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HomeMy WebLinkAbout1659 10-26-2004ORDINANCE NO. 1659 AN ORDINANCE AMENDING CHAPTER 86 "UTILITIES," BY ADDING SECTION 86 -1 "RIGHT -OF -WAY AND EASEMENT USAGE REQUIREMENTS"; PROVIDING A PENALTY FOR VIOLATION; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Euless desires to protect the physical integrity of its infrastructure, rights -of -way and easements; WHEREAS, the City desires to control the orderly flow of vehicles and pedestrians; WHEREAS, the City desires to keep track of the various systems using the rights -of -way and easements to prevent interference between them; WHEREAS, the City desires to manage the utility facilities that crisscross the City's infrastructure, rights -of -way and easements and to coordinate construction schedules within the rights -of -way and easements. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EULESS, TARRANT COUNTY, TEXAS: that Chapter 86 "Utilities," is hereby amended by adding Section 86 -1 as follows: SECTION I Sec. 86 -1. Rights -of -Way and Easement Usage Requirements No person shall commence or continue with the construction, installation, or operation of facilities within rights -of -way and publicly dedicated easements in the City except as provided by the ordinances of the City and the directives of the Public Works Department. All construction activity in City rights -of- way and easements will be in accordance with this chapter. (1) 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 of Euless. Registration and permits will be issued in the name of the person who will own the facilities. Registration must be renewed every five -(5) years. For utilities with a current franchise or license, the franchise or license will be evidence of renewal. If a registration is not renewed and subject to sixty - (60) day written notification to the owner, in addition to constituting a violation hereof for which the user shall be subject to citation and fine as provided in Subsection (9) below, the City shall cease to issue permits to such user until the registration is renewed.. When any information provided for the registration changes, the user will inform the City of Euless of the change no more than thirty (30) days after the date the change is made. Information provided in applications for construction permits shall constitute notice of any changes in the registration information for the user. Registration shall include: 1. The name of the user of the right -of -way; 2. The names, addresses, and telephone numbers of people who will be contact person(s) for the user; 3. The name, address, and telephone number of any contractor or subcontractor, if known, who will be working in the right -of -way on behalf of the user; 4. The name(s) and telephone number of an emergency contact who shall be available twenty -four (24) hours a day; 5. Proof of insurance and bonds; (a) An applicant shall obtain and maintain insurance in the following amounts with a company authorized to do business in the State of Texas acceptable to the City : TYPE OF INSURANCE General Liability (including Contractural liability) written On an occurrence basis Automobile Liability, including Any auto, hired autos and non - Owned autos Excess Liability, Umbrella Form Worker's Compensation and Employer's Liability LIMIT (in S millions) General Aggregate 2 Prod. /Comp. Op. Agg. 2 Personal & Adv. Injury 1 Each Occurrence Combined Single Limit 1 Each Occurrence Aggregate Each Accident .5 Disease- Policy Limit .5 Disease -Each Employee.5 (b) The City reserves the right to review the insurance requirements during the effective period of any franchise or municipal consent agreement, and to reasonably adjust insurance coverage and limits when the City Manager determines that changes in statutory law, court decisions, or the claims history of the industry or the provider require adjustment of the coverage. For purposes of this section, the City will accept certificates of self - insurance issued by the State of Texas or letters written by the applicant in those instances where the State does not issue such letters, which provide the same coverage required herein. However, for the City to accept such letters, the applicant must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the City, based on financial information requested by and furnished to the City. Ordinance No. 1659, Page 2 of 13 (c) Each policy must include a cancellation provision in which the insurance company is required to notify the City in writing, not fewer than thirty (30) days before canceling, failing to renew, or reducing policy limits. Each policy shall provide that notice of claims shall be provided to the City Manager by certified mail. (d) The applicant shall file the required original certificate of insurance prior to any commencement of work. The certificate shall state the policy number; name of insurance company; name and address of the agent or authorized representative of the insurance company; name, address and telephone number of insured; policy expiration date; and specific coverage amounts. The certificate shall name the City and its officers, employees, board members and elected representatives as additional insureds for all applicable coverage. The City may request the deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, unless the policy provisions are established by law or regulation binding the City, the applicant or the underwriter. If the City requests a deletion, revision or modification, the applicant shall exercise reasonable efforts to pay for and to accomplish the change. (e) Applicant shall obtain and maintain, at its sole cost and expense, and file with the City Secretary, a corporate surety bond in the amount of $100,000 both to guarantee timely construction and faithful adherence to all requirements of this ordinance. The bond amount may be reduced to $50,000 after a period of two (2) years provided applicant has complied with all terms and conditions herein. The bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be cancelled by the surety nor any intention not to renew be exercised by the surety until thirty (30) days after receipt by the City of such written notice of such intent." The bond shall provide, but not be limited to, the following condition: There shall be recoverable by the City, jointly and severally from the principal and the surety, any and all damages, loss or costs suffered by the City resulting from the failure of the applicant to satisfactorily construct facilities and adherence to all the requirements of this ordinance. The rights reserved to the City with respect to the bond are in addition to all other rights of the City, whether reserved by this ordinance, or authorized by law; and no action, proceeding or exercise of a right with respect to such bond shall affect any other rights the City may have. (f) The City Manager or his designee may waive or reduce the above requirements, taking into consideration both that the applicant has furnished the City with reasonable documentation to evidence adequate financial resources substantially greater than the insurance and bonding requirements, and has demonstrated in prior right -of -way construction activity, prompt resolution of any claims and substantial compliance with all required applicable codes and ordinances. (g) The above financial and insurance requirements may be met by applicants with a current franchise or license and applicants governed by Chapter 283 of the Texas Local Government Code if the current franchise, license or statutory indemnity adequately provides for insurance or bonds or provides an indemnity in favor of the City. Ordinance No. 1659, Page 3 of 13 b. Construction permits 1. Permit applications are required for construction or installation of new, replacement or upgraded facilities in rights -of -way 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 a 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 Public Works Department should be notified in writing as promptly as possible, though in no event later than two (2) business days of any construction related to an emergency response and shall as soon as reasonably practicable apply for and obtain the permits required herein. (b) The phrase "construction or 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; the closure of a nonresidential traffic lane, 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 Director of Public Works or designee. 3. The person requesting a permit will provide the Director of Public Works or designee with documentation describing: (a) The proposed, 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 shall be submitted on a scale not to exceed one (1) inch equals one hundred (100) feet unless otherwise approved by Public Works Department. (c) Detail or description of the location of all rights -of -way and utility easements which applicant plans to use. (d) Detail or description of all existing City utilities in relationship to applicant's proposed route. (e) Detail or description of what applicant proposes to install. (f) Detail of plans to remove and replace asphalt or concrete in streets (include City of Euless standard construction details for pavement patching Types A and/or B). (g) Drawings of any bores, trenches, handholes, manholes, switch gear, transformers, pedestals, etc. including depth, when available. (h) Handhole and/or manhole typical of type of manholes and/or handholes applicant plans to use or access. Ordinance Nu 1659, Page 4 of 13 (1) Complete legend of drawings submitted by applicant, which may be provided by reference to previously submitted documents on file with the City. 0) Three (3) sets of engineering plans must be submitted with the permit application. (k) 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. (1) The construction and installation methods to be employed for the protection of existing structures, fixtures, and facilities within or adjacent to the right -of -way, and the estimated dates and times work will occur, all of which (methods, dates, times, etc.) are subject to approval of the Director of Public Works or designee. (m) A statement that the requirements of 86 -1 (1) (a) (5) are met. 4. All construction and installation in the rights -of -way and easements shall be in accordance with the permit for the facilities. The Director of Public Works or designee shall be provided access to the work and to such further information as may reasonably be required to ensure compliance with the permit. 5. A copy of the construction permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the Director of Public Works or designee at all times when construction or installation work is occurring. 6. All construction or installation work authorized by permit must be completed in the time specified in the construction permit. If the work cannot be completed in the specified time periods, the permittee may request an extension from the Director of Public Works or designee. The Director of Public Works or designee will use best efforts to approve or disapprove a request for permit as soon as possible. If no construction has commenced under a permit within the time specified, and any extensions, the permit becomes null and void and a new permit is required before construction may be performed. 7. 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 Euless shall be provided, if requested by the Public Works Department. A request for a permit must be submitted at least five (5) working days before the proposed commencement of work in the request, unless waived by the Director of Public Works or designee. Permit requests for large projects may require additional review time. 9. Requests for permits will be approved or disapproved by the Director of Public Works or designee within a reasonable time of receiving all the information. The Director of Public Works or designee will use best efforts to approve or disapprove a request for permit as soon as possible. 10. The Public Works Department or the applicant can request a pre - construction meeting with the permittee and their construction contractor. Ordinance No. 1659, Page 5 of 13 (2) Construction Standards a. Department of Public Works must be notified twenty -four (24) hours in advance that construction is ready to proceed by either the right -of -way user, their contractor or representative. At the time of notification, the right -of -way user will inform the Public Works Department of the number (or other information) assigned from the one -call system. b. 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 meet or exceed City of Euless standards for construction within streets. c. Erosion control measures (e.g. silt fence) and advance warning signs, markers, cones and barricades must be in place before work begins, if applicable. d. Lane closures on major thoroughfares may occur only between 8:30 a.m. and 4:00 p.m. unless the Public Works Department grants prior approval. Barricades and signage shall be installed in accordance with the Texas Manual of Uniform Traffic Control Devices. f. Without affecting the legal relationship between permittee and its contractors, 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 Public Works Department at all times during construction. g. Permittee shall comply with City, State and Federal guidelines applicable to permittee. h. Permittee, contractor or subcontractor will notify the Public Works Department immediately of any damage to other utilities, either City or privately owned. i. 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 Public Works Department and all requirements of the Public Works Department shall be followed. Repair of all street and sidewalk removals must be made promptly to avoid safety hazards to vehicle and pedestrian traffic. J. Installation of facilities must not interfere with City utilities, in particular gravity dependent facilities. k. New facilities must be installed to a depth in conformance with applicable State and Federal guidelines. In the absence of State and Federal guidelines, new facilities shall be installed to a depth approved by the Director of Public Works. New facilities, including new service drops, shall be placed underground unless the facility owner, developer or affected property owner has shown to the satifaction of the Director of Public works that this requirement is not technically, environmentally or economically feasible. All appurtenances and equipment and, if permitted, above- ground facilities shall be placed along rear lot or tract lines unless the facility owner, developer or affected property owner has shown to the satisfaction of the Director of Public Works that such placement is not feasible. In the event there is a difference in cost associated with utility locations, i.e.: (front lot vs. rear lot), such cost shall be borne by the developer or property owner requesting such service. Furthermore, electrical transformers on rear lot sites must be accessible by a seven (7) foot wide dedicated utility easement extending parallel with the Ordinance No. 1659, Page 6 of 13 side yard from front of lot to back of lotJ Fire Hydrants and traffic signal controllers are exempted from the rear lot or tract line requirement with passage of this ordinance. City will work diligently with facility owner, developer and affected property owners during the zoning and platting processes of new subdivisions to ensure reasonable equipment access to facilities along rear lot or tract lines will be available. When facilities are to be placed along rear lot or tract lines, before construction of facilities commences, the easement shall be reduced to final grade, at developer's sole cost and expense. Additionally, if such easement is located within a floodplain, the entire surface of the easement shall be raised above the floodplain elevation, at developer's sole cost and expense, before construction of the facilities commences. 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 rights - of -way and street yards that are consistent with reasonable City standards and as approved by the Director of Public Works. Sight visibility easements and horizontal clear triangles are not appropriate locations 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. m. All directional boring shall have locator place bore marks and depths while bore is in progress. Locator shall place a mark at each stem with paint dot and depth at least every other stem. n. The working hours in the rights -of -way are 7:00 a.m. to 6:00 p.m., Monday through Friday. Work that needs to be performed after 6:00 p.m. Monday through Friday must be approved in advance. Any work performed on outside these times must be approved twenty -four (24) hours in advance by the Public Works Department. Directional boring is permitted only Monday through Friday 7:00 a.m. to 6:00 p.m., unless approved in advance. No work will be done, except for emergencies, on City holidays. All work shall be performed in compliance with City noise and nuisance code requirements. o. Contractors will be responsible for physically verifying the location both horizontal and vertical of all potentially affected facilities, whether by pot holing, hand digging or other method approved by the Public Works Department prior to any excavation or boring with the exception of work involving lane closures, as discussed above. p. Placement of all manholes and/or hand holes must be approved in advance by the Public Works Department. Handholes or manholes will not be located in sidewalks, unless approved by the Director of Public Works or designee. q. Locate flags shall not be removed from a location while facilities are being constructed. r. Construction that requires pumping of water or mud shall be contained in accordance with federal and state law. s. Permittee may trim trees in or over the rights -of -way and easements for the safe and reliable operation, use and maintenance of its facilities. All trimming in rights -of -way and easements shall be in accordance with guidelines established by the National Arborist Association and International Society of Arboriculture, and should by 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 Ordinance No. 1659, Page 7 of 13 affected property owners prior to necessary tree trimming operations. 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 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 to maintain or restore utility service. t. The permittee and any person responsible for construction shall protect the public right -of- way surface, and all existing facilities and improvements both above and below ground from excavated materials, equipment operations, and other construction activities. Particular attention must be paid to ensure that no excavated material or contamination of any type is allowed to enter or remain in a water or wastewater main or access structure, drainage facility, or natural drainage feature. (3) "As- Built" Plans. a. Right -of -way users will provide the Director of Public Works or designee with "As- Built" plans within ninety (90) days of completion of facilities in the right -of -way. The plans shall be provided to the City in a format used in the ordinary course of user's business to the extent they are prepared in the ordinary course of business, but excluding customer specific, proprietary or confidential information and as reasonably prescribed by the City, and as allowed by law. b. The Director of Public Works or designee for good cause may waive this requirement, or portions of this requirement. Determination of good cause shall include an assessment of 1) the right -of -way user's ability to feasibly and economically remove customer specific, proprietary or confidential information from its plans and 2) the right -of -way user's standard business practice relative to the preparation of construction and as-built plans. The Director of Public Works or designee may reassess waivers from time to time to determine whether right -of -way user's ability to provide as -built plans has changed. (4) Conformance with Public Improvements. a) Whenever, by reasons of widening or straightening of streets, water or wastewater main projects, traffic signal projects, storm drainage projects or any other public works projects (e.g. sidewalk ADA ramp installations, storm drain upgrades, water main upgrades, waste water main upgrades, etc.) it shall be deemed necessary by the governing body of the City of Euless to remove, alter, change or conform the underground or overhead facilities of a right -of -way user to another part of the right - of -way, such alterations shall be made by the owner of the facilities at their expense, unless provided for by State law, or an existing franchise expires or is otherwise terminated. b) The City of Euless shall give a right -of -way user written notice as to when a right - of -way user's facilities must be relocated, removed, altered or changed due to construction of a City of Euless project. It is strongly recommended that right -of- way users and the City of Euless collaborate on projects via "Utility Coordination Meetings ". The City of Euless Director of Public Works or his/her designee shall endeavor to develop the scope and detail of the proposed City project and notify Ordinance No. 1659, Page 8 of 13 right -of -way users of a Utility Coordination Meeting. Right -of -Way users shall work in conjunction with the City of Euless to develop a schedule for the relocation, removal, alteration or change of a right -of -way user's facilities based on the nature and extent of the City of Euless project. c) Upon development of an acceptable schedule to relocate, remove, alter or change a right -of -way user's facilities, the right -of -way user shall enter into a written "Memorandum of Understanding ", listing the project details and proposed completion dates with the City of Euless to accomplish the relocation, removal, alteration, and changes to the right -of -way user's facilities. If the right -of -way user fails to properly relocate, remove, alter or change its facilities within the timeframe contained in the Memorandum, has failed to attend utility coordination meetings, failed to notify the City of Euless of schedule changes beyond the right -of -way user's control or other circumstances, the right -of -way user shall potentially be liable for any and all damages incurred by the City of Euless that are attributable to the right -of -way user's failure to relocate, remove, alter or change its facilities within the timeframe contained in the Memorandum. d) In as much as a right -of -way user has failed to comply with Section c) and the City of Euless upon finding of fact has determined a right -of -way user is liable; the City of Euless may file written claim against a right -of -way user for restitution of the dollar amount associated with the damages incurred. e) The City of Euless or its designee shall act as Project Manager for the purpose of coordinating the conformance of facilities located in the public rights -of -way to public improvement projects. The Project Manager shall have the responsibility to establish Utility Coordination Meetings, provide the scope and detail of the proposed City project, manage the relocation process, establish a reasonable schedule for relocations, and communicate with and among right -of -way users of the public right -of -way. In the event that the Project Manager fails to satisfactorily execute the duties as outlined in Section d), the City shall hold the user's of the public right -of -way harmless for any and all damages incurred by the City of Euless that may be attributable to the right -of -way user's failure to relocate, remove, alter or change its facilities. f) If no acceptable schedule for the relocation, removal, alteration or change of a right - of -way user's facilities can be determined between the Director of Public Works or his /her designee and the right -of -way user, the City of Euless may send written notice to the right -of -way user directing the right -of -way user to relocate, remove, alter or change its facilities within a reasonable time frame with not less than 60 days prior written notification. Pursuant to written notification, the right -of -way user shall have (120) days to accommodate a City of Euless project. g) The right -of -way user shall not be held responsible for any delay or failure in performance of any part of its obligations to relocate, remove, alter or change its facilities if the delay or failure is caused by circumstances outside the reasonable control of the right -of -way -user, including without limitation (1) the failure of the City or another right -of -way user to move or adjust its facilities as necessary to allow Ordinance No. 1659, Page 9 of 13 timely completion of such right -of -way users relocation, removal, alteration or change of its facilities under the project, or (2) fire, flood, storm, or other weather conditions, work stoppage or other strike, or act of God or force majeure event. (5) Improperly 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 ordinance 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 directions provided by the Public Works Department. (6) 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 Public Works Department 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 either by sodding or seeding, as directed by the Public Works Department. 2. Installation of all manholes and hndholes, as required: 3. Backfilling all bore pits, potholes, trenches or any other holes shall be filled in or covered daily, unless other State or Federal safety requirements are followed. 4. Leveling of all trenches and backhoe lines; 5. Restoration of excavation site to City specifications; and 6. Restoration of all landscaping, ground cover, and sprinkler systems. c. All locate flags and information signs shall be removed during the clean up process by the permittee or contractor at the completion of the work. d. Restoration must be made in a timely manner as specified by approved public works schedules and to the satisfaction of Director of Public Works or designee. If restoration is not satisfactory and performed in a timely manner all work in progress, except that related to Ordinance No. 1659, Page 10 of 13 the problem, including all work previously permitted but not complete may be halted and a hold may be placed on any permits not approved until all restoration is complete. (7) Revocation or Denial of Permit. If any of the provisions of this ordinance are not followed, a permit may be revoked by the Director of Public Works or designee. If a person has not followed the terms and conditions of this ordinance in work done pursuant to a prior permit, new permits may be denied or additional terms required. (8) Appeal From Denial or Revocation of Permit. Appeal from denial or revocation of permit or from the decision of the Director of Director of Public Works or designee shall be to the City Council. Appeal shall be filed with the City Secretary within fifteen (15) days. (9) Violation of Ordinance a. A person commits an offense if they: 1) perform, authorize, direct, or supervise construction without a valid permit issued under this Ordinance; 2) fail to comply with restrictions or requirements of a permit issued under this Ordinance; 3) fail to comply with a lawful order or regulation of the director issued pursuant to this Ordinance; or 4) violate any other provision of this Ordinance. b. A person commits an offense if, in connection with the performance of construction in the public right -of -way, they: 1) damage the public right -of -way beyond what is incidental or necessary to the performance of the construction: 2) damage public or private facilities within the public right -of -way; 3) fail to immediately clear debris associated with the construction from a public right -of -way after the construction is completed; or 4) fail to stabilize any disturbed area from erosion within fourteen (14) days after construction is completed, unless an alternative timeframe is approved by the Director of Public Works or designee. c. A culpable mental state is not required to prove an offense under this Ordinance. A person who violates a provision of this Ordinance is guilty of a separate offense for each day or portion of a day during which the violation is committed, continued, authorized, or directed. An offense under Subsection (9)(b)(3) is punishable by a fine of not less than $500.00 or more than $2,000.00. Any other offense under this Ordinance is punishable by a fine of $500.00. Ordinance No. 1659, Page 11 of 13 d. This Ordinance may be enforced by a civil court action in accordance with state or federal law, in addition to any other remedies, civil or criminal, the City has for a violation of this Ordinance. e. Prior to initiation of civil enforcement litigation, the permittee, or any other person who has violated a provision of this ordinance, shall be given the opportunity to correct the violation within a timeframe specified by the Director of Public Works or designee. This subsection does not prohibit the Director of Public Works, designee, or the City from taking enforcement action as to past or present violation of this Ordinance, notwithstanding their correction. f. If a permittee has been convicted of an offense under this Ordinance in municipal court, no additional permits will be granted to the public service provider and/or the permittee until the offense has been corrected and any direct or indirect costs incurred by the City have been reimbursed. SECTION II SAVINGS CLAUSE - That Chapter 86 of the Code of Ordinances, City of Euless, Texas, as amended, shall remain in full force and effect, save and except as amended by this ordinance. SECTION III INDEMNITY A. Except as to Certificated Telecommunication Providers, each person placing facilities in the public right -of -way shall promptly defend, indemnify and hold the City harmless from and against all damages, costs, losses or expenses: 1. for the repair, replacement, or restoration of City's property, equipment, materials, structures, and facilities which are damaged, destroyed or found to be defective as a result of the person's acts or omissions; and 2. from and against any and all claims, damages, suits, causes of action, and judgments for: a. damage to or loss of the property of any person (including, but not limited to, the person, its agents, officers, employees and subcontractors, City's agents, officers and employees, and third parties); and/or b. death, bodily injury, illness, disease, loss of services, or loss of income or wages to any person (including, but not limited to, the agents, officers and employees of the person, person's subcontractors and City, and third parties), arising out of, incident to, concerning or resulting from the negligent or willful act or omissions of the person, its agents, employees, and/or subcontractors, in the performance of activities pursuant to this ordinance. B. This indemnity provision shall not apply to any liability resulting from the negligence of the City, its officers, employees, agents, contractors, or subcontractors. Ordinance No. 1659, Page 12 of 13 C. The provisions of this indemnity are solely for the benefit of the City and are not intended to create any rights, contractual or otherwise, to any person or entity. D. A permittee who is a Certificated Telecommunication Provider as defined in Chapter 283, Texas Local Government Code, as amended, shall give the City the indemnity provided in Section 283.057, Texas Local Government Code, as amended. SECTION IV SEVERABILITY The provisions of this ordinance are severable. However, in the event this Ordinance or any procedure provided in this Ordinance becomes unlawful, or is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, illegal or otherwise inapplicable, in whole or in part, the remaining and lawful provisions shall be of full force and effect and the City shall promptly promulgate new or revised provisions in compliance with the authority's decision or enactment. SECTION V EFFECTIVE DATE - The fact that the present ordinances and regulations of the City of Euless, due to legislation, have become inadequate to control right -of -way management within the corporate limits of the City of Euless, creates an emergency for the immediate preservation of the public business, property, health, safety and general welfare of the public which requires that this ordinance shall become effective from and after the date of its passage as provided by the charter of the City of Euless. PRESENTED AND PASSED ON FIRST AND FINAL READING at a regular meeting of the Euless City Council on the 26th of October, 2004, by a vote of 6 ayes, 0 nays, and 0 abstentions. APPROVED: Mary Lib S eh, Mayor ATTEST: Susan Crim, C C, City Secretary APPROVED AS TO FORM: Bo McFarland, City Attorney Ordinance No. 1659, Page 13 of 13