on the property.

(B)     On all corner lots in residential districts where the side lot line is immediately adjacent to the front yard of the adjacent lot (or immediately across an alley from the front yard of the adjacent lot), fences may be constructed to a maximum height of two and one-half feet between the side yard setback line and the property line adjacent to the street. Fences may be constructed to the normally permitted height elsewhere on the property.

(4)     No fence adjacent to a required subdivision screening wall, whether parallel or perpendicular to the wall, may be constructed higher than the height of the subdivision screening wall.

(5)     Fences around tennis courts, regardless of the district in which they are located, shall be constructed between ten and twelve feet in height. Such fences shall be chainlink or other open view material so as to minimize the visual impact of the fence.

(c)     Other Fence Standards.

(1)     Sight Visibility at Intersections. No fence shall be constructed in the triangle formed by measuring 20 feet back from the intersection of two streets or 15 feet back from the intersection of a street and an alley. The city engineer may require additional sight distances to be maintained where specific conditions render such provisions necessary to provide for the public health and safety.

(2)     Construction Within Drainage Easements. No fence shall be constructed within any drainage easement in the corporate limits of the city unless the city engineer shall have first determined and advised the chief building official, in writing, that he believes such fence shall, in all probability, not interfere with or impair the natural flow of water across the drainage easement.

(3)     Every fenced enclosure constructed under the provisions of this article shall have at least one gate in its perimeter.

   Sec. 3.1504     Specific Use of Screening Between Zoning Districts

(a)     When a boundary of a nonresidential zoning district is adjacent to, sides or backs upon an SF-E, SF-1, SF-2, 2F, MH, or MF District, a solid screening wall or fence of not less than six (6) feet nor more than eight (8) feet in height shall be erected on the property line separating these districts. The purpose of the screening wall or fence is to provide a visual barrier between the properties.

(b)     The owner of such property requesting a building permit shall be responsible for and shall build the required wall or fence on his property line dividing his property from the more restrictive zoning district.

(c)     Unless otherwise provided for herein, a screening wall or fence required under the provisions of this section shall be constructed of a permanent, solid masonry material.

(d)     All wall or fence openings shall be equipped with gates compatible in height and screening characteristics to the wall or fence.

(e)     In cases where city council finds this requirement may be better met by a screen of living, irrigated plant materials, a landscape plan may be submitted in lieu of a screening wall. Such landscape screening must be no less than four (4) feet deep and must demonstrate screening characteristics equal to that of a masonry-screening wall.

(f)     In cases where city council finds this requirement is better met by a decorative fence or a combination of decorative fence and masonry screening wall and/or living plant materials, the same may be submitted to the city for approval along with a landscape plan.

(g)     All required screening walls shall be equally finished on both sides of the wall.

(h)     Electric fences are not permitted in any zoning district. Existing electric fences shall be removed at the time that property ownership is transferred.

(i)     All required screening elements shall be permanently maintained by the nonresidential property owner.

(j)     Dumpsters and trash receptacles located on property that is not zoned for a residential use and/or on sites used for nonresidential purposes shall be located on a concrete pad constructed for that purpose. Said dumpsters and trash receptacles shall be screened on three sides by a masonry wall and shall contain a solid self-latching gate. The masonry wall shall be of similar construction as the principle building. Nondecorative concrete block shall not be permitted. A screening device shall be erected along side and rear property lines adjacent to residential districts, [and] the screening device shall be a minimum height of eight (8) feet unless otherwise approved by city council.

   Sec. 3.1505     Swimming Pool Enclosures

(a)     All swimming pools shall comply with the following:

(1)     Residential pools shall conform with the International Residential Code for pool fencing standards, as amended.

(2)     Public pools, including but not limited to apartment complex pools, shall conform with chapter 757 of the Texas Health and Safety Code, as amended.

(b)     Every swimming pool, or excavation designed or intended to ultimately become a swimming pool, while under construction as well as after completion, shall be continuously protected by an enclosure surrounding the pool or excavated area in such a manner as to make such pool or excavated area reasonably inaccessible to small children or animals. This provision shall not apply to:

(1)     Bodies of water other than swimming pools which are owned or controlled by the federal government, state, county or any agency, subdivision or department thereof.

(2)     Bodies of water located in natural drainage ways.

(c)     All plans submitted to the city for swimming pools to be constructed shall show compliance with the requirements of this section, and the final inspection and approval of all pools constructed shall be withheld until all requirements of this section have been complied with by the owner, purchaser under contract, lessee, tenant or licensee.

   Sec. 3.1506     Not Permitted on Public Property

No fence or any part of such fence shall be constructed upon or caused to protrude over public property. All fences must be maintained in a plane so as not to overhang public property.

   Sec. 3.1507     Maintenance

All fences constructed under the provisions of this article shall be maintained so as to comply with the requirements of this article at all times. The chief building official may order the repair or removal of a fence if it is more than five percent damaged or leaning ten degrees from vertical. Fences shall be repaired in compliance with the provisions of this article.

   Sec. 3.1508     Appeals

Any appeal from an interpretation of the chief building official of the provisions of this article shall be made to the board of adjustment.

(Ordinance 2007-003 adopted 2/8/07)

   ARTICLE 3.1600 SUBSTANDARD BUILDINGS*

   Sec. 3.1601     Adoption of chapter 214, subch. A, Texas Local Government Code

The city hereby adopts Chapter 214, subchapter A, of the Texas Local Government Code, as amended, and the following minimum standards for the continued use and occupancy of all buildings regardless of the date of their construction; the following provisions for giving proper notice to the owner of a building; and the following provisions for a public hearing to determine compliance of real property, buildings, structures, premises and vacant lots. In the event that any provision of this article conflicts with said Chapter 214, subchapter A, or in the event that any provision of said Chapter 214, subchapter A has been omitted from this article, the city shall be entitled to pursue its remedies in conformity with said state law, as hereafter amended.

   Sec. 3.1602     Building Standards Commission

(a)     Building Standards Commission Created. There is hereby created a building standards commission which shall consist of the city council. All cases to be heard by the commission shall be heard by a majority of the members.

(b)     Ex Officio Members. The fire marshal, the building inspector and the health officer of the city shall be ex officio, nonvoting members of the building standards commission.

It shall be the duty of the ex officio members of the building standards commission to inspect all buildings or structures reported to be or believed to be substandard and present a report of such inspection to the city manager.

(c)     Officers of the Board. At its first meeting of each year, the board shall select from its members a chairperson, vice-chairperson and a secretary of the board.

(d)     Rules and Procedures.

(1)     A majority of the commission shall be required to constitute a quorum and the concurring vote of a majority of the members of the commission is necessary to take any action under this article.

(2)     A board member having a personal or financial interest in any matter before the board shall excuse himself from the discussion and the vote on that matter.

(3)     The person acting as secretary to the board shall make a record of all proceedings of the board which shall set forth the particulars of the matter before the board, the decision rendered by the board, the reason for the said decision and the vote of each member participating therein.

(4)     The chairperson or city manager may call meetings of the board when necessary to rule on any case brought before it regarding substandard building nuisances.

(5)     The board shall establish such other rules and procedures it deems necessary for the election of officers and the conduct of its business.

(6)     The board shall hear any case dealing with substandard building nuisances and make a ruling as to whether such building is a public nuisance and whether such building or structure should be repaired, vacated and/or demolished.

   Sec. 3.1603     Alterations, Additions, and Repairs

All buildings or structures which are required to be repaired under provisions of this article shall be subject to all applicable sections of the building code, as amended, and as adopted by the city council.

   Sec. 3.1604     Declaration of Public Nuisance

Any real property, building, structure, or any portion thereof, or any premises, including a vacant lot, in or on which there exists a condition not in compliance with this article shall be deemed and is hereby declared to be a public nuisance, a violation of this article and subject to the penalty clauses and remedies available to the city hereunder and under the common law or equity jurisprudence of the state.

   Sec. 3.1605     Definitions

Terms, words, phrases and their derivatives used, but not specifically defined in this article, shall have the meanings defined in Webster's New Collegiate Dictionary. Words used in the singular include the plural and the plural the singular. Words used in the masculine gender include the feminine and the feminine the masculine. For purposes of this article, the following terms shall have the following meanings, unless the context clearly indicates that a different meaning is intended:

Enforcement Officer. The chief of police, code enforcement officer, health officer or their designated representatives, charged with any enforcement and administration of this article.

Inspection. The examination of property by the enforcement officer or his authorized representative for the purpose of evaluating its condition as provided for in this article.

Manifestly Unsafe. A building that is a public nuisance, as that term is defined in this section, or unsafe for human occupation, whether temporary or permanent, and a hazard to the public health, safety and welfare.

Owner. Any person, agent, firm, corporation, association or other entity having legal or equitable interest in a property as shown on the most recent tax roll.

Person. Any person, agent, firm, corporation, association or tenant.

Public Nuisance. Any act, condition or thing existing, done or in being, which act, condition or thing endangers the peace, property, health, and safety of the citizens of the city.

Tenant. Any person, agent, firm, corporation, or association who occupies a property or premises and who is not the owner.

   Sec. 3.1606     Specific Nuisances

Without limiting the power of the city council to hereafter declare as public nuisances any other act, condition, or thing, by ordinance, the following specific acts, conditions, and things are, each and all of them, hereby declared to be and constitute public nuisances:

(1)     Any building, structure, or any portion thereof that is:

(A)     Dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare;

(B)     Regardless of its structural condition, unoccupied by its owners, lessees, or other invitees and is unsecured from unauthorized entry to the extent that it could be entered or used by vagrants or other uninvited persons as a place of harborage or could be entered or used by children; or

(C)     Boarded up, fenced or otherwise secured in any manner if:

(i)     The building constitutes a danger to the public even though secured from entry; or

(ii)     The means used to secure the building are inadequate to prevent unauthorized entry or use of the building.

(2)     Any building or structure which has any or all of the conditions or defects hereinafter described shall be deemed to be a dangerous building, provided that such conditions or defects exist to the extent that the life, health, property or safety of the public or its occupants is endangered:

(A)     Whenever any door, aisle, passageway, stairway or other means of exit is not of sufficient width or size or is not so arranged as to provide safe and adequate means of exit in case of fire or panic.

(B)     Whenever the walking surface of any aisle, passageway, stairway or other means of exit is so warped, worn, loose, torn or otherwise unsafe as to not provide safe and adequate means of exit in case of fire or panic.

(C)     Whenever the stress in any materials, member or portion thereof, due to all dead and live loads, is more than one and one half times the working stress or stresses allowed in the building code for new buildings of similar structure, purpose or location.

(D)     Whenever any portion thereof has been damaged by fire, earthquake, wind, flood or by any other cause, to such an extent that the structural strength or stability thereof is materially less than it was before such a catastrophe and is less than the minimum requirements of the building code for new buildings of similar structure, purpose or location.

(E)     Whenever any portion or member or appurtenance thereof is likely to fail, or to become detached or dislodged, or to collapse and thereby injure persons or damage property.

(F)     Whenever any portion of a building, or any member, appurtenance or ornamentation on the exterior thereof is not of sufficient strength or stability, or is not so anchored, attached or fastened in place so as to be capable of resisting a wind pressure of one half of that specified in the building code for new buildings of similar structure, purpose or location without exceeding the working stresses permitted in the building code for such buildings.

(G)     Whenever any portion thereof has cracked, warped, buckled or settled to such an extent that walls or other structural portions have materially less resistance to wind or earthquakes than is required in the case of similar new construction.

(H)     Whenever the building or structure, or any portion thereof, is manifestly unsafe because of:

(i)     Dilapidation, deterioration or decay;

(ii)     Faulty construction;

(iii)     The removal, movement or instability of any portion of the ground necessary for the purpose of supporting such building;

(iv)     The deterioration, decay or inadequacy of its foundation; or

(v)     Any other cause, is likely to partially or completely collapse.

(I)     Whenever, for any reason, the building or structure, or any portion thereof, is manifestly unsafe for the purpose for which it is being used.

(J)     Whenever the exterior walls or other vertical structural members list, lean or buckle to such an extent that a plumbline passing through the center of gravity does not fall inside the middle one third of the base.

(K)     Whenever the building or structure, exclusive of the foundation, shows thirty-three percent (33%) or more damage or deterioration of its supporting member or members, or fifty percent (50%) damage or deterioration of its nonsupporting members, enclosing or outside walls or coverings.

(L)     Whenever the building or structure has been so damaged by fire, wind, earthquake or flood, or has become so dilapidated or deteriorated as to:

(i)     Become an attractive nuisance to children;

(ii)     Become a harbor for vagrants, criminals or immoral persons; or

(iii)     Enable persons to resort thereto for the purpose of committing unlawful or immoral acts.

(M)     Whenever any building or structure has been constructed, exists or is maintained in violation of any specific requirement or prohibition applicable to such building or structure provided by the building regulations of this jurisdiction, as specified in the International Building Code or International Property Maintenance Code, or of any law or ordinance of this state or jurisdiction relating to the condition, location or structure of buildings.

(N)     Whenever any building or structure which, whether or not erected in accordance with all applicable laws and ordinances, has in any nonsupporting part, member or portion less than fifty percent (50%), or in any supporting part, member or portion less than sixty-six percent (66%) of the:

(i)     Strength;

(ii)     Fire-resisting qualities or characteristics; or

(iii)     Weather-resisting qualities or characteristics;

     Required by law in the case of a newly constructed building of like area, height and occupancy in the same location.

(O)     Whenever a building or structure, used or intended to be used for dwelling purposes, because of inadequate maintenance, dilapidation, decay, damage, faulty construction or arrangement, inadequate light, air or sanitation facilities, or otherwise, is determined by the health officer to be unsanitary, unfit for human habitation or in such a condition that it is likely to cause sickness or disease.

(P)     Whenever any building or structure, because of obsolescence, dilapidated condition, deterioration, damage, inadequate exits, lack of sufficient fire-resistive construction, faulty electric wiring, gas connections or heating apparatus, or other cause, is determined by the fire marshal to be a fire hazard.

(Q)     Whenever any building or structure is in such a condition as to constitute a public nuisance known to the common law or in equity jurisprudence.

(R)     Whenever any portion of a building or structure remains on a site after the demolition or destruction of the building or structure or whenever any building or structure is abandoned for a period in excess of six (6) months so as to constitute such building or portion thereof an attractive nuisance or hazard to the public.

(S)     Whenever water heating facilities are not properly installed and maintained in a safe and good working condition and/or such water heating facilities are not capable of heating water to such a temperature as to permit an adequate amount of water to be drawn at every required kitchen sink, lavatory basin, bathtub or shower at a temperature of not less than one hundred twenty degrees (120°) Fahrenheit. Such water heating facilities shall be capable of meeting the requirements of this subsection when the dwelling or dwelling unit heating facilities required under the provisions of this subsection are not in operation.

(T)     Whenever any minimum standards provided by the International Building Code, the International Property Maintenance Code, the International Residential Code, the International Fire Code, the International Mechanical Code, the International Plumbing Code, the International Fuel Gas Code or National Electrical Code, as amended, and as adopted by the city council, are not met for any building or structure.

   Sec. 3.1607     Minimum Standards

(a)     The minimum standards for the continued use and occupancy of all buildings, regardless of the date of construction thereof, shall be those established by the International Property Maintenance Code, which standards are hereby adopted, as well as those standards established by the International Building Code as promulgated by the International Conference of Building Officials as heretofore previously adopted or hereafter adopted or amended by the city, and those standards established by this article.

(b)     Those standards specified and enumerated in Section 3.1606.

   Secs. 3.1608–3.1609     Reserved
   Sec. 3.1610     Notice to Property Owners and Others of Public Hearing

(a)     If the building official determines that the nuisance requires the vacation, securing, repair, or removal of a building, structure, or nuisance condition on the property, or the relocation of the occupants of the property, the building official shall:

(1)     Give notice of the nuisance to the owner, lessor, lienholder, and mortgagees of record and occupant, if different than the owner of the structure or, by personal service, by certified mail or by the United States Postal Service using signature confirmation service (with a duplicate copy addressed to such owner, tenant or occupant as shown in the most recent tax roll or utility records of the City and deposited in the U. S. Mail, postage paid), in addition a copy of the notice shall be posted on the front door of each improvement situated on the affected property or as close to the front door as practical;

(2)     Provide detail in such notice of the standard(s) violated under this article and the necessary action to abate the nuisance (a copy of the building official's report is sufficient for this purpose);

(3)     Advise such owner, tenant or occupant of the date and time of the public hearing at which a determination will be made by the building standards commission as to whether the nuisance exists and whether the real property, building, structure, premises or any portion thereof complies with the standards of this article;

(4)     Include a statement in such notice that the owner, lienholder or mortgagee will be required to submit proof of the scope of any work that may be required to comply with this article and the time it will take to reasonably perform the work; and

(5)     Provide a copy of such notice of nuisance, details thereof, the required action necessary to abate the nuisance, and the date and time of the public hearing to any mortgagee or lienholder of record after a diligent effort to discover such mortgage or lienholder.

(b)     The following of the procedures set forth in subsection (a) shall be prima facie evidence of notification.

(c)     If the city mails a notice in accordance with this article to a property owner, lienholder, or mortgagee and the United States Postal Service returns the notice as “refused” or “unclaimed,” the validity of the notice is not affected, and the notice is considered delivered.

(d)     The city satisfies the requirements of this article to make a diligent effort, to use its best efforts, or to make a reasonable effort to determine the identity and address of an owner, a lienholder, or a mortgagee if the city searches the following records:

(1)     Denton County real property records;

(2)     Denton County appraisal district records;

(3)     Records of the secretary of state;

(4)     Assumed name records of Denton County;

(5)     Tax records of the city; and

(6)     Utility records of the city.

   Sec. 3.1611     Date of Public Hearing

The date of the public hearing before the building standards commission shall not be less than thirty (30) days from the date of personal service or deposit of the same in the U.S. Mail, whichever is earliest.

   Sec. 3.1612     Filing of Notice in Public Records

The city secretary shall file a notice of public hearing in the Denton County Real Property Records within ten (10) days of the date of the public hearing. The notice of public hearing shall contain:

(1)     The name and address of the owner of the affected real property, if that information can be determined from a reasonable search of the instruments on file with the county clerk;

(2)     A legal description of the property; and

(3)     A description of the hearing.

   Sec. 3.1613     Effect of Filing of Notice in Public Records

The filing of the notice under Section 3.1612 shall be binding upon subsequent grantees, lienholders, or other transferees of any interest in the property who acquire such interest after the filing of the notice, and constitutes notice of the hearing on any subsequent recipient of any interest in the property who acquires such interest after the filing of the notice.

   Sec. 3.1614     Conduct of Public Hearing

The building standards commission shall conduct the public hearing to determine compliance with the standards set out in this article. At the public hearing, the owner, lienholder or mortgagee shall have the burden of proof to demonstrate the scope of any work that may be required to comply with this article and the time it will take to reasonably perform the work.

   Sec. 3.1615     Orders and Notice After Public Hearing

(a)     If, after a public hearing, the building standards commission finds that a nuisance exists pursuant to this article, the building standards commission shall require the owner, lienholder, or mortgagee of the real property, building, structure or premises to within thirty (30) days:

(1)     Secure the offending building or structure from unauthorized entry; or

(2)     Abate the nuisance or repair, remove or demolish the building unless the owner, mortgagee or lienholder establishes at the hearing that the work cannot reasonably be performed within the thirty (30) days allowed. The building standards commission shall establish specific time schedules for the commencement and performance of the work and shall require the owner, lienholder or mortgagee to secure the property in a reasonable manner from unauthorized entry while the work is being performed.

(b)     If, after the public hearing, a building, structure or premises is found in violation of the standards set forth in this article, the building standards commission may order that the building, structure, or premises be vacated, secured, repaired, removed, or demolished by the owner within a reasonable time as provided by this section. The building standards commission also may order that the occupants be relocated within a reasonable time, at the cost of the owner. The building standards commission reserves the right to determine what is a reasonable amount of time to perform the ordered work or what is a reasonable amount of time to relocate occupants. In the event the owner fails to comply with the order within the time provided for action by the owner, the building standards commission may order any of the mortgagees or lienholders of the building, structure, or premises to be vacated, secured, repaired, removed, or demolished to comply with the order within a reasonable time as provided by this section. The building standards commission also may order that the occupants be relocated within a reasonable time, at the cost of any of the mortgagees or lienholders. Under this section, the city is not required to furnish any notice to a mortgagee or lienholder other than a copy of the order in the event the owner fails to timely take the ordered action.

(c)     If the owner, lienholder or mortgagee establishes at the public hearing that the work cannot be reasonably completed within ninety (90) days because of the scope and complexity of the work, and if the owner, lienholder or mortgagee has submitted at the hearing a detailed plan and time schedule, and the building standards commission allows the owner, lienholder, or mortgagee more than ninety (90) days to complete any part of the work required to abate the nuisance or repair, remove or demolish the building or structure, the building standards commission shall require the owner, lienholder or mortgagee to regularly submit progress reports to the building standards commission through the building official to demonstrate compliance with time schedules for commencement and performance of the work and may require appearance before the building official, the building standards commission, or their designees, to demonstrate compliance. If the owner, lienholder, or mortgagee owns property, including structures or improvements on property, within the city boundaries that exceeds $100,000 in total value, the building standards commission may require the owner, lienholder, or mortgagee to post a cash or surety bond in an amount adequate to cover the cost of repairing, removing, or demolishing a building under this subsection. In lieu of a bond, the building standards commission may require the owner, lienholder, or mortgagee to provide a letter of credit from a financial institution or a guaranty from a third party approved by the building standards commission. The bond must be posted, or the letter of credit or third-party guaranty provided, not later than the 30th day after the date the city issues the order.

(d)     Within ten (10) days after the date that the order is issued, the city secretary shall:

(1)     File a copy of the order in the city secretary's office; and

(2)     Publish in a newspaper of general circulation in the city a notice containing:

(A)     The street address or legal description of the property;

(B)     The date of the hearing;

(C)     A brief statement indicating the results of the order; and

(D)     Instructions stating where a complete copy of the order may be obtained.

(E)     After the public hearing, the city secretary shall promptly mail by certified mail with return receipt requested, deliver by the United States Postal Service using signature confirmation service, or personally deliver a copy of the order to the owner of the building and to any lienholder or mortgagee of the building. The city shall use its best efforts to determine the identity and address of any owner, lienholder, or mortgagee of the building, structure or premises.

(F)     If the building, structure or premises is not vacated, secured, repaired, removed, or demolished, or the occupants are not relocated within the allotted time, the city may vacate, secure, remove, or demolish the building or relocate the occupants at its own expense. This subsection does not limit the ability of the city to collect on a bond or other financial guaranty that may be required by subsection (c) of this section.

   Sec. 3.1616     Repair, Vacation or Demolition

The following standards shall be followed by the building standards commission in ordering the repair, vacation or demolition of any building, structure, or premises, and any building, structure, or premises declared a nuisance under this article shall be made to comply with one or more of the following:

(1)     The building, structure, or premises shall be repaired in accordance with the current building code or other current codes applicable to the type of substandard conditions requiring repair.

(2)     Repairs shall be deemed feasible only if less than fifty percent (50%) of the building or structure must be repaired or replaced, and the repairs amount to less than fifty percent (50%) of the building or structure's value.

(3)     If the building or structure is in such a condition as to make it dangerous to the health, safety and welfare of the occupants, it shall be ordered vacated and secured from unlawful entry.

(4)     If the building or structure requires repairs over greater than fifty percent (50%) of its surface or amounting to greater than fifty percent (50%) of its value, it shall be demolished. Further, if a building cannot be repaired so that it will be brought into compliance with this article, it shall be demolished. Additionally, if the building as it stands presents an incurable fire hazard in violation of the terms of this article or any ordinance of the city or statute of the state, it shall be demolished. For the purpose of this article, the term “demolished” includes the cleaning and grading of the property and the removal of all debris and trash.

(5)     If the building or structure is not vacated, secured, repaired, removed or demolished, or the occupants are not relocated within the allotted time, the city may vacate, secure, remove or demolish the building or structure or relocate the occupants at its own expense, and may thereafter assess expenses, and establish a lien, against the property, as set forth in Section 3.1625.

(6)     If, after the expiration of the time allotted under Section 3.1615, the owner, lienholder or mortgagee fails to comply, the city may do or cause to be done the repairs necessary to bring the building into compliance with this article and only if the building is a residential building with ten (10) or fewer dwelling units. The repairs may not improve the building to the extent that the building exceeds the minimum standards, as defined by this article, and expenses may be assessed as provided in Section 3.1625.

   Secs. 3.1617–3.1619     Reserved
   Sec. 3.1620     Designation of Enforcement Officer

The chief of police, health officer and/or the chief code enforcement officer or their designated representatives are hereby directed and authorized to administer and enforce the provisions of this article. Nothing contained herein is meant to limit discretion of any enforcement officer in evaluating and directing compliance with this article.

   Sec. 3.1621     Enforcement Authority and Liability

The chief of police, the health officer, the chief code enforcement officer, or their authorized representatives, acting in good faith and without malice in the discharge of their duties, shall not thereby render themselves personally liable for any damage that may accrue to persons or property as a result of any act or by reason of any act or omission in the discharge of his duties. Any suit brought against the chief of police, health officer, chief code enforcement officer, or their authorized representatives, because of such act or omission performed in the enforcement of any provision of this article, shall be defended by legal counsel provided by the city until final termination of such proceedings.

   Sec. 3.1622     Twenty-Four Hour Abatement Under Certain Circumstances

Nothing in this article shall prohibit the requirement for abatement within twenty-four (24) hours, or a period of time less than as prescribed herein for public hearings, notice thereof, or the recovery of costs and establishment of liens, when a nuisance has been declared an immediate threat to health and safety by any enforcement personnel.

   Sec. 3.1623     Remedies

To enforce any requirement of this article, any enforcement personnel may gain compliance by any or all of the following:

(1)     Taking such action as the enforcement officer deems appropriate within the authorization provided for in this article or any other ordinances of the city.

(2)     Causing appropriate action to be instituted in a court of competent jurisdiction.

(3)     Ordering the abatement of the nuisance and assessing the costs of abatement against the property if the owner of the property does not abate same after the required notice.

(4)     Any other remedies permitted or authorized by law or in equity.

   Sec. 3.1624     Contracting for Abatement

Whenever the property owner, agent, or tenant fails to abate the nuisance within the time allowed, the enforcement officer is hereby authorized to contract with a contractor to perform such work as may be required to abate the nuisance.

   Sec. 3.1625     Recovery of Costs

(a)     Whenever the city enters upon the premises and causes any work to be performed to abate a nuisance, or if the building or structure is not vacated, secured, repaired, removed, or demolished, or if the occupants are not relocated within the allotted time, the city may take such action at its own expense, and a charge will be made to the property owner, agent, or tenant to recover the costs associated with the abatement. The charge shall be the actual cost of abatement, plus applicable sales taxes.

(b)     An administrative fee of $200.00 shall be assessed for each such charge.

(Ordinance 2010-003 adopted 6/8/10)

(c)     If the actual charge and the administrative fee are not paid to the city within thirty (30) days after billing, the city shall file a lien against the property. Said lien shall be filed in the Deed Records of Denton County, Texas. The charges shown on the lien shall bear interest at the rate of eight (8) percent per annum from the due date until paid. The lien shall be collected under the same terms and provisions of law as on city ad valorem taxes. The lien may be extinguished prior to foreclosure if the owner or other person having an interest in the legal title to the property reimburses the city for its expenses. If the notice is given pursuant to section 3.1610, and the opportunity to abate the nuisance or repair, remove, or demolish the building or structure is afforded to each mortgagee or lienholder under said section 3.1610, the lien is a privileged lien subordinate only to tax liens as authorized by Texas Local Government Code section 214.001(o). (Ordinance 2018-004, sec. 3, adopted 3/22/18)

   Sec. 3.1626     Penalty Clause

(a)     Any person violating or failing to comply with any provision, requirement or order issued pursuant to this article shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined as provided in Section 1.109 of this code. A separate offense shall be deemed committed upon each day during or on which a violation or failure to comply occurs or continues to occur.

(b)     In addition to any other remedies or penalties contained in this section, the city may enforce the provisions of this article pursuant to the applicable provisions of Texas Local Government Code, Chapter 54, which chapter provides for the enforcement of municipal ordinances.

(c)     Allegation and evidence of a culpable mental state is not required for the proof of an offense defined by this article.

   Sec. 3.1627     Judicial Review

Any owner, lienholder, or mortgagee aggrieved by an order of the building standards commission issued under this article shall be entitled to review by a state district court pursuant to Section 214.0012 of the Texas Local Government Code, as amended, and the city shall be entitled to an award of attorney's fees, costs and expenses, and judgment therefor, pursuant to and as authorized by Section 214.0012(h) of the Texas Local Government Code.

   Sec. 3.1628     Municipal Court Proceedings Not Affected

Action taken by the city pursuant to this article shall not affect the ability of the city to proceed under the jurisdiction of the city's municipal court.

(Ordinance 2010-003 adopted 6/8/10)

   ARTICLE 3.1700 TEMPORARY CONCRETE BATCH PLANT

   Sec. 3.1701     Purpose and Applicability

(a)     Purpose. The purpose of this article is to regulate the construction, erection, enlargement, alteration and maintenance of all temporary batch plants within the boundaries of the city in order to allow for privacy and security, maintain neighborhood appearance and enhance the general welfare of the community, and provide for practical safeguarding of life, health and property from hazards that may arise from improper construction or maintenance of temporary batch plants. Regulations are prescribed for the location and type of temporary batch plants to be used when required in the various zoning districts or in this article in accordance with the following standards.

(b)     Applicability. This article shall apply in all zoning districts within the city.

   Sec. 3.1702     Definitions

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:

Batching Plant (Concrete or Asphalt). A permanent manufacturing facility for the production of concrete or asphalt. No temporary use permit will be issued for a permanent manufacturing facility. See all regulations regarding the same in the comprehensive zoning ordinance.

Temporary Batch Plant. A temporary manufacturing facility for the production of concrete or asphalt during construction of a private or public project, to be removed when the project is completed.

   Sec. 3.1703     Temporary Use Permit Required

Except as otherwise provided in this article, it shall be unlawful for any person to operate a batching plant or temporary batch plant to mix, compound, and batch concrete, asphalt, or both, for a public or private project, without first having obtained a permit therefor from the city. Any person issued a temporary use permit for a temporary batch plant shall only be authorized to furnish concrete and/or asphalt to the specific project for which the permit is issued.

   Sec. 3.1704     Application for Temporary Use Permit

(a)     Each application for a temporary use permit shall be in writing to the building official of the city on company letterhead and shall set out the following:

(1)     The name of the applicant.

(2)     The applicant's permanent address.

(3)     The name and address of the firm or corporation the applicant represents.

(4)     A statement of the specific project applied for.

(5)     A specific site plan drawn to scale showing the following:

(A)     Equipment type, location and dimensions.

(B)     Any accessory building(s) and/or temporary trailers and their uses.

(C)     Portable restrooms and/or sewer plan.

(D)     Water plan (main lines, fire hydrants, etc.).

(E)     Electrical plan.

(F)     Distances from closest resident's property line.

(G)     Emergency access proposal.

(H)     All trucks storage must be 25 feet from property line.

(I)     TCEQ regulations require 100 feet from property line a complete physical separation between the batch plant and the potable water system must be shown either through the use of an air gap meeting TCEQ regulations or a reduced pressure zone (RPZ) device.

(J)     If there is re-fueling equipment onsite, specify the types of tanks and dispensing procedures.

(6)     A specific time period for which an applicant is requesting temporary use (days, weeks, months, etc.).

(7)     Hours of operation.

(8)     Applicant must obtain a TCEQ permit and provide a copy to the city attached to this application.

(b)     The building official shall deny or revoke the permit if he/she determines that all requirements of this article are not met.

(c)     The placement of a temporary batching plant for a private project is restricted to the site of the project (i.e., subdivision development, etc.).

   Sec. 3.1705     Fees Required

Permit fees for administering temporary uses and permits within the city under the terms of this article shall be set from time to time by the city council.

   Sec. 3.1706     General Requirements

(a)     If temporary power is required, it must be supplied overhead or underground directly to the temporary batch plant. No open wiring lying directly on the ground will be permitted.

(b)     The maximum time period for a permit for a temporary batch plant for a private project under this article shall be six months. A six-month extension may be granted. For a public project the time period shall be for the length of a single project.

(c)     The operator of the temporary batch plant has the burden of demonstrating to the satisfaction of the building official that the temporary parking spaces are adequately designed to accommodate the parking needs of the temporary batch plant.

(d)     All streets and roads leading from the batch plant to the construction site(s) shall be constructed of sufficient size and strength to accommodate loaded vehicles as determined by the city. In lieu of this requirement, the city may consider an escrow of a type determined by the city to cover the cost of repairs to city streets and facilities resulting from batch plant operations and delivery.

(e)     All raw materials shall be confined within a structure that would not allow seepage or runoff.

(f)     Any person issued a permit for a temporary batch plant shall:

(1)     Clear the site of equipment, material and debris upon completion of the project;

(2)     Repair or replace any public improvement that is damaged during the operation of the temporary batch plant;

(3)     Locate and operate the temporary batch plant in a manner to minimize unnecessary dust, noise, and odor (as illustrated by, but not limited to, covering trucks, hoppers, chutes, loading and unloading devices, and mixing operations) and shall maintain access roads and the temporary batch plant site with maximum control to keep it free of dust by watering those areas with an adequate water sprinkling system or, if necessary, by water truck; and

(4)     Submit a site plan to be approved by the city, containing at least:

(A)     A statement of the specific purpose of the batch plant including the specific time period during which the batch plant will be operated;

(B)     A specific site plan drawn to scale showing the specific dimensions and arrangement of the proposed temporary use; and

(C)     Provisions for parking, water service and sanitary facilities.

(g)     A permit may be denied, revoked or suspended for any of the following reasons:

(1)     Failure to comply with city codes;

(2)     Failure to be enclosed by a secure fence;

(3)     Being located within 200 feet of an occupied residential dwelling;

(4)     Excessive dust, odor, or noise; or

(5)     Seepage or runoff of raw materials.

(h)     An applicant may appeal a denial, revocation or suspension of a permit within 20 days of the decision to the city council whose decision shall be final and binding.

   Sec. 3.1707     Special Exceptions

The building official may grant exceptions to these requirements when, in his opinion, the exception will not adversely affect the health and safety of neighboring property owners, and good cause can be demonstrated.

   Sec. 3.1708     Responsibility of Corporations or Associations

(a)     In addition to prohibiting certain conduct by natural persons, it is the intent of this article to hold a corporation or association legally responsible for prohibited conduct performed by an agent acting in behalf of a corporation or association, and within the scope of his office or employment.

(b)     Any person found to be guilty of violating provisions of this article shall become liable to the city for any expense, loss, or damage occasioned by the city by reason of such violation.

(Ordinance 2016-0728-A adopted 7/28/16)

   ARTICLE 3.1800 WIRELESS IN THE RIGHT-OF-WAY

   Division 1. Generally

   Secs. 3.1801–3.1830     Reserved

   Division 2. Providers

   Sec. 3.1831     Purpose

The standards and procedures provided in this article are adopted to protect the public health, safety and welfare of the public by minimizing and reducing impacts to public safety within the city's public right-of-way and to minimize and reduce impacts to the city, its residents, and visitors, and for the general health and welfare of the public.

   Sec. 3.1832     Applicability

(a)     The provisions of this article apply to any sittings, installations, and collocations in, on, over, or under the public rights-of-way of network nodes, node support poles, micro network nodes, distributed antenna systems, transport facilities, microwave communications, or other wireless facilities, by whatever nomenclature, whether they are installed pursuant to V.T.C.A., Local Government Code ch. 284, or pursuant to an agreement with the city, or installed as may otherwise be allowed by law.

(b)     Providers shall comply with all generally applicable ordinances of the city pertaining to the occupancy and use of public right-of-way, unless such provisions conflict with this chapter, in which case this chapter prevails.

(c)     Providers shall adhere to the requirements found in this article for the placement of their facilities within the public right-of-way.

(d)     Any and all facilities selected for the installation of provider's wireless facilities shall not be considered “personal wireless service facilities” as that term is defined at 47 U.S.C. sec. 332(c)(7)(C)(ii), or a “base station” as that term is defined at 47 CFR sec. 24.5. The limitations applicable to local governments with regard to the placement, construction, and modification of “personal wireless service facilities” under 47 U.S.C. sec. 332(c)(7)(B) shall not apply to the city with regard to locations selected for wireless facilities in the public right-of-way. Nor shall any federal regulations limiting the authority of local governments with regard to the placement, construction, and modification of “base stations” apply to the city with regard to wireless facilities located in the public right-of-way.

   Sec. 3.1833     Definitions

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:

Abandon and its Derivatives. With regard to wireless facilities and transport facilities, and all supporting equipment installed in the public right-of-way (including by way of example but not limited to: poles, wires, conduits, manholes, handholes, cuts, network nodes, node support poles, ground equipment, or any portion thereof) that have been left by a provider in an unused or nonfunctioning condition for more than 120 consecutive days unless, after notice to provider, provider has established to the reasonable satisfaction of the city that the applicable facility, or portion thereof, is still in active use.

Affiliate. Each person or entity that falls into one or more of the following categories:

(1)     A person or entity having, directly or indirectly, a controlling interest in a provider;

(2)     A person or entity in which provider has, directly or indirectly, a controlling interest; or

(3)     A person or entity that directly or indirectly is controlled by a third party that also directly or indirectly controls a provider.

Antenna. Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

Applicable Codes.

(1)     All applicable city code provisions, policies and guidelines;

(2)     All applicable engineering and safety standards governing the installation, maintenance and operation of facilities and the performance of all work in or around public right-of-way and includes the most current versions of the National Electric Safety Code (“NESC”), the National Electrical Code (“NEC”), the V.T.C.A., Health and Safety Code ch. 752, the rules and regulations of the Occupational Safety and Health Act (“OSHA”); and

(3)     Any applicable lawful rules, requirements or orders now in effect or hereafter issued by the city or other authority having jurisdiction.

Chapter 284. Texas Local Government Code, chapter 284 (V.T.C.A., Local Government Code ch. 284), and as amended.

Collocate and Collocation. The installation, mounting, maintenance, modification, operation or replacement of network nodes in a public right-of-way on or adjacent to a pole.

Concealment or Camouflage. Any wireless facility or pole that is covered, blended, painted, disguised, camouflaged, or otherwise concealed such that it blends into the surrounding environment and is visually unobtrusive. A concealed or camouflaged wireless facility or pole includes any wireless facility or pole approved by the city as conforming to the surrounding area in which the wireless facility or pole is located and may include, but is not limited to, a wireless facility or pole that is hidden beneath a facade, blended with surrounding area design, painted to match the supporting area, or disguised with artificial tree branches.

Days. Calendar days unless otherwise specified.

Decorative Pole. Any streetlight pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specially designed informational or directional signage or temporary holiday or special event attachments, have been placed or are permitted to be placed according to city ordinances.

Disaster Emergency, or Disaster, or Emergency. An imminent, impending, or actual natural or human-induced situation wherein the health, safety or welfare of the residents of the city is threatened, and includes, but is not limited to, any declaration of emergency by city, state or federal governmental authorities.

Distributed Antenna System or DAS. A type of network node.

Easement. Includes, any public easement or other compatible use created by dedication, or by other means, to the city for public utility purposes, or any other purpose whatsoever. Easement shall include a private easement used for the provision of utilities.

Ground Equipment. Any part of a wireless facility or associated equipment that is located on the surface of the ground and, if included in an approved permit application or otherwise approved by the city in writing, an incidental structure to support the wireless facility.

Highway Right-of-Way. Right-of-way adjacent to a state or federal highway.

Location. The city-approved and lawfully permitted location for the network node or node support pole.

Macro Tower. A guyed or self-supported pole or monopole greater than the height parameters prescribed by chapter 284 and that supports or is capable of supporting antennas.

Micro Network Node. A network node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 11 inches.

Modification or Modify. Any work in the public right-of-way, or alteration of a wireless facility that is not substantially similar in size or is a change in the wireless facility's location in the public right-of-way or its physical position on the pole, except those alterations or changes that are excepted from requiring a permit under chapter 284, which do not constitute modifications hereunder.

Municipal Park. An area that is zoned or otherwise designated by city ordinance or has been dedicated to the city for use as a public park for the purpose of recreational activity.

Municipally Owned Utility Pole. A utility pole owned or operated by a municipally owned electric utility, as defined by V.T.C.A., Utility Code sec. 11.003, and located in a public right-of-way.

Network Node. Equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term:

(1)     Includes:

(A)     Equipment associated with wireless communications;

(B)     A radio transceiver, an antenna, a battery-only backup power supply, and comparable equipment, regardless of technological configuration; and

(C)     Coaxial or fiber-optic cable that is immediately adjacent to and directly associated with a particular collocation; and

(2)     Does not include:

(A)     An electric generator;

(B)     A pole; or

(C)     A macro-tower.

Network Provider.

(1)     A wireless service provider; or

(2)     A person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider:

(A)     Network nodes; or

(B)     Node support poles or any other structure that supports or is capable of supporting a network node.

Node Support Pole. A pole installed by a network provider for the primary purpose of supporting a network node.

Overlay District. A district located along Highway 377corridor, stimulating retail and commercial development, enhancing the quality of life in the city, protecting property values of properties within the overlay zone as well as those properties adjacent to it.

Permit. The city's written authorization for the use of public right-of-way or collocation on a service pole for a network provider to perform an action or initiate, continue, or complete a project pursuant to the requirements of this article. A permit shall include an excavation permit.

Pole. A service pole, municipally owned utility pole, node support pole, or utility pole.

Pre-Permit Survey. All work or operations required by applicable codes or the city to determine whether the proposed location of a network node has the structural and spatial ability to accommodate network nodes and related equipment. Such work includes, but is not limited to, field inspection, loading calculations, and administrative processing. The pre-permit survey shall be coordinated with the city and include the provider's professional engineer.

Private Easement. An easement or other real property right that is only for the benefit of the grantor and grantee and their successors and assigns.

Provider. The same meaning as “network provider.”

Public Right-of-Way or Right-of-Way. The area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the city has an interest. The term does not include:

(1)     A private easement; or

(2)     The airwaves above a public right-of-way with regard to wireless telecommunications.

School. An educational institution that offers a course of instruction for students in one or more grades from kindergarten through grade 12.

Service Pole. A pole, other than a municipally owned utility pole, owned or operated by the city and located in a public right-of-way, including:

(1)     A pole that supports traffic-control functions;

(2)     A structure for signage;

(3)     A pole that supports lighting, other than a decorative pole; and

(4)     A pole or similar structure owned or operated by the city and supporting only network nodes.

Small Cell. Is included as a type of network node.

Street. Only the paved portion of the public right-of-way used for vehicular travel, being the area between the back of the street curb to the back of the opposite street curb, or the area between the two parallel edges of the paved roadway for vehicular travel where there is no curb. A street is generally part of, but smaller in width than the width of, the entire right-of-way. A right-of-way may include sidewalks and public utilities, but a street does not. A street does not include the sidewalk, if present at the time of a permit application or if added later.

Streetlight Pole. Any standard-design concrete, fiberglass, metal, or wooden pole used for street lighting purposes, owned or operated by the city, that is capable of supporting network nodes.

TAS. Texas Accessibility Standards.

Traffic-Control Device. All signs, signals, markings, or devices placed or erected by the city or a public body having jurisdiction for the purpose of regulating, warning, or guiding traffic.

Traffic Signal. Any device, whether manually, electrically, or mechanically operated by which traffic is alternately directed to stop and to proceed.

Transport Facility. Each transmission path physically within a public right-of-way, extending with a physical line from a network node directly to the network, for the purpose of providing backhaul for network nodes.

Underground Utility District. An area where poles, overhead wires, and associated overhead or above ground structures have been removed and buried, or have been approved for burial underground pursuant to city ordinances, zoning regulations, state law, private deed restrictions, and other public or private restrictions, that prohibit installing above ground structures in a public right-of-way.

Utility Pole. A pole that provides:

(1)     Electric distribution with a voltage rating of not more than 34.5 kilovolts; or

(2)     Services of a telecommunications provider, as defined by V.T.C.A., Utilities Code sec. 51.002.

Wireless Facilities. Micro network nodes, network nodes, and node support poles, as defined herein and in chapter 284.

Wireless Service. Any service, using licensed or unlicensed wireless spectrum, including the use of wi-fi, whether at a fixed location or mobile, provided to the public using a network node.

Wireless Service Provider. A person or entity that provides wireless service to the public.

   Sec. 3.1834     Applications and Permitting

(a)     Access to Public Right-of-Way.

(1)     Subject to the provisions of this article, the city will issue permits to providers authorizing providers to install and maintain wireless facilities and transport facilities in or on public right-of-way in accordance with chapter 284. The locations at which provider's wireless facilities and transport facilities may be permitted, and the size and appearance of such wireless facilities, shall be determined in accordance with this article. If the requested location is to collocate a network node on a service pole, provider must also, prior to making application for such location, enter into a license agreement with the city for such collocation.

(2)     The city will issue a permit(s) to provider only when the city reasonably determines, in its sole judgment, that:

(A)     Provider meets all requirements set forth in this article; and

(B)     Such permit(s) comply with all applicable codes.

(3)     No use, however lengthy, of any of public right-of-way, and no payment of any fees or charges required under this article, shall create or vest in provider any easement or other ownership or property right of any nature in any portion of the public right-of-way. After issuance of any permit, provider shall be and remain a mere licensee. Neither this article, nor any permit granted under this article, shall constitute an assignment of any of the city's rights to the public right-of-way.

(4)     No part of provider's wireless facilities or transport facilities or other equipment constructed, modified, or erected, or placed on public right-of-way will become, or be considered by the city as being affixed to or a part of, the public right-of-way. All portions of provider's wireless facilities and transport facilities and other equipment constructed, modified, erected, or placed by provider on public right-of-way will be and remain the property of provider and may be removed by provider at any time.

(5)     Nothing in this article or in a permit granted hereunder shall be construed as granting provider any right to attach provider's wireless facilities or transport facilities at any specific location or facility or to compel the city to grant provider the right to attach at any specific location or facility.

(6)     This article does not in any way limit the city's right to locate, operate, maintain or remove service poles or other city equipment or property in the manner that the city deems appropriate.

(7)     Provider is obligated to obtain all necessary certification, permitting, and franchising from federal, state and local authorities prior to making any installations of wireless facilities or transport facilities.

(8)     Nothing in this article shall be construed to require the city to install, retain, extend, or maintain any service poles or other city equipment or property for use by the provider when such service poles or other city equipment or property are not needed for the city's own requirements.

(9)     Nothing in this article shall limit, restrict, or prohibit the city from fulfilling any agreement or arrangement regarding a service pole or other city equipment or property into which the city has previously entered, or may enter in the future, with other entities, including, but not limited to, agreements or arrangements for the removal of wireless facilities.

(10)     Nothing in this article or in any permit granted hereunder shall be construed to grant provider the authority to lease, grant, or otherwise assign any rights under its permit to any other party without the written consent of the city.

(11)     In the event the city determines to deny the use by provider of any particular service poles or other city equipment or property or any particular location in the public right-of-way, such denial shall not be construed to be a prohibition on, or to have the effect of prohibiting, the provision of wireless services. Any such denial by the city shall be undertaken in its capacity as proprietor of the public right-of-way, and not in its regulatory capacity.

(12)     Any permit granted under this article is limited to the uses specifically authorized in the permit and any other use shall be considered a material breach of this article. Nothing in this article or in any permit granted hereunder shall be construed to require the city to allow provider to use the public right-of-way after the termination of the applicable permit.

(b)     Fees and Charges.

(1)     Provider shall pay the city the following permit application fees:

(A)     Network Nodes. An application fee in an amount as set forth in the city's fee schedule (appendix A) for up to five network nodes in each application, and an additional amount as set forth in the city's fee schedule (appendix A) for each additional network node in the application (a maximum of 30 network nodes may be included in each application).

(B)     Node Support Poles. An application fee in an amount as set forth in the city's fee schedule (appendix A) for each pole.

(C)     Transport Facility. An application fee in an amount as set forth in the city's fee schedule (appendix A) for up to five network nodes in each application, and an additional amount as set forth in the city's fee schedule for each additional network node in the application (a maximum of 30 network nodes may be included in each application).

(2)     Provider shall pay the city the following recurring fees:

(A)     Network Nodes. An annual network node site rental fee in an amount as set forth in the city's fee schedule (appendix A) per network node site, with an annual adjustment as provided herein.

(B)     Transport Facility. A monthly transport facility rental fee in an amount as set forth in the city's fee schedule (appendix A) for each network node site, not to exceed the provider's monthly aggregate per-node compensation to the city. The network provider bears the burden to establish that the entity paying the city the transport facility rental is the same as, or an affiliate of, the entity paying the network node site rental rate.

(C)     Collocation of Network Nodes on Service Poles. An annual fee in an amount as set forth in the city's fee schedule (appendix A) per service pole.

(D)     All recurring fees are payable in advance and are due upon approval of the permit(s) by the city; no permit shall become effective until the fee has been paid. Initial amounts shall be prorated, based upon an annual due date of January 1st of each year.

(E)     For example, a network node permit approved by the city in August shall be effective upon payment in advance by the provider of five-twelfths of the annual rental rate. Thereafter, all payments of annually- recurring fees are due to the city by January 1st for the following calendar year.

(F)     For example, a transport facility permit approved by the city in August shall be effective upon payment by the provider of five months of the monthly rental amount. Thereafter, payments for 12 months at a time are due to the city by January 1st for the following 12 months.

(G)     Provider shall maintain and submit annually to the city with each payment to the city, an inventory of provider's network nodes, node support poles, node support poles connected by transport facilities, and collocated network nodes. This information shall include complete and accurate GIS location information, maps, plans, equipment inventories, and other records related to provider's facilities. An inventory shall be effective from January 1st of each year. The city reserves the right to compare the information contained on the inventory to any actual field inspection or survey conducted mutually. In the event that provider fails to submit an inventory, provider shall pay the city, in addition to the monthly- or annually-recurring fees, all actual costs associated with the city's performance of an inventory of provider's facilities.

(i)     If either provider or the city subsequently discovers that provider has failed to pay the entire or correct amount of compensation due, the correct amount shall be paid by provider within 30 days of such determination. Any overpayment to the city through error or otherwise will, at the sole option of the city, either be refunded to provider by the city within 30 days of such determination or offset against the next payment due from provider. Acceptance by either provider or the city of any payment due under this section shall not be deemed to be a waiver by either of any claim of violation of this article, nor shall the acceptance by either of any such payments preclude either from later establishing that a larger amount was actually due or from collecting any balance due. Nothing in this section shall be deemed a waiver by either provider or the city of its rights under law or equity.

(ii)     Interest on late payments shall be calculated in accordance with the interest rate for customer deposits established by the Public Utility Commission of Texas in accordance with the V.T.C.A., Utilities Code sec. 183.003, as amended for the time period involved.

(iii)     The compensation payable to the city hereunder shall not be offset by any payment by provider to the city relating to ad valorem taxes.

(H)     The network node site rental fee set forth herein shall be adjusted on an annual basis, by an amount equal to one-half of the annual change, if any, in the consumer price index. For purposes of this section, consumer price index shall mean the annual revised Consumer Price Index for All Urban Consumers for Texas, as published by the federal Bureau of Labor Statistics. The adjusted fee will be effective 60 days after the city provides notice to providers of the new rate.

(I)     The recurring fees set forth herein shall be exclusive of, and in addition to, all ad valorem taxes, special assessment for municipal improvements, and other lawful obligations of the provider to the city.

(J)     When the city at its own expense has removed or remediated provider's wireless facilities or transport facilities or provider is otherwise required to reimburse the city hereunder, the provider shall remit payment to the city within 30 days of the date of the invoice.

(K)     Upon provider's termination of the use of any service pole or public right-of-way in accordance with the terms of a permit and this article, and provider peaceably surrendering the service pole or public right-of-way to the city in the same condition it was in on the date the permit(s) was granted, excepting ordinary wear and tear, there will be no compensation due to the city by provider for such location.

   Sec. 3.1835     Installation in Right-of-Way

(a)     General Requirements.

(1)     Wireless facilities shall be concealed or enclosed as much as possible in an equipment box, cabinet, or other unit that may include ventilation openings. External cables and wires hanging off a pole shall be sheathed or enclosed in a conduit, so that wires are protected and not visible or are visually minimized to the extent possible.

(2)     Wireless facilities must conform to the city's aesthetic or design standards for the proposed location, if any, unless otherwise approved by the city.

(3)     Separation:

(A)     In order to minimize negative visual impact to the surrounding area, the hazard of poles adjacent to roadways, and the effect on property values, the city may deny a permit for a new node support pole if the requested location is within 45 linear feet of a street intersection or 300 linear feet per block face of existing utility pole or node support pole.

(B)     In residential zoning districts, network nodes and node support poles shall be located where the shared property line between two residential parcels intersects the public right-of-way.

(C)     In nonresidential zoning districts, wireless facilities shall be located between tenant spaces, storefront bays, or adjoining properties where their shared property lines intersect the public right-of-way.

(4)     Provider shall comply with and observe all applicable city, state, and federal historic preservation laws and requirements.

(5)     When a permit is issued provider shall install and maintain its wireless facilities and transport facilities, and all ground equipment, in accordance with the city's requirements and specifications. All of provider's wireless facilities, transport facilities, and ground equipment must comply with all applicable codes.

(6)     Provider shall be responsible for the installation and maintenance of its wireless facilities, transport facilities, and related ground equipment. Provider shall install such facilities in a good and workmanlike manner and in accordance with the requirements promulgated by the city, as such may be amended from time to time. Provider's work shall be subject to the regulation, control, and direction of the city. All work done in connection with the installation, operation, maintenance, repair, modification, and/or replacement of the wireless facilities, transport facilities, and related ground equipment shall be in compliance with all applicable city, state, and federal laws, ordinances, codes, rules and regulations.

(7)     Primary Use. The city shall not grant permits to locate wireless facilities on service poles or other city facilities or equipment that, in the city's sole determination, will adversely impact the primary use of the service pole or other city facility or equipment.

(8)     Visual Clutter. The city may not grant permits to wireless facilities that, in the city's sole determination, will contribute to visual clutter, taking into account the proximity of existing wireless facilities and the surrounding land use. There shall not be more than one network node on any one pole, unless otherwise approved, in writing, by the city.

(9)     Wireless facilities and ground equipment shall not impede pedestrian or vehicular traffic or render the public right-of-way noncompliant with applicable codes, including the Americans with Disabilities Act.

(10)     Height. A node support pole, modified utility pole, or service pole shall not exceed the height limitations of chapter 284 (V.T.C.A., Local Government Code sec. 284.103).

(b)     Placement Preference.

(1)     General Guidelines on Placement. In accordance with chapter 284, a network provider shall construct and maintain network nodes and node support poles in a manner that does not:

(A)     Obstruct, impede, or hinder the usual travel or public safety on a public right-of-way;

(B)     Obstruct the legal use of a public right-of-way by other utility providers;

(C)     Violate nondiscriminatory applicable codes;

(D)     Violate or conflict with the city's ordinances regulating the use and occupancy of public rights-of-way or this article; or

(E)     Violate the federal Americans with Disabilities Act of 1990 (42 U.S.C. sec. 12101 et seq.).

(2)     Order for Installation. The order for installation of network node attachments to existing facilities and new node support poles is as follows:

(A)     Existing Telephone or Electric Lines Between Existing Utility Poles. Micro network nodes shall only be lashed on existing telephone or electrical lines between existing utility poles (electric poles or telephone poles), with notice to the pole owner as required by the Federal Pole Attachment Act, and not placed on utility poles, node support poles, or service poles.

(B)     Existing utility poles (electric poles or telephone poles) shall be the preferred support facility for network nodes and related ground equipment.

(C)     Service Poles:

(1)     Nondecorative poles with a height of more than 20 feet, outside of historic district, scenic area, or scenic corridor.

(2)     Wireless facilities shall not be placed on service poles supporting traffic-control devices, traffic signals, or any structure supporting a traffic-control device or traffic signal, unless the city determines that such installation will not interfere with the integrity of the facility or the safety of the public. Any such installation allowed by the city will be in accordance with a separate agreement with the city.

(3)     Attachment to service poles used for street signage is discouraged.

(D)     New node support poles shall be the least preferred type of allowed facility for attachment of network nodes.

(E)     Ground equipment shall be minimal and the least intrusive design and placement as possible.

(c)     Overlay District.

(1)     Areas within the city that have been, or shall be in the future, designated by zoning or otherwise as overlay district, in which unique design and aesthetic standards are maintained and enforced by the city. Providers shall comply with and observe all applicable city, state and federal historic preservation laws and requirements.

(2)     Wireless facilities proposed within the overlay district shall be subject to review by the planning and zoning commission and the city council in order to satisfy that the installations are compatible with the regulations applicable to the overlay district.

(A)     As a condition for approval of permits for network nodes or node support poles in the overlay district, the city shall require reasonable design or concealment measures for such facilities. Therefore, with any request for installations in these areas, provider shall include proposed concealment measures in the permit application. Thereafter, provider shall implement the city-approved design concepts, and the use of camouflage or stealth materials as necessary in order to achieve compliance with the overlay district review, including following the design guidelines for the city's overlay district and other applicable regulations.

(B)     Prior to submitting an application for a permit for a wireless facility in the overlay district, provider shall meet with the city's planning and zoning commission or to discuss any potential design modifications appropriate for the installation.

(d)     School Zone Lights. Wireless facilities will not be allowed at locations that interfere with school zone flashing lights. The interference to be avoided is structural, radio frequency and visual.

(e)     Pedestrian Impacts.

(1)     The city shall not grant permits for wireless facilities that, in the city's sole determination, will adversely impact pedestrian movement or will be in violation of the Americans with Disabilities Act.

(2)     A minimum five-foot clear path of travel will be provided at all times.

(3)     Network nodes on new or existing poles must be installed at least eight feet above the ground.

(4)     If the network node attachment is projecting toward the street, it must be installed no less than 16 feet above the ground for the safety and protection of the public and vehicular traffic.

(5)     No protrusion from the outer circumference of the existing structure or pole shall be more than two feet.

(f)     New Node Support Poles.

(1)     Node support poles shall be set back a minimum of 20 feet from a traffic signal pole, and set back a minimum of 15 feet from any pedestrian ramp. The city may require a greater setback from these and other fixtures in the public right-of-way to ensure proper sight lines for public safety purposes.

(2)     Node support poles and accessory equipment shall be located at least ten feet from a driveway and at least 12 feet from the center of existing trees.

(g)     Decorative Poles.

(1)     Wireless facilities proposed for decorative poles must be camouflaged so as to not adversely affect the appearance of such poles.

(2)     Prior to submitting an application for a wireless facility on a decorative pole, provider shall meet with the city engineer or designee to discuss any potential design modifications appropriate for the installation.

(h)     Residential Areas and Municipal Parks.

(1)     Providers shall not be allowed, without the written consent of the city, to install a new node support pole in a public right-of-way located in a municipal park or adjacent to a street or thoroughfare that is:

(A)     Not more than 50 feet wide; and

(B)     Adjacent to single-family residential lots or other multifamily residences or undeveloped land that is designated for residential use by zoning or deed restrictions.

(2)     As a general rule, new node support poles will not be permitted in a public right-of-way that is in a municipal park or that is adjacent to a street or thoroughfare that is described in subsection (a), above.

(3)     The city may, but is not required to, issue a permit for the installation of a network node or node support pole in areas described in this section on terms that are discretionary and nondiscriminatory, and that have the effect of minimizing interference with the aesthetic qualities of such areas, and that are in keeping with this article.

(4)     If the city approves a permit for the installation of network nodes or node support poles in the areas described in this section, provider remains under an obligation to determine whether any private deed restrictions or other private restrictions are in place in the area, and to comply with same.

(i)     Undergrounding Requirements.

(1)     Areas within the city may be designated from time to time by the city as underground utility districts in accordance with filed plats, and/or in connection with the conversion of overhead to underground areas, as may be allowed by law.

(2)     Provider will comply with nondiscriminatory undergrounding requirements, including municipal ordinances, zoning regulations, state law, private deed restrictions, and other public or private restrictions, that prohibit installing above ground structures in a public right-of-way without first obtaining zoning or land use approval.

(3)     In underground utility districts as established by the city, provider shall neither allow, nor install transport facilities or any other overhead facilities serving to connect provider's network nodes. In all areas where overhead telecommunications or utility lines are, or are planned to be, buried below ground as part of a city project, all transport facilities or any other wireless facilities serving to connect provider's network nodes, including ground equipment, shall also be buried below ground.

(4)     If a permitted location subsequently becomes part of an underground utility district, provider's permit will be automatically revoked within 90 days after such designation, with removal of provider's micro network node, network node, node support pole, and related ground equipment at such location within 90 days of such designation, or as otherwise reasonably allowed by the city for the transition of overhead facilities.

(j)     Electrical Supply. Provider shall be responsible for obtaining any required electrical power service to the wireless facility. The city shall not be liable to the provider for stoppages or shortages of electrical power furnished to the wireless facility, including, without limitation, stoppages or shortages caused by any act, omission, or requirement of the utility serving the wireless facility or the act or omission of any other tenant or licensee of a city facility, or for any other cause beyond the control of the city. Provider shall not be entitled to any abatement of the rental fee for any such stoppage or shortage of electrical power.

(k)     Traffic Signals and Street Signage.

(1)     If allowed by the city, installations on traffic signals or street signage must not interfere with the integrity of same or the safety of the public.

(2)     Any installation allowed by the city will be in accordance with a separate agreement with the city.

(3)     Network nodes installed on any traffic signal or street signage structures shall be encased in a conduit separate from the traffic light or street signage elements, have an electric power connection separate from the traffic signal or street signage structure, and have an access point separate from the traffic signal or street signage structure.

(l)     Generators. Generators or back-up generators shall not be installed in the public right-of-way. Permits granted to provider for network nodes or transport facilities do not include authorization for the installation of generators or back-up generators in the public right-of-way.

(m)     Equipment Dimensions. With each application and with each request for a permit, and for each requested location, provider shall provide detailed drawings with calculations to show strict conformity to the size limitations as set forth herein and in chapter 284 for micro network nodes, network nodes, ground equipment, and maximum pole height.

(n)     Noninterference.

(1)     To the extent not inconsistent with chapter 284, provider's network nodes shall not cause harmful interference to the city's public service radio frequency, wireless network, or communications operations (“city operations”), or to third-parties' network nodes or similar third-party equipment in the public right-of-way or adjacent city property (“protected equipment”). If provider's network node interferes with city operations, then provider shall immediately cease operation of the network node causing said interference upon receiving notice from the city and refrain from operating until provider has eliminated the interference. If after notice provider continues to operate a network node that causes interference with city operations, such network node may be deemed unauthorized and subject to the remediation and termination provisions of this article. If provider's network node interferes with protected equipment, then provider shall take the steps necessary to correct and eliminate such interference within 24 hours of receipt of notice from the city. If provider is unable to resolve the interference issue within this timeframe, it will voluntarily power down the network node causing the interference, except for intermittent testing until such time as the interference is remedied.

(2)     Following installation or modification of a network node, the city may require provider to test the network node's radio frequency and other functions to confirm that it does not interfere with city operations or protected equipment. If, after notice, provider continues to operate a wireless facility that causes interference with city operations, such wireless facility may be deemed unauthorized and subject to the provisions of this article.

(o)     Tree Maintenance. Provider and its contractors and agents shall obtain written permission from the city before trimming trees hanging over its wireless facilities and transport facilities to prevent branches of such trees from contacting same. When directed by the city, provider shall trim under the supervision and direction of the city engineer or designee. The city shall not be liable for any damages, injuries, or claims arising from the provider's actions under this section.

(p)     Signage. Provider shall post its name, location identifying information, and emergency telephone number in an area on the wireless facility or ground equipment that is visible to the public. Corporate logos are prohibited as signage. Signage required under this section shall not exceed four inches by six inches, unless otherwise required by law (e.g., RF ground notification signs), or the city. Except as required by law, provider shall not post any other signage or advertising on the pole, the wireless facility, or any ground equipment cabinet or back-up battery. Signage must be updated by the provider within 90 days of a company name change of the provider.

(q)     Repair. Whenever the installation, placement, attachment, repair, modification, removal, operation, use, or relocation of the wireless facility or transport facility, or any portion thereof is required or permitted under this article, and such installation, placement, attachment, repair, modification, removal, operation, use, or relocation causes any service pole, and city facility or equipment, or any portion of the public right-of-way, to be damaged or to have been altered in such a manner as to make it unusable, unsafe, or in violation of any laws, provider, at its sole cost and expense, shall promptly repair and return such service pole, city facility or equipment, or public right-of-way to its original condition. If provider does not perform such work as described in this paragraph, then the city shall have the option, upon 15 days' prior written notice to provider or immediately if there is an imminent danger to the public, to perform or cause to be performed such reasonable and necessary work on behalf of provider and to charge provider for the reasonable and actual costs incurred by the city. Provider shall reimburse the city for the costs in accordance with this article.

(r)     Damage to Service Pole. Whenever a service pole or other city facility or equipment supporting a network node is damaged or knocked down, the city shall endeavor to provide prompt notice to provider of the need to remove or repair provider's network node. Upon receipt of notification from city of such damage, provider shall promptly respond and shall within one hour of such notification take such measures as are necessary to make the area safe, such as disconnection of the power source to the network node and removing damaged equipment from the public right-of-way, if applicable.

(s)     Access by Provider. Provider's access to public right-of-way shall be coordinated with the city to schedule such access at times that are least disruptive to the traveling public. The time of day and duration of provider's access shall be as determined by the city. For all activities that impact traffic, provider's access shall be conditioned upon city approval of provider's traffic-control plan. Provider shall maintain written logs of each instance when provider has accessed the public right-of-way; such log shall be made available to the city upon reasonable request by the city.

(t)     Graffiti Abatement. As soon as practical, but not later than 14 days from the date provider receives notice thereof, provider shall remove all graffiti on any of its wireless facilities, or ground equipment. The foregoing shall not relieve provider from complying with any visual blight ordinance or regulation.

   Sec. 3.1836     Private and Regulatory Compliance

(a)     Necessary Approvals. Provider shall be responsible for obtaining from the appropriate public and/or private authority or other appropriate persons any required authorization to construct, operate and/or maintain its wireless facilities or transport facilities on public property before it occupies any portion of the public right-of-way. The city retains the right to require evidence that appropriate authorization has been obtained before any permit is issued to provider. Provider's obligations under this article include, but are not limited to, the obligation to obtain all necessary approvals to occupy public/private rights-of-way and to pay all associated costs.

   Sec. 3.1837     Permit Application Procedures

(a)     Permit Required. Provider shall not install any wireless facility or transport facility in any portion of the public right-of-way, or materially modify the wireless facility or transport facility, without first applying for and obtaining a permit in compliance with the city's permit application process.

(b)     License Agreement Required. As a precondition to receiving a permit to collocate a network node on a service pole, provider shall enter into a license agreement with the city. The city engineer or designee shall have the authority to execute said agreement.

(c)     Permit Not Required.

(1)     Notwithstanding any other provision of this article, a permit is not required for:

(A)     Routine maintenance that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way;

(B)     Replacing or upgrading a network node or pole with a node or pole that is substantially similar in size or smaller and that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way; or

(C)     The installation, placement, maintenance, operation, or replacement of micro network nodes that are strung on cables between existing poles or node support poles, in compliance with the National Electrical Safety Code.

(2)     For purposes of this section, a network node or pole is considered to be “substantially similar” if:

(A)     The new or upgraded network node, including the antenna or other equipment element, will not be more than ten percent larger than the original permitted network node, provided that the increase may not result in the network node exceeding the size limitations provided by chapter 284;

(B)     The new or upgraded pole will not be more than ten percent higher than the original permitted pole, provided that the increase may not result in the pole exceeding the applicable height limitations prescribed by this article and chapter 284;

(C)     The replacement or upgrade does not include replacement of an existing node support pole; and

(D)     The replacement or upgrade does not defeat existing concealment elements of a node support pole.

(3)     The determination under this section of whether a replacement or upgrade is substantially similar is made by measuring from the dimensions of the network node or node support pole as approved by the city.

(4)     Notwithstanding the above, for activities that do not require a permit:

(A)     The provider shall give the city 30 days' advance notice of the work described above;

(B)     A network provider may replace or upgrade a pole only with the approval of the pole's owner; and

(C)     The size limitations may not in any event exceed the parameters prescribed by chapter 284 without the city's approval.

(d)     Permit Application Requirements.

(1)     Provider shall complete and submit to the city an application to locate a wireless facility or transport facility, using the application form provided by the city. The following items shall accompany the completed application form:

(A)     A one-time, nonrefundable application fee for review of the application in the amount provided for in the city's fee schedule (appendix A).

(B)     Documents necessary for the review or as requested by the city that are designed and sealed by a professional engineer, including but not limited to:

(i)     A map or site plan drawn to scale on 11-inch x 17-inch paper showing:

a.     The location of the proposed installation, including GIS or street address information;

b.     The proximity of the proposed installation to special districts of the city;

c.     The proximity to schools and municipal parks; and

d.     The proximity to utility poles, node support poles, and other network nodes on a service pole, if any, and depicting the sidewalks, and ramps onto sidewalks required by applicable codes, TAS, or other law, including the Americans with Disabilities Act, paved street surface and all existing underground and overhead utilities in the right-of-way and utility easements.

(ii)     Disclosure if the proposed installation is:

a.     In a residential area as described in section 13-77 [sic]; and

b.     In an underground utility district or other area with undergrounding requirements.

(iii)     A pre-permit survey completed, signed and sealed by a qualified and experienced professional engineer in accordance with the city's requirements, certifying that provider's wireless facilities or transport facilities can be installed on the identified structure in compliance with the applicable codes. The professional engineer's qualifications must include experience performing work for similar attachments on similar facilities.

(iv)     Detailed plans for each wireless facility, transport facility, and ground equipment, including representative drawings or pictures of the intended network node and other equipment, and proposed dimensions of same. Such plans shall show strict compliance with this article, with the size limitations set forth in chapter 284, with maximum pole height limitations set forth herein and in chapter 284, and with all applicable codes.

(v)     Certification that the proposed wireless facility complies with applicable regulations of the Federal Communications Commission and that the proposed wireless facility shall not cause any interference with the city's public safety radio system, traffic light system, or other city safety communications components.

(vi)     Certification that the proposed network node will be placed into active commercial service by or for a provider not later than the 60th day after the date the construction and final testing of the network node is completed.

(vii)     If the proposed location is on a service pole, provider shall have in place an executed license agreement with the city for the use of the service pole.

a.     The permit application will be denied if this license agreement is not in place at the time the application is submitted.

b.     Representative drawings or pictures of the intended network node as intended to be collocated on the service pole shall be provided.

c.     Engineering and construction plans and drawings related to the collocation of the network node on the service pole, including where the proposed transport facilities will be connected to the network node as electrical power connections, shall also be provided.

d.     If the applicant is not the same as the licensee identified in the license agreement, the licensee shall sign the permit application or provide a letter of agency satisfactory to the city. The licensee in such license agreement shall be presumed to be the owner of the network node and ground equipment, and shall be fully responsible for them and the rental fees payable to the city thereunder.

e.     If the requested location has already been approved for collocation by other entities, the application for the service pole shall be denied.

(viii)     If the proposed location lies within a highway right-of-way, the provider must provide evidence of a permit from the state or federal government.

(C)     The city's acceptance of the submitted design documents does not relieve provider and its engineer of full responsibility and liability for any errors and/or omissions in the engineering analysis.

(2)     The city shall review the permit application for completeness and notify the provider in writing if provider needs to submit additional or missing information. Such written notice will be provided within 30 days after receipt of a permit application for a network node or node support pole, or within ten days for a permit for a transport facility. The notice shall specifically identify the missing information. If provider does not submit the missing or additional information within 180 days of the notice, the provider's permit application for the requested location shall be deemed withdrawn.

(3)     The city shall review the permit application to determine if the requested location and proposed installation complies with all applicable codes.

(A)     If the city denies the permit application, it will notify provider by electronic mail on the date the city denies the application, stating the basis for the denial.

(B)     Provider may cure the deficiencies identified by the city within 30 days by resubmitting the application, along with payment to the city for the city's actual costs incurred in reviewing the resubmitted application.

(e)     Pre-construction Meeting. Provider or provider's contractor shall notify the city at least seven business days before the commencement of work, as the city may require a pre-construction conference. No work shall commence until the date provided to the city or as specifically authorized at the pre-construction meeting, if any.

(f)     Record Drawings. Upon passing final city inspection, provider shall furnish to the city the original drawings, revised to depict as-built conditions. The plans shall be marked “record drawings” on each sheet and shall be signed and dated by the provider's design engineer. The provider's design engineer shall certify that the plans accurately show the work as actually constructed.

(g)     Termination of Permits.

(1)     Unless the city grants an extension of time upon provider's request, a permit shall expire six months after approval by the city if installation pursuant to the permit has not begun by that date.

(2)     Any permit shall automatically terminate when provider ceases to have authority to construct and operate its wireless facilities or transport facilities on public right-of-way at the location covered by the permit. Provider shall, at its sole expense, remove the wireless facility or transport facility from the public right-of-way within 30 days. If provider fails to remove the wireless facility or transport facility within 30 days, the city shall have the right to remove the facilities at provider's expense.

(3)     Any permit shall automatically terminate for a wireless facility or transport facility that becomes nonfunctional and no longer fit for service (“nonfunctional attachment”). Provider shall, at its sole expense, remove any nonfunctional attachment, or part of a nonfunctional attachment, within 30 days of the wireless facility or transport facility becoming nonfunctional. If provider fails to remove a nonfunctional attachment within 30 days, the city shall have the right to remove the nonfunctional attachment at provider's expense.

(4)     Provider may at any time surrender any permit. Provider shall, at its sole expense, remove the wireless facility, transport facility, and related ground equipment from the public right-of-way within 30 days of provider's notice of surrender of a permit. If provider fails to remove the wireless facility, transport facility, or related ground equipment, or any part thereof from the public right-of-way within 30 days, the city shall have the right to remove same at provider's expense.

   Sec. 3.1838     Removal of Wireless Facilities and Ground Equipment

(a)     Removal Upon Notice from the City for City Project.

(1)     The city may determine that it is necessary for provider to remove or relocate its micro network node, network node, node support pole, transport facilities, and related ground equipment, or any portion thereof, from the public right-of-way or a service pole for city projects. Whenever the city reasonably determines that relocation or removal is needed for the construction, completion, repair, widening, relocation, or maintenance of, or use in connection with, any city construction or maintenance project of a street or public right-of-way, or service pole, provider shall remove or relocate its facilities at its sole cost and expense, except as otherwise provided in existing state or federal law.

(2)     Provider shall complete the removal or relocation within 30 days after receiving written notice from the city, provided the city or a third party has not prevented provider from completing such work. Provider shall notify the city in writing within ten days after the removal or relocation has been completed.

(3)     If provider fails to remove or relocate the micro network node, network node, node support pole or related ground equipment, or portion thereof as requested by the city within 30 days after receiving written notice from the city, the city shall have the right to remove, or to have removed, the micro network node, network node, node support pole or related ground equipment, or portion thereof, at provider's expense.

(4)     The city shall not be responsible or liable for damage to provider's wireless facilities, transport facilities, or related ground equipment except to the extent provided in this article.

(5)     Network provider shall reimburse the city for the city's actual cost of removal of wireless facilities, transport facilities, and related ground equipment within 30 days of receiving the invoice from the city.

(b)     Removal Required by the City for Safety and Imminent Danger Reasons.

(1)     Network provider shall, at its sole cost and expense, promptly disconnect, remove, or relocate the applicable wireless facility, transport facility, and related ground equipment within the timeframe and in the manner required by the city if the city reasonably determines that the disconnection, removal, or relocation of any part of a wireless facility, transport facility, or related ground equipment:

(A)     Is necessary to protect the public health, safety, welfare or public property;

(B)     If such wireless facility, transport facility, or related ground equipment, or portion thereof, is adversely affecting proper operation of service poles or other city facilities or equipment; or

(C)     If provider fails to obtain all applicable licenses, permits and certifications required by law for its wireless facilities, transport facilities, and related ground equipment, or for the use of any location under applicable codes, except to the extent not consistent with chapter 284.

(2)     If the city reasonably determines that there is imminent danger to the public, then the city may immediately disconnect, remove, or relocate the applicable wireless facilities, transport facilities, or related ground equipment at the provider's sole cost and expense in strict accordance with the city's ordinances, except to the extent not consistent with chapter 284.

(c)     Repair by Provider. Provider shall repair any damage to any service pole, public right-of-way, city facility or equipment, and the property of any third party resulting from provider's removal or relocation activities (or any other of provider's activities hereunder) within ten days following the date of such removal or relocation, at provider's sole cost and expense, including restoration of the service pole or other city facility or equipment and any portion of the public right-of-way to substantially the same condition as it was immediately before the date provider was granted a permit, including restoration or replacement of any damaged trees, shrubs, or other vegetation. Such repair, restoration and replacement shall be subject to the sole, reasonable approval of the city.

   Sec. 3.1839     Abandonment or Removal

(a)     Abandonment by the City.

(1)     If the city desires at any time to abandon or remove any service pole or other city facility or equipment to which provider's wireless facilities or transport facilities are attached, the city shall give provider notice in writing at least 60 days prior to the date on which the city intends to abandon or remove such service pole or other city facility or equipment. If, following the expiration of the 60-day period, provider has not removed all of provider's wireless facilities or transport facilities, [the city] shall have the right to remove same at provider's expense.

(2)     If any service pole or other city facility or equipment must be removed by reason of any federal, state, county, municipal or other governmental requirement, including, but not limited, to underground conversion, or the requirement of a property owner, provider shall remove its wireless facilities or transport facilities from the affected location, at provider's expense, within 60 days of receipt of written notice from the city. If provider does not remove its wireless facilities or transport facilities within the 60-day period, the city shall have the right to remove same at provider's expense.

(3)     Provider shall not abandon in place any wireless facilities, transport facilities, or related ground equipment, underground conduit, or any portion thereof.

(b)     Removal by Provider. If provider removes or relocates a wireless facility, transport facility, or ground equipment at its own discretion, it shall notify the city engineer in writing not less than ten business days prior to removal or relocation. Provider shall obtain all permits required for relocation or removal of its wireless facilities, transport facilities, or ground equipment prior to relocation or removal.

   Sec. 3.1840     Inspection of Facilities

(a)     Notice to City Prior to Beginning Work. Provider must give seven business days' notice to the city prior to the start of work. The city reserves the right to inspect new and existing wireless facilities, transport facilities, and related ground equipment at any time.

(b)     Inspections. The city's inspections, or the failure to do so, shall not operate to impose upon the city any liability of any kind whatsoever or relieve provider of any responsibility, obligations or liability for provider's wireless facilities, transport facilities, or related ground equipment, whether assumed under provider's permit or otherwise existing.

(c)     Inspection Findings - Notice. The city shall provide written notice to provider if an inspection reveals that all, or any part, of provider's wireless facilities, transport facilities, or related ground equipment are installed, used, or maintained in violation of this article or provider's permit. Provider agrees to bring its wireless facilities, transport facilities, and related ground equipment into full compliance with this article and its permit within 30 days of receipt of notice from the city. If provider does not correct the violation(s) within 30 days as required, the city may correct the conditions at provider's expense. When the city reasonably believes that the violation(s) poses an immediate threat to the safety of any person, interferes with the performance of the city's obligations, or poses an immediate threat to the physical integrity of service poles or other city facilities or the public right-of-way, the city may perform work and/or take action as reasonably necessary to eliminate such immediate threat without first giving written notice to provider. The city will advise provider in writing of the work performed or the action taken, including photographic evidence substantiating the violation and its cause. Provider shall pay the city for all costs the city incurs in performing the work or taking the action.

   Sec. 3.1841     Liability and Indemnification

(a)     City Reserves the Right to Maintain and Operate Public Rights-of-Way. The city reserves the right to maintain and operate public rights-of-way in the manner it deems best. Provider agrees to use public rights-of-way at provider's sole risk. The city shall exercise reasonable care to avoid damaging provider's wireless facilities and the city shall report to provider the occurrence of any such damage caused by the city's employees, agents or contractors.

(b)     Indemnification. Provider shall indemnify the city as provided in chapter 283, V.T.C.A., Local Government Code sec. 283.057(a) and (b).

(c)     Liability. No provision of this article is intended, or shall be construed, to be a waiver for any purpose by the city of governmental immunity or other provisions of state law limiting municipal liability. No indemnification provision contained in this article under which provider indemnifies the city shall be construed in any way to limit any other indemnification provision contained in this article or state law.

   Sec. 3.1842     Duties and Responsibilities

(a)     Provider Assumes All Risks. The city does not warrant the condition or safety of public rights-of-way or service poles. Any provider issued a permit to occupy public rights-of-way or service poles has an obligation to inspect public rights-of-way or service poles, prior to commencing any work. By accepting a permit from the city for occupancy of public right-of-way, provider assumes all risks of any damage, injury, or loss of any nature whatsoever caused by or in connection with the use of public rights-of-way.

(b)     Permit Acquaintance. By accepting a permit, provider warrants that it has acquainted, or will fully acquaint, itself and its employees and/or contractors and agents with the conditions relating to the work that provider will undertake under the permit and that it fully understands or will acquaint itself with the facilities, difficulties, and restrictions attending the execution of such work.

(c)     City Makes No Express or Implied Warranties. The city makes no express or implied warranties with regard to public rights-of-way, service poles, or other city facilities or equipment, all of which warranties are hereby disclaimed. The city expressly disclaims all other warranties, express or implied including, but not limited to, implied warranties of merchantability or fitness for a particular purpose.

(d)     Interruption of Service by Damaging Equipment. In the event that provider shall cause an interruption of service by damaging or interfering with any equipment of the city, provider at its expense shall immediately do all things reasonable to avoid injury or damages, direct and incidental, resulting from the interruption and shall notify the city immediately. To the extent permitted by state law, provider shall be liable for all direct costs resulting from such damage and any necessary repairs.

(e)     Severability. If V.T.C.A., Local Government Code ch. 284, or any part thereof is at any time, in full or in part, revoked, found to be unconstitutional, struck down, preempted or otherwise becomes void or invalid, then permits granted under this article shall automatically terminate, unless an extension is granted by the city. This section shall constitute notice that in such case, all network nodes are to be removed within 90 days from the event that affects chapter 284. The parties agree they will negotiate in good faith to assure an ease of transitions as to those parts of chapter 284 that have been adjudicated as unenforceable, as well as continued compliance with those parts that may remain enforceable, if any.

   Sec. 3.1843     Emergency Contact

(a)     Emergency Contact. Provider shall maintain a staffed 24-hour emergency telephone number, not available to the general public, where the city can contact provider to report damage to provider's wireless facilities, transport facilities, or ground equipment or other situations requiring immediate communications between the parties. Such contact person shall be qualified and able to respond to the city's concerns and requests.

(b)     Purpose. The standards and procedures provided in this article are adopted to protect the public health, safety, and welfare of the public by minimizing and reducing impacts to public safety within the city's public right-of-way and to minimize and reduce impacts to the city, its residents, and visitors, and for the general health and welfare of the public.

   Secs. 3.1844–3.1860     Reserved

   Division 3. Contractors

   Sec. 3.1861     Applicability

(a)     The provisions of this article apply to any installations in, on, over, or under the public rights-of-way, whether they are installed pursuant to state law, or pursuant to an agreement with the city.

(b)     The contractors shall comply with all generally applicable ordinances of the city and adhere to the requirements found in this article for the placement of their facilities within the public right-of-way.

   Sec. 3.1862     Definitions

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:

Construction. Any work performed above the surface, on the surface, or beneath the surface of a public right-of-way, including, but not limited to, installing, servicing, repairing, upgrading, or modifying any facility(s) in, above or under the surface of the public right-of-way, and restoring the surface and subsurface of the public right-of-way. The word “construction” does not include the installation of facilities necessary to initiate service to a customer's property, or the repair or maintenance of existing facilities unless such installation, repair, or maintenance requires the breaking of pavement, excavation or boring.

Contractor. Any person or group of persons using the public right-of-way to locate a facility. This term includes network providers, as defined in article IV of this chapter [division 2 of this article], and in the event this division conflicts with article IV of this chapter, the provisions in article IV of this chapter [division 2 of this article] shall apply. This term does not include the city.

Day. A calendar day, unless otherwise specified.

Detour. An alternate route in which vehicular traffic is directed around a street which is closed.

Director. The department director designated by the city manager or designee to administer this chapter.

Emergency. An unforeseen combination of circumstances or the resulting state that calls for immediate action.

Facility or Facilities. Shall include, but not be limited to, any and all cables, pipelines, splice boxes, tracks, tunnels, utilities, vaults, manholes, conduits, control boxes, fiber optic cables, power sources, and other appurtenances, equipment, structures, plant or tangible things owned, leased, operated, or licensed by an owner, that are located or are proposed to be located in the public right-of-way.

Manual. The Manual on Uniform Traffic-Control Devices.

Municipal Authorization. The individual grant to use the public rights-of-way issued by the city and accepted by the individual owner in accordance with the ordinances of the city, a franchise agreement, any other type of agreement, or a license, or under operation of state law that provides a specific grant of authority to use the public rights-of-way.

Owner. Any person who owns any facility or facilities that are, or are proposed to be, installed or maintained in the public right-of-way. Included within this definition is the owner's contractor, subcontractor, agent, or authorized representative.

Permit. The permit, pursuant to this article, that must be obtained before an owner may construct facilities in a public right-of-way. A permit allows the holder to construct facilities in that part of the public right-of-way described in such permit.

Person. Any natural or corporate person, business association, or other business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision (excluding the city), a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.

Public Right-of-Way or Right-of-Way. The area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the city has an interest. The term does not include:

(1)     A private easement; or

(2)     The airwaves above a public right-of-way with regard to wireless telecommunications.

Responsible Person. The city manager or his or her designated representative.

Streets and Alleys. A traveled way for vehicular traffic, whether designated as a street, alley, highway, thoroughfare, parkway, throughway, road, avenue, boulevard, lane, place, or however otherwise designated.

Alleys. Minor traveled ways which are used primarily for vehicular service access to the back or the side of properties otherwise abutting on a street.

Collector Streets. Those which carry traffic from minor streets to the major system of arterial streets and highways including the principal entrance streets of a residential development and streets for circulation within such a development.

Major Thoroughfares or Arterial Streets. Principal traffic arteries more or less continuous across the city which are intended to connect remote parts of the city and which are used primarily for fast or heavy volume traffic and shall include, but not be limited to each street designated as a major street on the thoroughfare plan.

Minor Streets. Those which are used primarily for access to abutting residential properties which are intended to serve traffic within a limited residential district.

Cross reference–Definitions and rules of construction generally, sec. 1.104.

   Sec. 3.1863     Applications and Permitting

(a)     Public Right-of-Way Occupancy.

(1)     Prior to the city issuing a permit for installing facilities in, on, or over the public rights-of-way, all persons must first obtain a separate municipal authorization.

(2)     This article does not constitute or create authority to place, reconstruct, or alter facilities in, on, under, or over the public rights-of-way, nor to engage in construction, excavation, encroachments, or work activity within or upon any public right-of-way, and said authority must be obtained in accordance with the terms of this article.

(3)     Any person with a current, unexpired franchise, municipal authorization, license or other authorization from the city or state to use the public right-of-way (herein referred to as a “existing authorization”) that is in effect at the time this article takes effect, shall continue to operate under and comply with that existing authorization, and in the event this article conflicts with existing authorization, the more restrictive provision shall apply.

(4)     Permittee accepts at its own risk that city may make use of the public rights-of-way in a manner that is inconsistent with permittee's placement and use of its facilities located in the public rights-of-way, and in that event permittee shall not be entitled to compensation from city.

(b)     Registration.

(1)     In order to protect the public health, safety and welfare, all owners of facilities in the public right-of-way will register with the city. Registration will be issued in the name of the person who owns the facilities. Registration must be renewed on or before January 31st of each year. The city shall provide written notification of this renewal requirement. If a registration is not renewed, and subject to 60 days notification to the owner, the facilities of the owner will be deemed to have been abandoned. When any information provided for the registration changes, the owner will inform the city of the change no more than 30 days after the date the change is made.

(2)     Registration shall include:

(A)     The name, address(es) and telephone number(s) of the owner;

(B)     The names, address(es) and telephone number(s) of the contact person(s) for the owner;

(C)     The name(s) and telephone number(s) of an emergency contact who shall be available 24 hours a day;

(D)     The source of the owner's municipal authorization (e.g., franchise, state law, etc.). If the owner is a certificated telecommunications provider, or holds a state-issued certificate of franchise authority, the owner must provide the certificate number of same issued by the Texas Public Utility Commission; and

(E)     Owner shall include with information presented at time of registration detailed drawings reflecting owner's installations on private property so that city may verify compliance with city ordinances related to zoning, development, building regulations, and setbacks, and for easement verification.

(3)     The owner shall submit two-year projections of its plans for the construction of facilities in the city at the time of registration renewal; and

(4)     Registration shall be a prerequisite to issuance of a permit. Each owner shall update and keep current its registration with the city at all times.

(c)     Permit Required. Contractor shall not install any facility in any portion of the public right-of-way without first applying for and obtaining a permit in compliance with the city's permit application process.

(d)     Permit Not Required.

(1)     Notwithstanding any other provision of this article, a permit is not required for routine maintenance that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way.

(2)     Notwithstanding the above, the contractor shall give the city 30 days' advance notice of the work described above.

(e)     Permits - General.

(1)     Subject to the provisions of this article, the city will issue permits to contractors authorizing contractors to install and maintain facilities in or on public right-of-way. The locations at which contractors' facilities may be permitted, and the size and appearance of such facilities, shall be determined in accordance with this article.

(2)     The city will issue a permit(s) to contractor only when the city reasonably determines, in its sole judgment, that:

(A)     Contractor meets all requirements set forth in this article; and

(B)     Such permit(s) comply with all applicable codes.

(3)     No use, however lengthy, of any of public right-of-way, and no payment of any fees or charges required under this article, shall create or vest in contractor any easement or other ownership or property right of any nature in any portion of the public right-of-way. After issuance of any permit, contractor shall be and remain a mere licensee. Neither this article, nor any permit granted under this article, shall constitute an assignment of any of the city's rights to the public right-of-way.

(4)     No part of contractors' facilities or other equipment constructed, modified, or erected, or placed on public right-of- way will become, or be considered by the city as being affixed to or a part of, the public right-of-way. All portions of contractors' facilities and other equipment constructed, modified, erected, or placed by contractor on public right-of-way will be and remain the property of contractor and may be removed by contractor at any time.

(5)     Nothing in this article or in a permit granted hereunder shall be construed as granting contractor any right to locate contractors' facilities at any specific location or to compel the city to grant contractor the right to locate at any specific location.

(6)     This article does not in any way limit the city's right to locate, operate, maintain or remove city-owned poles or other city equipment or property in the manner that the city deems appropriate.

(7)     Contractor is obligated to obtain all necessary certification, permitting, and franchising from federal, state and local authorities prior to making any installations of facilities.

(8)     Nothing in this article or in any permit granted hereunder shall be construed to grant contractor the authority to lease, grant, or otherwise assign any rights under its permit to any other party without the written consent of the city.

(9)     In the event the city determines to deny the use by contractor of any particular location in the public right-of-way, such denial by the city shall be undertaken in its capacity as proprietor of the public right-of-way, and not in its regulatory capacity.

(10)     Any permit granted under this article is limited to the uses specifically authorized in the permit and any other use shall be considered a material breach of this article. Nothing in this article or in any permit granted hereunder shall be construed to require the city to allow contractor to use the public right-of-way after the termination of the applicable permit.

(11)     Emergency responses related to existing facilities may be undertaken without first obtaining a permit; however, the department shall be notified in writing within two business days of any construction related to an emergency response, including a reasonably detailed description of the work performed in the public right-of-way. An updated map of any facilities that were relocated, if applicable, shall be provided within 90 days.

(12)     A permit is not required under section 3.1861 if the activity in the public right-of-way consists exclusively of a residential service connection on the same side of the public right-of-way, if the connection does not require a pavement cut.

(13)     A copy of the permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the responsible person at all times when construction work is occurring.

(14)     All construction work authorized by permit must be completed in the time specified in the permit. If the work cannot be completed in the specified time period, the owner may request an extension of the time period from the responsible person. The responsible person will use his/her best efforts to approve or disapprove a request for permit as soon as possible. If the request for the extension is made prior to the expiration of the permit, work may continue while the request is pending.

(15)     No owner or contractor shall perform construction, excavation, or work in an area larger or at a location different than that specified in the permit or permit application. If, after construction, excavation, or work is commenced under an approved permit, it becomes necessary to perform construction, excavation, or work in a larger or different area than originally requested under the application, the owner or contractor shall notify the responsible person immediately and, within 24 hours, shall file a supplementary application for the additional construction, excavation, or work. If the responsible person approves the additional construction, excavation, or work, such approval will be noted in the permit file and will constitute an amendment to the permit.

(16)     A copy of any permit or approval issued by federal or state authorities for work in federal or state rights-of-way located in the city shall be provided, if requested by the department.

(f)     Permit Application.

(1)     The permit will be in the name of the owner of the facilities to be constructed. The permit application must be completed and signed by a representative of the owner of the facilities to be constructed.

(2)     Any person requesting a permit will provide the responsible person with documentation in the format specified by the department, at the time of permit application submittal, describing:

(A)     The name, telephone number, local address and principal place of business of the owner.

(B)     The name and day and night telephone numbers of the engineer, foreman, or other person who will be in charge of the construction or repairs for which the permit is requested.

(C)     The times of the day and total number of days the owner seeks to block the roadway.

(D)     The proposed location and route of all facilities to be constructed or installed and the owner's plan for public right-of-way construction. For lines longer than 100 feet, the line must be stationed.

(E)     Three sets of engineering plans, including plan and profile, which will be on a standard engineering scale, acceptable to the department, unless waived by the responsible person. When required by the Texas Engineering Practice Act, as amended, the plans must be sealed by a professional engineer licensed to practice in the state.

(F)     A map or site plan drawn to scale on 11-inch x 17-inch paper showing:

(i)     The location of the proposed installation, including GIS or street address information;

(ii)     The proximity of the proposed installation to special districts of the city;

(iii)     The proximity to schools and municipal parks; and

(iv)     The proximity to poles, if any, and depicting the sidewalks, and ramps onto sidewalks required by all applicable regulations, the Texas Accessibility Standards, or other law, including the Americans with Disabilities Act, paved street surface and all existing underground and overhead utilities in the right-of-way and utility easements.

(G)     Detail of the location of all public rights-of-way and utility easements that owner plans to use.

(H)     Detail of existing utilities located in the public rights-of-way, including the city's utilities, in relationship to owner's proposed route.

(I)     Detail of what owner proposes to construct including size of facilities, materials used, such as pipe size, number of ducts, valves, etc.

(J)     Detail of plans to remove and replace asphalt or concrete in public rights-of-way.

(K)     Drawings of any bores, trenches, handholes, manholes, switch gear, transformers, pedestals, etc., including depth located in public right-of-way.

(L)     Typical details of manholes and/or handholes owner plans to use or access.

(M)     Complete legend of drawings submitted by owner, which may be provided by reference to previously submitted documents acceptable to the city.

(N)     The construction methods to be employed for the protection of existing structures, fixtures, and facilities within or adjacent to the public right-of-way, and the dates and times work will occur, all of which (methods, dates, times, etc.) are subject to approval of the responsible person.

(O)     A description of standard barricading showing placement of barricades, cones and informational signs used on the project. In most cases, layouts will be similar to those shown in the latter part of the manual. Deviation from the manual will be allowed only with approval of the responsible person. The description will include a listing of all persons directly responsible for the safety on each project to include an address or a telephone listing at which such person can be reached at any hour of the day if a hazardous condition develops. This description shall be provided to the city a minimum of five business days prior to the start of construction.

(P)     Proof of insurance and bonds as required by the city.

(Q)     Disclosure if the proposed facility is:

(i)     In a residential area; or

(ii)     In an underground utility district or other area with undergrounding requirements.

(R)     A pre-permit survey completed, signed and sealed by a qualified and experienced professional engineer in accordance with the city's requirements, certifying that contractor's facilities can be installed on the identified structure in compliance with all applicable codes, regulations and laws. The professional engineer's qualifications must include experience performing work for similar attachments on similar facilities.

(S)     Detailed plans for each facility including representative drawings or pictures of the intended equipment and proposed dimensions of same.

(T)     Certification that the proposed facility complies with applicable regulations of the Federal Communications Commission and that the proposed facility shall not cause any interference with the city's public safety radio system, traffic light system, or other city safety communications components.

(U)     Certification that the proposed facility will be placed into active commercial service by or for the contractor not later than the 60th day after the date the construction and final testing of the facility is completed.

(V)     If applicable, contractor shall have in place an executed license agreement with the city.

(i)     The permit application will be denied if this license agreement is not in place at the time the application is submitted.

(ii)     Engineering and construction plans and drawings related to the facility, including where the proposed facility will be connected, shall also be provided.

(iii)     If the applicant is not the same as the licensee identified in the license agreement, the licensee shall sign the permit application or provide a letter of agency satisfactory to the city. The licensee in such license agreement shall be presumed to be the owner of the facility and related equipment, and shall be fully responsible for them and the fees payable to the city thereunder.

(W)     If the proposed location lies within a highway right-of-way, the contractor must provide evidence of a permit from the state or federal government.

(X)     Any other information deemed reasonably necessary by the responsible person.

(3)     The city's acceptance of the submitted design documents does not relieve the contractor and its engineer of full responsibility and liability for any errors and/or omissions in the engineering analysis.

(4)     The city shall review the permit application for completeness and notify the contractor in writing if the contractor needs to submit additional or missing information. Such written notice will be provided within 30 days after receipt of a permit application for a facility. The notice shall specifically identify the missing information. If the contractor does not submit the missing or additional information within 180 days of the notice, the contractor's permit application shall be deemed withdrawn.

(5)     The city shall review the permit application to determine if the requested location and proposed installation complies with all applicable codes.

(A)     If the city denies the permit application, it will notify the contractor by electronic mail on the date the city denies the application, stating the basis for the denial.

(B)     The contractor may cure the deficiencies identified by the city within 30 days by resubmitting the application, along with payment to the city for the city's actual costs incurred in reviewing the resubmitted application.

(g)     Pre-Construction Meeting. The contractor shall notify the city at least seven business days before the commencement of work, as the city may require a pre-construction conference. No work shall commence until the date provided to the city or as specifically authorized at the pre-construction meeting, if any.

(h)     Record Drawings. Upon passing final city inspection, the contractor shall furnish to the city the original drawings, revised to depict as-built conditions. The plans shall be marked “record drawings” on each sheet and shall be signed and dated by the contractor's design engineer. The contractor's design engineer shall certify that the plans accurately show the work as actually constructed.

(i)     Termination of Permits.

(1)     Unless the city grants an extension of time upon the contractor's request, a permit shall expire six months after approval by the city if installation pursuant to the permit has not begun by that date.

(2)     Any permit shall automatically terminate when the contractor ceases to have authority to construct and operate its facilities on public right-of-way at the location covered by the permit. The contractor shall, at its sole expense, remove the facility from the public right-of-way within 30 days. If the contractor fails to remove the facility within 30 days, the city shall have the right to remove the facilities at the contractor's expense.

(3)     Any permit shall automatically terminate for a facility that becomes nonfunctional and no longer fit for service. The contractor shall, at its sole expense, remove any such facility, or part of such facility, within 30 days of the facility becoming nonfunctional. If the contractor fails to remove the nonfunctional facility within 30 days, the city shall have the right to remove same at the contractor's expense.

(4)     The contractor may at any time surrender any permit. The contractor shall, at its sole expense, remove the facility from public right-of-way within 30 days of the contractor's notice of surrender of a permit. If the contractor fails to remove the facility or any part thereof from the public right-of-way within 30 days, the city shall have the right to remove same at the contractor's expense.

(j)     Permit Application - Special Requirements.

(1)     At the time of permit approval or at any time after a permit is issued under this article, the responsible person may require any or all of the following:

(A)     The use or specific location of additional barricades, signals, signs or other traffic-control or safety devices, or the use of special traffic-control or safety procedures.

(B)     That the work be performed only at certain hours during the day or night, or during specified days of the week.

(C)     That only a specified area, or not more than a specified number of lanes, shall be blocked at the same time or at specified times of the day.

(D)     That materials and equipment used in the work site and dirt removed from any excavation be located other than in the vehicle lanes of such roadway.

(E)     That all equipment be moved from the traffic lanes and any excavation in the traffic lanes be covered or filled with materials of sufficient strength and construction to permit vehicular traffic to pass over such excavation during all or part of the peak traffic periods or at night.

(2)     When such requirements are deemed necessary by the responsible person in the interest of public safety and to avoid traffic congestion, any such special requirements shall be endorsed on the permit and shall be a part thereof.

(k)     Appeal to City Council. If an application is disapproved, or if an applicant believes he has been unfairly treated by the responsible person, the applicant may in writing appeal such decision to the city council, which shall hear such appeal at the first regularly scheduled meeting after receipt of the written appeal. If the written appeal is received less than 72 hours prior to the next regularly scheduled meeting of the city council, such hearing shall be held at the second regularly scheduled city council meeting. The city council may grant or deny the permit or impose such restrictions or special requirements as it deems necessary, and the decision of the city council shall be final. Any permit not granted or any activity not permitted by the responsible person shall not be granted or permitted until the appeal is heard by the city council, and if the responsible person issues an order to cease some activity, such activity shall cease until such time as the appeal procedure is completed.

   Sec. 3.1864     Installation in Right-of-Way

(a)     Construction Standards.

(1)     All construction shall be in conformance with all city codes and applicable local, state and federal laws. Facilities shall be installed, operated and maintained in such a manner so as not to unreasonably interfere with vehicular and pedestrian use of public rights-of-way, or with any existing publicly-owned or publicly-franchised water and wastewater lines, gas lines, electric lines, storm sewer lines, open drainage areas, cable, fiber optic cable, roadways, sidewalks, alleys, traffic-control devices, public signs, or any other facilities permitted in the rights-of-way by the city.

(2)     Public Notification of Work to be Performed.

(A)     For any closure of a traffic lane or blocking of a sidewalk or alley lasting six days or less, the permittee shall conspicuously mark its vehicles with the permittee's name and telephone number.

(B)     For projects scheduled to last seven days or more, a three feet by three feet informational sign stating the identity of the person doing the work, a local telephone number, and owner's identity shall be placed at the location where construction is to occur at least 48 hours prior to the beginning of work in the public right-of-way, and shall continue to be posted at the location during the entire time the work is occurring. The informational sign will be posted on public right-of-way at a location that is 100 feet before the construction location commences, unless other posting arrangements are approved or required by the responsible person.

(C)     When projects last seven days or more, the permittee shall also provide written notification to all adjacent property occupants at least 48 hours prior to the beginning of construction. Informational fliers shall include the person doing the work, a local telephone number, owner's identity, and the proposed construction schedule.

(3)     Erosion control measures (e.g., silt fence) and advance warning signs, markers, cones, and barricades must be in place before work begins. Owner shall be responsible for storm water management, erosion control, and excavation safety measures that comply with city, state, and federal guidelines. Requirements shall include, but not be limited to, construction fencing around any excavation that will be left overnight, silt fencing in erosion areas until reasonable vegetation is established, and barricade fencing around open holes. High erosion areas will require wire backed silt fencing. Upon request owner may be required to furnish documentation submitted or received from federal or state government.

(4)     Permittee shall erect, place and maintain all warning signs, traffic-control devices and barricades required by the manual or the responsible person. All such signs, devices and barricades should be in good condition, clean and legible and shall be of the type required by the manual; provided, that the responsible person may authorize the use of different or special devices and equipment if, in his opinion, such equipment will be at least as effective for its intended purpose as that set forth for such purpose in the manual. When additional regulatory signs are deemed necessary by the responsible person such signage will be installed as directed along with such regulator signs as are required to be provided by the city pursuant to the manual.

(5)     Without affecting the legal relationship between the owner and its contractor, owner is responsible for the workmanship of, and any damages by, its contractors or subcontractors. A responsible representative of the owner will be available to the director at all times during construction.

(6)     Owner or contractor or subcontractor will notify the director immediately of any damage to other utilities, either city- or privately-owned.

(7)     Installation of facilities must not interfere with city utilities, in particular gravity-dependent facilities. Facilities shall not be located over, or within two feet, horizontally or vertically, of any water or sanitary sewer mains, unless approved by the responsible person.

(8)     New facilities must be installed to a minimum depth required by state and federal codes and standards, but not less than 36 inches below grade.

(9)     All directional boring shall have a locator place bore marks and depths while the bore is in progress. Locator shall place a mark at each stem with a paint dot and depth at least every other stem.

(10)     Owner will be responsible for verifying the location, both horizontal and vertical, of all facilities. When required by the responsible person, owner shall verify locations by pot holing, hand digging, or other method approved by the responsible person prior to any excavation or boring.

(11)     Placement of all manholes and/or handholes must be approved in advance by the responsible person. Handholes or manholes will not be located in sidewalks, unless approved by the responsible person.

(12)     Locate flags shall not be removed from a location while facilities are being constructed.

(13)     When construction requires pumping of water or mud, the water or mud shall be contained in accordance with federal and state law and the directives of the director.

(14)     A person shall perform operations, excavations and other construction in the public rights-of-way in accordance with all applicable city requirements, including the obligation to use trenchless technology whenever commercially economical and practical, and consistent with obligations on other similar users of the public right-of-way. The city shall waive the requirements of trenchless technology if it determines that the field conditions warrant the waiver, based upon information provided to the city by the person. All excavations and other construction in the public rights-of-way shall be conducted so as to minimize interference with the use of public and private property. A person shall follow all reasonable construction directions given by the city in order to minimize any such interference.

(15)     On construction projects in which excavation will exceed a depth of five feet, the permittee must have detailed plans and specifications for excavation safety systems. The term “excavation” includes trenches, structural or any construction that has earthen excavation subject to collapse. The excavation safety plan shall be designed in conformance with state law and Occupational Safety and Health Administration (OSHA) standards and regulations.

(16)     Prior to any boring, permittee shall identify and verify the elevation of all existing utilities and adjust the bore to avoid contact by a minimum of 12 inches below existing utilities, and a minimum of two feet below city utilities, as per section 3.1863(e) of this section.

(17)     The depth of conduit, measured from the top of the conduit to the surface of the ground, shall be a minimum of 36 inches.

(18)     Within the street right-of-way, with the exception of road crossings, city utility crossings and driveways, a four-inch capacity conduit should be used.

(19)     Trenching shall be promptly backfilled with earth and tamped with a mechanical tamper at six-inch lifts, so that the earth is restored to original grade to assure no hazard to vehicular, animal or pedestrian traffic. A density test may be required to ensure compaction at 95 percent standard proctor, with such test results to be furnished directly from the laboratory to the city engineer. All open trenches will be properly guarded or barricaded to prevent damage or injury.

(20)     All cable, where practical, shall be located to cross the roadbed at approximately right angles thereto. No cable shall be placed at any culvert or within five feet of the closed point of same.

(21)     In areas of potential erosion, the area shall comply with city storm water pollution prevention ordinance.

(22)     Operations along roadways, walkways and sidewalks shall be kept clear of excavated material or other obstructions at all times. Barricades, warning signs and lights, and flagmen, when necessary, shall be provided by the contractor or the grantee. Operations involving traffic-control shall be in accordance with the manual and an approved traffic-control plan, which shall be submitted to city engineer's office.

(23)     Damage to banks, any public utilities, ditches, roads, fences, lawns, shrubbery, drives and any other property, public or private, caused from the equipment and installation of the facilities shall be immediately reported. Except for damage to city-owned public utilities, such damage shall be repaired to the satisfaction of the public authorities having jurisdiction over the public right-of-way involved, at the cost of the owner. Damage to any city-owned public utilities shall be repaired by the city at permittee's expense.

(24)     All bores shall be accomplished by the dry-bore method or horizontal directional drilling.

(25)     No appurtenances shall be located in existing or planned sidewalks.

(b)     Standards Adopted. The Manual of Uniform Traffic-Control Devices is hereby adopted by and shall be controlling within the city. A copy of such standards shall be maintained on file in the office of the city secretary.

(c)     As-Built Plans. Owner shall provide the responsible person with “as-built plans” within 90 days of completion of facilities in the public right-of-way. The plans shall be provided to the city with as much detail and accuracy as required by the responsible person. All the requirements specified for the plans submitted for the initial permit, as set forth herein shall be submitted and updated in the “as-built plans.” Owners with facilities in the public right-of-way existing as of the date of this article who have not provided “as-built plans” shall provide one-quarter of the information concerning facilities in city public right-of-way within one year after the enactment of this article, and one-quarter each six months thereafter. The detail and accuracy will address location, size of facilities, materials used, and any other health, safety and welfare concerns. Submittal of “as-built plans” shall be in digital format, and each sheet must be a separate file using TIFF formatting.

(d)     Inspection of Facilities.

(1)     The contractor must give seven business days' notice to the city prior to the start of work. The city reserves the right to inspect new and existing facilities at any time.

(2)     The city's inspections, or the failure to do so, shall not operate to impose upon the city any liability of any kind whatsoever or relieve the contractor of any responsibility, obligations or liability for contractor's facilities, whether assumed under the contractor's permit or otherwise existing.

(3)     The city shall provide written notice to the contractor if an inspection reveals that all, or any part, of the contractor's facilities are installed, used, or maintained in violation of this article or contractor's permit. The contractor agrees to bring its facilities into full compliance with this article and its permit within 30 days of receipt of notice from the city. If the contractor does not correct the violation(s) within 30 days as required, the city may correct the conditions at the contractor's expense. When the city reasonably believes that the violation(s) poses an immediate threat to the safety of any person, interferes with the performance of the city's obligations, or poses an immediate threat to the physical integrity of poles or city facilities or the public right-of-way, the city may perform work and/or take action as reasonably necessary to eliminate such immediate threat without first giving written notice to the contractor. The city will advise the contractor in writing of the work performed or the action taken, including photographic evidence substantiating the violation and its cause. The contractor shall pay the city for all costs the city incurs in performing the work or taking the action.

(e)     Conformance with Public Improvements.

(1)     An owner may trim trees in or over the public rights-of-way for the safe and reliable operation, use and maintenance of its facilities. All tree trimming shall be performed in accordance with standards promulgated by the National Arborist Association and the International Society of Arboriculture. Should the owner, its contractor or agent, fail to remove trimmings within 24 hours, the city may remove the trimmings or have them removed, and upon receipt of a bill from the city, the owner shall promptly reimburse the city for all costs incurred within 30 days.

(2)     An owner shall temporarily remove, raise or lower its aerial facilities to permit the moving of houses or other bulky structures. The owner shall temporarily remove, raise or lower its aerial facilities within 15 business days of receiving a copy of a permit issued by the city. The expense of these temporary rearrangements shall be paid by the party or parties requesting and benefiting from the temporary rearrangements. The owner may require prepayment or prior posting of a bond from the requesting the temporary move.

(f)     Location of Poles and Utility Structures.

(1)     Utility structures not exceeding 20 cubic feet are allowed in the public right-of-way or utility easements, subject to available room and located as approved by the responsible person. The placement of utility structures larger than 20 cubic feet, but not exceeding 30 cubic feet, will be reviewed on a case-by-case basis by the responsible person. Such structures shall not encroach within a sidewalk area, including a vertical clearance of eight feet above the sidewalk or within the sight visibility area.

(2)     Utility structures larger than 30 cubic feet shall be located as close as practical to the back of a public or private utility easement and subject to available room and located as approved by the responsible person.

(3)     Above ground facilities such as pedestals, switching boxes, marker posts, and similar facilities shall be located no less than three feet from the edge of an alley or the back of street curbs and shall not create a physical or visual barrier to vehicles leaving or entering roads, driveways or alleys. Such facilities shall also not be located in front of residential lots in a manner that creates an unreasonable visual or aesthetic impairment for the property owner.

(4)     The owner's identity and telephone number shall be placed on all utility structures placed in the public rights-of-way.

(5)     The following provisions are applicable to the identification of existing underground facilities. Contractors and owners performing line locates shall comply with the following:

(A)     No line locate may be longer than 500 linear feet. If the project requires a line locate longer than 500 linear feet, a separate line locate request must be called in for each 500-foot section.

(B)     Area locates must be made with white ultraviolet degradable paint.

(C)     All locates must be made with ultraviolet degradable paint.

(D)     Painting of decorative surfaces and features should be avoided whenever possible.

(E)     If the responsible person determines that the locate marks are excessive, the person making the locate marks may be required to remove marks using a method acceptable to the responsible person.

(F)     All locate flags related to the ticket called in by the contractor shall be removed prior to final acceptance.

(G)     All locate requests must be placed in accordance with federal, state, and local laws, with the most stringent law prevailing.

(6)     The city shall not grant permits for facilities that, in the city's sole determination, will adversely impact pedestrian movement or will be in violation of the Americans with Disabilities Act.

(7)     A minimum five-foot clear path of travel will be provided at all times.

(8)     Separation.

(A)     In order to minimize negative visual impact to the surrounding area, the hazard of poles, adjacent to roadways, and the effect on property values, the city may deny a permit for a new pole, if the requested location is within 45 linear feet of a street intersection or 300 linear feet per block face of existing pole.

(B)     In residential zoning districts, poles shall be located where the shared property line between two residential parcels intersects the public right-of-way.

(C)     In nonresidential zoning districts, facilities shall be located between tenant spaces, storefront bays, or adjoining properties where their shared property lines intersect the public right-of-way.

(9)     Poles shall be set back a minimum of 20 feet from a traffic signal pole, and set back a minimum of 15 feet from any pedestrian ramp. The city may require a greater setback from these and other fixtures in the public right-of-way to ensure proper lines for public safety purposes.

(10)     Poles and accessory equipment shall be located at least ten feet from a driveway and at least 12 feet from the center of existing trees.

   Sec. 3.1865     Removal and Abandonment of Facilities Repair and Restoration

(a)     Removal Upon Notice from the City for City Project.

(1)     The city may determine that it is necessary for the contractor to remove or relocate its facilities or any portion thereof from the public right-of-way for city projects. Whenever the city reasonably determines that relocation or removal is needed for the construction, completion, repair, widening, relocation, or maintenance of, or use in connection with, any city construction or maintenance project of a street or public right-of-way, or other public purpose, the contractor shall remove or relocate its facilities at its sole cost and expense, except as otherwise provided in existing state or federal law.

(2)     The contractor shall complete the removal or relocation within 30 days after receiving written notice from the city, provided the city or a third party has not prevented the contractor from completing such work. The contractor shall notify the city in writing within ten days after the removal or relocation has been completed.

(3)     If the contractor fails to remove or relocate the facility or portion thereof as requested by the city within 30 days after receiving written notice from the city, the city shall have the right to remove, or to have removed, the facility at the contractor's expense.

(4)     The city shall not be responsible or liable for damage to the contractor's facilities except to the extent provided in this article.

(5)     The contractor shall reimburse the city for the city's actual cost of removal of the facilities within 30 days of receiving the invoice from the city.

(b)     Removal Required by the City for Safety and Imminent Danger Reasons.

(1)     The contractor shall, at its sole cost and expense, promptly disconnect, remove, or relocate the applicable facility within the time frame and in the manner required by the city if the city reasonably determines that the disconnection, removal, or relocation of any part of a facility:

(A)     Is necessary to protect the public health, safety, welfare, or public property;

(B)     If such facility, or portion thereof, is adversely affecting proper operation of city facilities or equipment; or

(C)     If the contractor fails to obtain all applicable licenses, permits, and certifications required by law for its facilities or for the use of any location under applicable codes, regulations and law.

(2)     If the city reasonably determines that there is imminent danger to the public, then the city may immediately disconnect, remove, or relocate the applicable facilities at the contractor's sole cost and expense in strict accordance with the city's ordinances. 13-48. - Repair by contractor.

(c)     Repair by Contractor. The contractor shall repair any damage to any public right-of-way, city facility or equipment, and the property of any third party resulting from the contractor's removal or relocation activities (or any other of the contractor's activities hereunder) within ten days following the date of such removal or relocation, at the contractor's sole cost and expense, including restoration to substantially the same condition as it was immediately before the date the contractor was granted a permit, including restoration or replacement of any damaged trees, shrubs, or other vegetation. Such repair, restoration and replacement shall be subject to the sole, reasonable approval of the city.

(d)     Restoration of Property.

(1)     The surface of any public right-of-way disturbed by owner in the construction or maintenance of its facilities shall be restored to as good a condition as before the commencement of the work promptly but not more than 30 days after the completion of the work in accordance with all applicable codes and ordinances. The city shall have 90 days from the date of such restoration to determine whether the restored surface requires additional work to place it in as good a condition as before the commencement of the work. If the city determines that additional restoration work is necessary, owner shall perform all additional restoration work to the satisfaction of the city. No public right-of-way shall be encumbered for a period longer than necessary to complete all work.

(2)     If restoration is not satisfactory or performed in a timely manner, after written notice, then all work in progress, except that related to the problem, including all work previously permitted but not complete may be halted and a hold may be placed on any future permits until all restoration is complete.

(3)     Upon failure of owner to perform such restoration, and five days after written notice has been given to the owner by the city, and in the event restoration has not been initiated during such five-day period, the city may repair such portion of the public rights-of-way as may have been disturbed by the owner, its contractors or agents. Upon receipt of an invoice from the city, the owner will reimburse the city for the costs so incurred within 30 days from the date of the city invoice.

(4)     If the city determines that the failure of owner to properly repair or restore the public rights-of-way constitutes a safety hazard to the public, the city may undertake emergency repairs and restoration efforts, after emergency notice has been provided, to the extent reasonable under the circumstances. Upon receipt of an invoice from the city, the owner shall promptly reimburse the city for the costs incurred by the city within 30 days from the date of the city invoice. If payment is not received within the 30 days, the city shall initiate a claim for compensation with the appropriate bonding company.

(5)     Owner shall warrant any restoration work performed in the rights-of-way for two years from the date of final completion and acceptance of the work by the city or, if additional restoration work is required, from the date of acceptance of the additional restoration work by the responsible person as meeting city's standards, whichever date is later. This warranty shall include all repairs and actions needed as a result of:

(A)     Defects in workmanship;

(B)     Settling of fills or excavations;

(C)     Any unauthorized deviations from the approved plans and specifications;

(D)     Failure to barricade;

(E)     Failure to clean up during and after performance of the work;

(F)     Restoration of improvements including, but not limited to, landscaping and irrigation; or

(G)     Any other violation of the ordinances of the city.

(6)     If repairs are required during the two-year warranty period, those repairs need only be warranted until the end of the initial two-year period starting with the date of acceptance. It is not necessary that a new two-year warranty be provided for subsequent repairs after acceptance.

(7)     At any time prior to completion of the two-year warranty period, the city may notify the owner of any needed repairs. Such repairs shall be completed within 24 hours if the city determines the defects are an imminent danger to the public health, safety, or welfare. Nonemergency repairs shall be completed within 15 calendar days after notice is sent by the city. Within two years from the date of the completion of the repair work, should the city reasonably determine that the surface, base, irrigation system, or landscape treatment requires additional restoration work to meet the standards of section 3.1861 of this section, owner shall perform such additional restoration work to the satisfaction of the city, subject to all city remedies as provided herein.

(8)     Restoration must be to the reasonable satisfaction of the responsible person. The restoration shall include, but not be limited to:

(A)     Replacing all ground cover with the type of ground cover damaged during work to a condition equal to or better either by sodding or seeding, or as directed by the responsible person. Replacement of sod is to be of like kind, smoothed, shaped, rolled, and compacted for proper landscape maintenance;

(B)     Adjusting of all manholes and handholes, as required;

(C)     Backfilling all bore pits, potholes, trenches or any other holes shall be completed daily, unless other safety requirements are approved by the responsible person. Holes with only vertical walls shall be covered and secured to prevent entry. If bore pits, trenches or other holes are left open for the continuation of work, they shall be fenced and barricaded to secure the work site as approved by the responsible person;

(D)     Leveling of all trenches and backhoe lines;

(E)     Restoration of excavation site to city specifications;

(F)     Restoration of all paving, sidewalks, landscaping, ground cover, trees, shrubs and irrigation systems;

(G)     Openings in pavement or sidewalks shall be filled by tamping the dirt in such a manner as to leave the street, alley or sidewalk at that point free from depressions or holes; the opening shall be refilled and maintained by permittee until the dirt is thoroughly settled and packed, the gravel, if any, replaced and packed; the surplus of dirt and/or gravel removed and the surface of the street, alley or sidewalk is in as good condition as it was prior to the making of any opening or excavation therein.

(i)     Permittee shall report the completion of the refill to the responsible person, whose duty it shall be to inspect and pass upon the completeness and acceptability of the workmanship of the refill.

(ii)     Should the refill not meet with the approval of the responsible person, the permittee will be given two days' notice, either in writing or otherwise, to complete the job to the satisfaction and approval of the responsible person.

(9)     Owner or contractor shall remove all locate flags during the clean-up process at the completion of the work.

(10)     In the event a permit issued under this division is revoked, the permit holder shall immediately commence operations to restore the work area within the roadway to its proper condition, such work to be completed within 24 hours. In addition, except as required to restore the work area to its proper condition, the permit holder shall remove all equipment, men, materials and debris from the roadway. In the event such restoration is not done, the city may, at its election, take charge of the work and restore the premises to its proper condition and shall be entitled to recover from the permit holder by civil action the actual expenses incurred by the city in restoring the premises, including, but not limited to, cost of labor, materials, overhead, rental of any equipment used by the city in restoring the site and attorney's fees, and for such purposes, the city shall have a right of action against any bonds in effect running from the holder of the permit to the city, conditioned upon compliance with the ordinances of the city in the performance of such work.

(e)     Abandonment of Facilities.

(1)     Whenever an owner intends to abandon any of its facilities within a public right-of-way, it shall submit to the city an application describing the facilities to be abandoned and the date of the proposed abandonment. The city may require owner, at owner's expense:

(A)     To remove the facilities from the public right-of-way; or

(B)     To modify the facilities in order to protect the public health and safety or otherwise serve the public interest.

(2)     If the owner fails to respond to the city's request within 60 days, the abandoned facilities shall be considered the property of the city. Alternatively, the owner may choose to remove the facilities.

   Sec. 3.1866     Liability, Indemnification and Insurance

(a)     Liability and Indemnification.

(1)     The city reserves the right to maintain and operate public rights-of-way in the manner it deems best. The contractor agrees to use public rights-of-way at the contractor's sole risk. The city shall exercise reasonable care to avoid damaging the contractor's facilities and the city shall report to the contractor the occurrence of any such damage caused by the city's employees, agents or contractors.

(2)     The contractor shall indemnify the city as provided in V.T.C.A., Local Government Code sec. 283.057(a), (b).

(3)     No provision of this article is intended, or shall be construed, to be a waiver for any purpose by the city of governmental immunity or other provisions of state law limiting municipal liability. No indemnification provision contained in this article under which the contractor indemnifies the city shall be construed in any way to limit any other indemnification provision contained in this article or state law.

(b)     Insurance Requirements.

(1)     Owner shall, at its sole cost and expense, obtain, maintain, or cause to be maintained, and provide, throughout the term of the permit granted herein, insurance in the amounts, types and coverages as required by the city. Such insurance may be in the form of self-insurance to the extent not precluded by applicable law or by obtaining insurance.

(2)     Owner must name the city, which includes all authorities, commissions, divisions, and departments, as well as elected and appointed officials, agents, and volunteers, as additional insureds under the required coverage, except workers' compensation coverage. The certificate of insurance must state that the city is an additional insured and provide for an endorsement that the “other insurance” clause shall not apply to the city where the city is an additional insured on the policy.

(3)     Owner will require its contractors and subcontractors performing work within the public rights-of-way to maintain, at their sole cost and expense, insurance in the form and with the minimum limits required by the city. Such insurance shall be required under the same conditions as specified herein for owner. Owner will maintain at all times, and will provide to city upon request, proof of its contractors' and subcontractors' compliance with this requirement.

(4)     Owner will provide proof of insurance prior to issuance of the permit. The certificate of insurance 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.

(5)     All polices shall be endorsed to read: “THIS POLICY WILL NOT BE CANCELLED OR NONRENEWED WITHOUT THIRTY (30) DAYS ADVANCE WRITTEN NOTICE TO THE CITY EXCEPT WHEN THIS POLICY IS BEING CANCELLED FOR NONPAYMENT OF PREMIUM, IN WHICH CASE TEN (10) DAYS ADVANCE WRITTEN NOTICE IS REQUIRED.”

(6)     Within ten calendar days of a suspension, cancellation, or nonrenewal of coverage, the owner shall provide a replacement certificate of insurance and applicable endorsements to the city. The city shall have the option to suspend the owner's performance and the permit should there be a lapse in coverage at any time during the construction period.

(7)     In addition to any other remedies the city may have upon the owner's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the city shall have the right to order the owner to stop work under its permit.

(8)     Nothing herein contained shall be construed as limiting in any way the extent to which the owner may be held responsible for payments of damages to persons or property resulting from the owner's or its subcontractors' performance of the work.

(9)     Owner's insurance shall be deemed primary and noncontributory with respect to any insurance or self-insurance carried by the city. The insurance required is in addition to and separate from any other obligation of owner hereunder.

(10)     Owner and its subcontractors are responsible for all damage to their own equipment and property.

   Sec. 3.1867     Emergencies

(a)     Emergency Situations. The requirements of this article are to be used for all planned construction projects. In the event of an emergency-type situation, notification of work to be done may be made by telephone directly to the responsible person or his appointed representative, thereby bypassing the requirements of this article. Under these conditions the owner will still be required to follow the basic barricading standards as outlined in the manual.

(b)     Emergency Contact. The contractor shall maintain a staffed 24-hour emergency telephone number, not available to the general public, where the city can contact the contractor to report damage to the contractor's facilities or other situations requiring immediate communications between the parties. Such contact person shall be qualified and able to respond to the city's concerns and requests.

   Sec. 3.1868     Penalty

Any person who violates any provision of this article shall be fined in accordance with the general provision found in section 1.109 of this code. Each day such violation shall continue or be permitted shall be treated as a separate offense.

(Ordinance 2018-011 adopted 4/26/18)