HomeMy WebLinkAbout88-2749419
A~ENDING CHAPTEr21 - STREETS AND SIDEWALKS
4th draft 8/15/88
ORDINANCE NO. 88-~749
AN ORDINANCE AMENDING CHAPTER 21~ STREETS AND
SIDEWALKS OF THE PLAINVIEW CITY CODE DEFINING
TERMS; PROVIDING FOR PROHIBITED ACTIVITIES AND
USES ON PUBLIC RIGHTS OF WAY; PROVIDING FOR USE
AND CARE OF PUBLIC RIGHT-OF-WAY; PROVIDED FOR
LICENCES TO ENCUMBER PUBLIC .RIGHT~OF-WAY;
~D PROVIDING FOR A PENALTY AND SEVERABTLITY
CLAUSE.
WHEREAS, the City Council of the City of Plainview, Texas
desires to encourage and provide for orderly, safe, arid healthful
development of areas within the City; and
WHEREAS, the City Council of the City of Ptainview, Texas
finds it to be in the best interest of the citizens of the City to
provide for prohibitions and licensing procedures to protect 'the
public right-of-way;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY' COUNCIL OF TMF. CITY
OF PLAI~gIEW, TEXAS:
THAT Chapter 21 of the Plainview City Code be amended as
follows:
ARTICLE I~ IN GENERAL.
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Section 21-8 Obstruction of Public Ways.
(A) Definitions
AI~: a minor way which is used primarily for
installation of public utilities and for vehicular
service access to the back side or the-side of the
property otherwise abutting the. street.
(2) ~it~: City of Plainview~ Texas.
(3)
(4)
Easement: a right held by-the City to be used for
access, drainage, or the placement of utilities
such as, but not limited to~ water, sewe~r gas,
telephone, cable television, and electrical lines.
Right-of-wal: any strip or area of land including,
surface, overhead or air space, or underground or
subsurface space which is used or intended to be
used or dedicated to be used wholly or in part as a
public street, alley, or as the location of public
walkways and utility or drainage facilities or
installations.
Sidewalk: the concrete or asphalt surfaced portion
of a street between either the curb line or roadway
and the adjacent property line intended for
pedestrian use.
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(6)
Street: the entire width between the boundary
lines of every way, other than an alley, publicly
maintained when any part of it is opened to the
public for vehicular use.
(7)
Other Definitions: definitions not expressly
described herein are to be determined in accordance
with customary usage in municipal planning and
engineering practices.
(B) ~WF4L ACTIVI~ES. The following activities., uses,
conditions, or occurrences on public right-of-way shall be deemed
unlawful:
(i) The operation of any machinery having tracks, feet,
or pulling lugs over or along any paved streets or
alleys.
(2)
The hauling of gravel, brick, sand, concrete, ready
mix concrete or mortar in such a manner to scatter
or waste these substances onto any streets, alleys,
or sidewalks.
(3)
To drop, spill, or allow to leak out of any tank or
vessel, whether connected with a motor vehicle or
otherwise, any gasoline or other oil or petroleum
base substance on to any street, alley, or
sidewalk.
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422
The discharging of any odorous water, sewage,
waste water~ waste oils, kitchen grease, kitchen
slop water, mop water, or other offensive or
hazardous substance onto any public right-of-way.
(5)
To place, locate, store, construct, install, or
maintain ~ny structure, building, object, vehicle,
device, fencer wall or other material on-or within-
any public right-of-way. Trees and other living,
domesticated vegetation located within the parkway
area of a paved street. Mailboxes are exempt
from this requirement.
(6)
To cast, place, or store any animal, offal,
garbage, trash, refuse, or debris into or upon any
street, alley, sidewalk, street gutter or other
public right-of-way.
(7)
To construct or place any temporary or permanent
structure within, on, or over any public utility or
drainage Easement except for utilities or other
facilities associated with d~ainage. The property
owner may place removable section type fencing,
asphalt or concrete paving, or landscaping within
any dedicated public utility Easement. The City of
Plainview or franchised utility of the City shall
not be required to replace anything that must be
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RELF2~SE IN FULL
THE STATE OF TEXAS
COUNTY OF HALE
1. I,
of $
KNOW ALL ~ BY THESE PRESENTS:
· in consideration of the sum
, receipt of which is hereby acknowledged and
confessed, have released, acquitted, and forever discharged the
CITY OF PLAINVIEW, TEXAS, and its agents, servants, and employees
and all natural or corporate persons in privity with it from every
claim or cause of action of any kind whatsoever (at common law,
statutory, or otherwise; known or unknown; and now existing or
that may later arise), that I may have against them, or any of
them, directly or indirectly, arising out of my claim for overtime
compensation under the Fair Labor Standards Act and the 1985 FLSA
Amendments.
2. I, , have previously filed suit in
the United States District Court for the Northern District of
Texas· Lubbock Division (Civil Action No. 5-87-31) seeking damages
as a result of alleged violations of the Fair Labor'Standards Act
and the 1985 FLSA Amendments by the City of Plainview, Texas. The
consideration mentioned above is accepted by me in full compromise
and settlement of all claims, demands, penalties, damages, and
causes of action being asserted or which could be asserted in this
lawsuit.
Exhibit "A"
RELEASE IN FULL
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removed during the course of maintenance,
construction or reconstruction within any public
utility or drainage Easement.
423
(C) LICENSE TOENC~BE~RIGtF~--OF-WA¥, The following shall control
the consideration of requests for encumbrances on~ over, under, or
through public rights-of-way.
The right to encumber the public right-of-way may
be granted only by license and every Grantee of a
license shall agree to indemnify and hold the City
of Plainview harmless from any and all damages to
persons or property or both, arising in any
manner out of the use of licensed premises. Each
applicant for a license shall submit a non
refundable deposit of Two Hundred Fifty Dollars
($250.00) tO cover the expenses of the processing
costs associated therewith. The total deposit
shall be credited toward the issuance of the first
year license fee, Should the applicant be approved
for a license. The applicant is responsible for
the establishment of the fair market value in the
areas of consideration for license-. Fair market
valus shall be established by ~ competent appraiser
and in accordance with customary practices in real
estate appraisal.
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424'
(2)
No individualr person, firm, or corporation shall
be granted a license for an encumbrance of the
public right-of-way that would adversely affect the
public health, safety, or welfare of the citizens
of the City of Plainview.
(3)
Subject to the exemptions set forth in
sub-paragraph (E), no license shall be issued or
granted for an encumbrance of the public
right-of-way for less than a three (3) foot width.
(4)
Subject to the exemptions set forth in
sub-paragraph (E), a licensee sh&ll pay a license
fee depending-upon the amount of right-of-way
encumbered as set oat below. In ~o event shall a
license-fee be less than TWO HIINDRED FIFTY
DOLLARS-($250.00) for a periOd of one year.
(a)
For a private license authorizing a surface
encroachment at the sidewalk level, the
annual license fee
market value times
encumbrance.
shall be 7% of the fair
the square footage of
For a private license authorizing an air
space encroachment above the sidewalk level,
the annual license fee shall be 7% of the
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fair market value times the
of encumbrance~
square footage
425
(c)
For a private license to encumber subsurface
area, the annual license fee shall be 2% of
the fair market value times the square
footage of encumbrance.
(5)
Said license fee for each licensee sh&ll be
subject to annual review by the City Council.
(6)
The total deposit shall be credited toward the
license fee for the issuance of the first year of a
license should such be granted. Any individual,
person, firm or corporation wishing to encumber the
public right-of-way in any-manner shall submit a
license application and require~ deposit to the
Director of Municipal Services. Upon receipt and
normal review by various City department and public
utility companies of such application the Director
of Municipal Services Shall forward the request to
the City Manager for' approval.
(7)
Any license granted hereunder shall be drafted
by- the City Attorney's Office.
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In the event any individual, firm~ person, or
corporation, is denied a license, he shall have the
right to appeal such denial to the City Council by
filing a written notice of appeal with the City
Secretary no later than five ~5) days fromhis/her
receipt of notice o-f the denial of the request.
(9)
The City Council shall hear the applicant's request
within 30 ~ays of notice of appeal and shall
determine whether or not to uphold the denial, to
grant the request, as presented or to modify it.
(D) ~ION. Any applicant, who wishes to encumber public
rights of way, for installation of: a private water line, with a
diamete~ of one inch (l") or less, and foz a distance of not more
than three hundred-feet (300'); a private sewer line, with a
diameter of four inches (4") of less~ and for a distance of not
more than. three hundred feet (300'); and overhead line fo~ a
~istance of not more than three hundred feet (3Q0'); or for an
encroachment by a building, are hereby exempt from the annual
license fee and shall be sub3ect to a one time license fee of fift~
dollars ($5~.00). An applicant who wishes to encumber the p~blic
right of way adjaceRt to the applicants private property for the
purpose of installation of a pri~ate lawn sprinkler or irrigation
system is hereby exempt from the license fee requirements.
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427
(E) NO OBST~'~"TI~ OF PUBLIC PROPEA~t~Z. Applicant. shall not,
unnecessarily or for an unreasonable period of time, obstruct or
interfere witk the public use of any streets, roads, highways,
alleys or public ways owned~ or controlled by the City.
(F) REPAIR OF DAMAGES. Applicant shall repair any and all damages
caused solely by applicant to any real property owned or~ controlled
by the City and shall restore, as nearly as practicable, such real
property to substantially its condition immediately prior to the
incident causing such damage. Applicant shall commence such
reDa. irs immediately upon completion of the work or activity in
which applicant was involved at the time the damage occurred and
shall complete such repairs as promptly as possible. Applicant
shall maintain the repairs to the satisfaction of the City for one
year from the date-the surface of said street, road, highway, alley
or public way is broken for such construction or maintenance work,
after which time, responsibility for the maintenance shall become
the duty of the City. The City may, from time to timex adopt
reasonable ordinances regulating such work.
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(G) CON~%~T OF WORK AND ACTIVITIES. Applicant shall use
reasonable- care in conducting its work and activities in order to
prevent injury to any person and u-nnecessary damage to any real or
personal property.
(H) USE OF A~LEYS. AppliCant Shall attempt to utilize the alleys
of the City insofar as is reasonably practical in conducting its
work and activities hereunder. Notwithstanding the foregoing,
however, applicant may, when approved by City~ utilize the streets
and any other public ways owned or controlled by the City to
perform such work and activities.
(I) C~ANGES IN ENCROA~}~IE~rI~J. Applicant shall~ upon written
request from the City, change the location, position, route, depth
or height of any encroachment or other components of the
encroachment if and when ~ach change becomes reasonably necessary
because of a change in the grade of any street~ road, highway,
alley, public way~ or other real property owned or controlled by
the City or because of any change in the location of, or in the
manner of maintaining, constructing, laying, repairing, removing,
replacing, installing, or operating, any pavement, curbs, gutters~
or Underground o~ aboveground wires, cables or water or sewer pipes
owned or controlled by the City. The City's written red, est for
such change must set ~orth, in detail, all of the essential
elements and specification of the requested change.
Ail of the changes in location, position, route, depth or height
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described in the immediately foregoing paragraph shall be made at
applicants' sole expense, provided, however, that ~Dplicant may
seek payment from any governmental entity or agency (except the
CitY,) person, or party of any ~mount to which applicant may
lawfully be entitled because of such change in location, position,
route, depth, or height, or because of the abandonment of any
encumbrances or other component of the encumbrances regardless of
whether such encumbrances or component is wholly or partially
located in any public or private way or right-of-way.
(J) MAPS OF ENCU~BI~%NCES. Applicant shall, at all times, keep on
file With the City Engineer a map or maps showing the-current
location of all encumbrances and other components of applicant's
facilities located in the City.
~K) JURISDI'C~ION. Any agreement shall be construed under and in
accordance with the laws the laws of the State of Texas, and all
obligations of the parties hereunder are performable in Hale
County, Texas.
(L) CO~I~. In the-event of any conflict between the provisions
of this section and any other provision of the Plainview City Code
or other ordinances, this Section shall controt~
(M) PENALTY. Any person, individual, firm, or corporation found
guilty of violating ~ny of the provisions of this article shall be
deemed guilty- of a misdemeanor and subject to the penalty
provisions of Chapter i, Section 1-5 of the Plainview City Code and
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430
each and every day that a provision of this ordinance is violated
shall constitute a separate offense.
(N) SEV~RABILITY. If any section, paragraph, sentence, clause,
phrase, or word within this article, is hereby declared to be void,
invalid, or unconstitutional, such unconstitutionality, voidness,
or invalidness shall not affect any of the remaining sections,
paragraphs, sentences, clauses phrases, on words of this article.
of
PASSED AND APPROVED on first reading this the
., 1988.
PASSED AND APPROVED on second reading this the
__, 1988.
day
day of
ATTEST:
E.V. Ridtehuber, Mayor
Carla Reese, City Secretary
APPROVED AS TO CONTENT:
James P. Jeffers, City-Manager
APPROVED AS TO FORM:
David Blackburn, City Attorney
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