(A) Registration. A public service provider with existing facilities within the public right-of-way must register with the city within 60 days of the effective date of this chapter. Any public service provider who does not have existing facilities within the public right-of-way and who wishes to install new facilities must first register with the city. Registration shall be in accordance with the following requirements:
(1) Prior to registration, a public service provider must be either a certificated telecommunications provider under Tex. Local Gov't Code Chapter 283, have a certificate of convenience and necessity under Tex. Water Code Chapter 13, have a franchise, interlocal or license agreement with the city or be authorized by state statute to operate facilities within the public right-of-way. Registration shall otherwise be denied.
(2) The registration must be on a form furnished by the Director and made in the name of the public service provider that owns the facilities. The form must be filled out completely and accurately. Any omissions or inaccuracies on the form may be cause for denial of the registration at the city's discretion.
(3) If information provided as part of the registration changes, the public service provider must inform the Director in writing not more than 30 days after the date the change occurs.
(4) The public service provider shall include the following with the registration:
(a) The name of the public service provider using the public right-of-way, including any business name, assumed name, or trade name the public service provider operates under, or has operated under within the past five years.
(b) If the public service provider is a certificated telecommunications provider, a copy of the certification issued by the Texas Public Utilities Commission to provide local exchange telephone service.
(c) A copy of any franchise, agreement or license issued by the City of Cleburne or statute authorizing the public service provider to use the public right-of-way.
(d) The name and mailing address of the officer or agent designated as the person authorized to receive service of process on behalf of the public service provider.
(5) The public service provider must provide proof of insurance and appropriate bonds. The requirements for insurance and bonds are provided in divisions (B) and (C) below.
(B) Insurance requirements.
(1) A public service provider shall obtain and maintain insurance throughout the time it has facilities in public rights-of-way. The city reserves the right to review the insurance requirements, and
to reasonably adjust insurance coverage and limits when the City Attorney determines that changes in statutory law, court decisions, or the claims history of the industry or the public service provider require adjustment of the coverage. Insurance policies shall meet the following minimum requirements:
Workers' Compensation and Employer's Liability Insurance
Workers' Compensation Statutory Limit
Employer's Liability $100,000 Each Accident
$100,000 Disease – Each Employee
$500,000 Disease – Policy Limit
(Employer's Liability not required if policy limit is greater than $10,000,000)
Liability Insurance
Commercial General Liability $1,000,000 Per Occurrence
(No standard coverages are to be excluded by endorsement) The policy shall provide blanket contractual liability insurance for all written contracts and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage.
Automobile Liability Insurance
Commercial Auto Liability Policy $500,000 Combined Single Limit
(including coverage for owned, hired, and non-owned autos)
Umbrella Liability
(Following Form and Drop Down Provisions Included) $5,000,000 Each Occurrence
(2) In addition to the above requirements, the insurance required under this section shall:
(a) Be written with the City of Cleburne as an additional insured, except on worker's compensation and employer's liability insurance, using an endorsement Form GC 20 26 or broader;
(b) Provide for 30 days notice of cancellation to the city, for nonpayment of premium, material change, or any other cause;
(c) Be written through companies duly authorized to transact that class of insurance in the State of Texas. Insurance is to be placed with insurers with a Best Rating of no less than A-:VII;
(d) Waive subrogation rights for loss or damage so that insurers have no right to recovery or subrogation against the City of Cleburne, it being the intention that the required insurance policies shall protect the city, its officers, and employees and be primary coverage for all losses covered by the policies; and
(e) Provide that notice of claims shall be provided to the Director by certified mail.
(3) The policy clause "Other Insurance" shall not apply to the city if the city is an additional insured under the policy.
(4) For purposes of this section, the city will accept a self-insurance program of the public service provider if the approved in advance by the city and:
(a) Provides the equivalent coverage as required herein if the public service provider demonstrates by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the city; or
(b) In the case of a cable service provider who holds a state-issued certificate of authority and is self-insured under the provisions of state law, such self-insurance program provides the same defense and claims processing as required by this section.
(5) A certificate of insurance providing proof of coverage shall be provided to the Director with the registration form.
(6) If a public service provider is subject to statutory limitations for damages resulting from liability less than the minimum coverages provided in division (B)(1) above, the public service provider shall not be required to provide proof of insurance coverages in excess of the statutory requirements.
(C) Bonding requirements.
(1) Each year, not later than February 1, a public service provider shall, without cost to the city, provide a maintenance bond for the construction work anticipated to be performed in the public rights-of-way in the upcoming year. The maintenance bond shall guarantee the work for two years from the date of its completion and shall be in the amount of 100% of the cost of the construction work, including the cost of the restoration of the public right-of-way, to be performed in the upcoming year. Each bond shall be executed by a surety company authorized to do business in the State of Texas and acceptable to the city. At the option of the service provider, maintenance bonds may be provided for each project.
(2) A public service provider that has assets in excess of $20,000,000 may annually submit a written request for a waiver from the bonding requirements. The request for a waiver shall be filed not later than the November 1 before the calendar year for which the waiver is sought.
(a) The request shall set forth in detail the basis for the request including but not
limited to:
1. The public service provider's performance history in the city;
2. Documentation, in a form acceptable to the city, that demonstrates that the public service provider has assets in excess of $20,000,000; and
3. Documentation, in a form acceptable to the city, that demonstrates that the public service provider has assets or reserves sufficient to cover the amount of the bonds.
(b) Within 30 business days of receipt of a written request for a waiver, the Director, with good cause, may grant a waiver to the bonding requirements. In making this decision, the Director shall take into account, among other things:
1. The public service provider's record of performance in the city's
rights-of-way;
2. The public service provider's record of compliance with this chapter;
3. A showing of financial responsibility by the public service provider to complete the proposed project, and;
4. Any other factors deemed relevant to management of the city's rights-of-way.
(3) A bond may not be required from a cable service provider for any work consisting of aerial construction except that a bond as provided for herein may be required of a provider that cannot demonstrate a record of at least four years' performance of work in any municipal public right-of-way free of currently unsatisfied claims by a municipality for damage to the right-of-way.
(D) The requirements for insurance may be satisfied by public service providers with a current franchise or license or other agreement if their current franchise or license adequately provides for insurance coverage which will afford equivalent protection for the city. The requirements for bonds may be satisfied by public service providers with a current franchise, interlocal or license agreement if the agreement adequately provides for bonds.
(E) After registration has been completed, a separate construction permit for each work location must be obtained from the city's Engineering Department. Nothing in this section relieves a public service provider from obtaining a construction permit under this chapter to perform work in the public right-of-way, except as otherwise provided in this chapter.
(Ord. 06-2006-46, passed 6-13-06) Penalty, see § 157.99