§ 40-200. Construction and maintenance of shelters for users of public transportation.

(a)

Permit required. It shall be lawful for any person owning or leasing real property abutting the public right-of-way (hereinafter referred as "landholders") or for any person holding a franchise granting the right, privilege and franchise to place advertising materials upon shelters constructed pursuant to a permit issued under this section (hereinafter referred to as "franchisees") or for the Metropolitan Transit Authority (a governmental entity organized and existing under and pursuant to the provisions of Article 1118x, Texas Revised Civil Statutes) to use and occupy a designated area of the public right-of-way as hereinafter stated for the construction and maintenance of a public transportation structure upon obtaining a permit for each such use and occupancy from the Director of Houston Public Works or his designee (hereinafter referred to as the "director"). All persons seeking such permit shall make a written application on a form provided by the director and thereby make a request for the privilege, license and permission to use, occupy and maintain a designated area of the right-of-way, which area, if the applicant is applying in the capacity of a landholder, must abut the applicant's property. An applicant may request one or more permits in a single application.

(b)

Approval of permits.

(1)

No permit shall issue for the use or occupancy of the city right-of-way until the director of administration and regulatory affairs shall certify to the public necessity of such use, occupancy and maintenance for a public transportation structure.

(2)

No permit shall issue for the use or occupancy of the city right-of-way until the director shall certify that such permit will comply with and be consistent with the current city traffic plans and standards.

(c)

Inspection under permit. After the approval of the application and the issuance of the permit, and the payment of the permit fee stated for this provision in the city fee schedule, the director shall from time to time make inspections of such transportation structures and occupied areas.

(d)

Revocation of permit.

(1)

If any inspection of a public transportation structure, improvement, facilities or occupied area under the provisions of this section reveals that the permittee has failed to comply with the terms and provisions of the Construction Code or that the structure is in a dangerous or hazardous condition for human occupancy, the permittee shall be notified by certified mail to make such repairs as are necessary in order to comply with the terms and provisions of the Construction Code within ten days after the receipt of such notice by certified mail. If the permittee fails to make the repairs or to otherwise comply with this section or the Construction Code, the permit will be revoked.

(2)

Upon revocation, the permittee shall have the right to appeal the decision of the director within ten days of the date of such revocation. The decision of the city council on the revocation appeal shall be final. The city shall have the right to remove such public transportation structure from the city right-of-way after the expiration of the ten-day appeal period or to make whatever arrangements with respect thereto as the city council may desire.

(e)

Terms and conditions of permit.

(1)

Any permit granted by the city for the use and occupancy of the city right-of-way shall be issued to the applicant upon the following terms and conditions of this section. In the case of franchisees, the permit holder shall also be subject to the terms and conditions of the franchise.

a.

All permits issued by Houston Public Works to an abutting landowner or his lessee shall contain the legal description of the property which abuts the city right-of-way.

b.

All permits issued under this section must contain a legal description or plat map of the area of the right-of-way to be occupied by the proposed structure.

c.

Upon acceptance of the permit it shall be acknowledged by the applicant and filed for record by the city in the office of the county clerk.

d.

The proposed use of the city's right-of-way under a permit shall not interfere with the city's use thereof.

e.

The proposed construction within the city's right-of-way shall be under the supervision of and in accordance with plans and specifications approved by the director.

f.

At all times during the construction and building of any structure within the city's right-of-way, the street or highway or other public right-of-way shall be kept open for vehicular and pedestrian traffic in a reasonable manner, and no obstruction of the sidewalks shall be permitted so as to prevent the use thereof by pedestrians for an unreasonable period of time; dirt and other material removed from the building and construction of any such structure within the city's right-of-way shall not be permitted or allowed to remain on the street or sidewalk and all such dirt and other material removed from the building and construction site shall be at the risk, liability and expense of the permittee; all excavations or obstructions of any kind which are permitted during the period of permittee's construction, shall be properly barricaded, and well-illuminated during the night time, all subject to the approval of the director.

g.

After the completion of the construction within the city's right-of-way, the permittee shall at his own cost and expense replace any sidewalks and surface of any streets that were damaged or removed in the construction of any improvement in a condition equally as good as they were immediately prior to the time of excavation or construction and all of such sidewalks and streets shall be maintained in a good and usable condition for one year after said sidewalks and streets have been replaced, all subject to the approval of the director. All damage, if any, to said sidewalks and streets caused by the construction, use, maintenance and operation by the permittee shall be repaired by and at the cost and expense of the permittee. In the event the permittee fails or refuses to proceed with diligence with the performance of any work in connection with the replacement, rebuilding or resurfacing of streets and sidewalks within 30 days after receiving written notice from the director the city may do such work or cause same to be done all at the sole risk, liability and expense of the permittee.

(f)

Conditions of use and occupancy after construction. In general, it shall be a condition of such use and occupancy that any structure shall be made available without discrimination at all times to all persons using public transportation.

(1)

Insurance. Permittee agrees that as a condition of such use and occupancy of the right-of-way that he shall provide written evidence that he has in full force and effect, during such use and occupancy, public liability insurance in the amount of not less than $300,000.00 per accident for property damage and $300,000.00 for public liability for accidental bodily injuries or death occurring in relation to or arising out of the permittee's maintenance, occupancy or use of the right-of-way.

(2)

The city shall have the right at any and all times upon 30 days' written notice by certified mail to the permittee, its representatives, successors or assigns to take possession of and use all or any part of such city right-of-way in the event that such use be desired and needed by the city as determined by the city council for street, sewer, transportation or any other public or municipal purpose or use. In such event, the city shall have the right to cancel his license and permit as to the portion of the property or part of the right-of-way so designated and required by the city.

(3)

The permittee shall have the right at any time upon 30 days' written notice to the city to relinquish and give up to the city the use and possession of all or any part of the property or right-of-way described in the permit as it and the city may so cancel the license and permit as to that part so relinquished and given up.

(4)

All privileges, licenses and permits granted hereunder shall, subject to the terms and provisions of this section and unless not otherwise renewed or extended, remain in force and effect for a period not to exceed ten years from and after the issuance of the permit hereunder. Should a franchisee's franchise expire or terminate sooner than said ten years, any permits held by the franchisee shall terminate simultaneously. Upon the termination of the privilege and permit issued hereunder and unless otherwise provided for by any franchise agreement, permittee, assigns, successors and representatives bind and obligate themselves to restore the city's right-of-way occupied under the provisions of the permit to the original condition of such right-of-way as it existed prior to any construction or to fulfill any other condition for the continued existence of the structure or restoration of the right-of-way which may be acceptable to the city council, and should the permittee, assigns, successors or representatives fail or refuse to do so within 30 days after such termination, then, in that event the city may do or have done the work necessary for such purpose at the sole cost, risk and liability and expense of permittee, their assigns, successors and representatives.

(5)

After the completion of any construction within the city's right-of-way under the terms of a permit granted hereunder, should the city desire to lay or construct its utility lines including sewer lines, water lines or any other pipe or conduit under, across or along said street within its right-of-way, any and all additional cost in the laying or construction of the aforesaid utility lines including pipes and conduits within said street right-of-way which may occur by reason of the existence of the construction or occupancy granted to permittee under the terms hereof shall be paid to the city by the said permittee, his assigns, successors and representatives.

(6)

By the acceptance of such permit the permittee, his assigns, successors and representatives agree, obligate and bind himself or itself to indemnify and does hereby indemnify and hold and save forever harmless solely the city, insofar as said city is concerned from all liability, cost or damage on account of the use, occupancy or maintenance of any part of the city's right-of-way and the structures and improvements therein. This indemnity shall continue in force and effect during the existence of any permit or permits issued under the provisions of this section.

(7)

No transfer or assignment of any permit granted under the terms and provisions of this section shall be made without the approval of the city council.

(8)

No permittee shall knowingly cause, permit or allow any advertising materials, posters, billboards, handbills of any nature whatsoever to be posted, distributed or allowed to remain within any structure or upon the premises of the public transportation structure for which such permittee holds authority to use or occupy the city's right-of-way pursuant to this section; provided, however, an incidental use of a structure for advertising purposes by a permittee shall be lawful if the permittee holds a franchise granting such privilege upon such terms and conditions as the city council may impose.

(g)

The breach or violation of any one of the terms, provisions or conditions set forth in subsections (e) and (f) hereof shall be sufficient to constitute grounds for the cancellation and forfeiture of the privilege, license and permit granted under the authority of this article. Any such cancellation and forfeiture may be exercised upon 20 days' written notice by the city to the permittee, a representative or successor unless at the expiration of such time any such violation or breach has ceased or the permittee is proceeding with all diligence and good faith to remedy such violation or breach and thereafter continues without delay with such remedial work or correction until such violation or breach has been completely remedied.

(h)

It is the intent of the city council by the enactment of this section to regulate the surface, use and occupancy of public rights-of-way by persons as defined herein, specifically those landowners and their lessees abutting the city right-of-way and franchisees in accordance with the city's general power of exclusive dominion, control and regulation of the public streets and highways as provided by law. However, this section shall not be construed as an assertion by the city of any property rights in derogation of the abutting landowner's fee simple title in those cases where the city does not own the fee simple title.

(Code 1968, § 41-200; Ord. No. 72-1850, § 1, 10-11-72; Ord. No. 78-1870, § 1, 9-20-78; Ord. No. 79-1281, §§ 1, 2, 8-7-79; Ord. No. 90-635, § 124, 5-23-90; Ord. No. 93-514, § 82, 5-5-93; Ord. No. 02-399, § 83, 5-15-02; Ord. No. 08-52, § 67, 1-16-08, eff. 1-26-08; Ord. No. 2011-1168, § 13, 12-14-2011; Ord. No. 2018-11 , §§ 49, 50, 1-10-2018)