Ordinance No. 12,526ORDINANCE NO. 12,526
AN ORDINANCE OF THE CITY OF BAYTOWN, TEXAS, AMENDING
CHAPTER 62 "NATURAL RESOURCES" OF THE CODE OF ORDINANCES,
CITY OF BAYTOWN, TEXAS, BY ADDING A NEW ARTICLE NUMBERED
AND ENTITLED ARTICLE I "GEOPHYSICAL/SEISMIC TESTING" TO
REGULATE SEISMIC TESTING; PRESCRIBING A MAXIMUM PENALTY
OF TWO THOUSAND AND N0/100 DOLLARS ($2,000.00); PROVIDING A
REPEALING CLAUSE; CONTAINING A SAVINGS CLAUSE; AND
PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That Chapter 62 "Natural Resources," of the Code of Ordinances, City of
Baytown, Texas, is hereby amended by adding a new article, to numbered and entitled Article I
"Geophysical/Seismic Testing," which said section reads as follows:
CHAPTER 62. NATURAL RESOURCES
Article I. Geophysical/Seismic Testing
Sec. 62-1. Definitions.
As used in this article, the following words and terms shall have the meanings ascribed to
them in this section, unless the context of their usage clearly indicates another meaning:
City's jurisdiction shall mean and include the territory within the city's limits and
territory within 5,000 feet outside of the city's limits.
Chief shall mean the fire chief of the city.
Fire Code shall mean the fire code adopted in section 38-61 of this code as amended in
section 38-62 of this code.
Seismic testing means an exploration method in which low frequency sound waves are
generated on the surface to find subsurface rock structures that may contain hydrocarbons.
Sec. 62-2. Permit.
(a) Required. It shall be unlawful for any person, acting either for himself or as agent,
employee, independent contractor or servant of any other person, to conduct seismic
testing or surveys or other geophysical operations within the city's jurisdiction without a
geophysical/seismic testing permit having first been issued in accordance with this
article.
(b) Application. Applications for a geophysical/seismic testing permit must be made to the
city clerk by the person desiring to conduct the geophysical/seismic testing within the
city's jurisdiction at least forty-five (45) business days prior to the commencement of any
seismic testing activities. Applications must be verified under oath on forms supplied by
the city clerk and shall include or be accompanied by the following information:
(1) the date of the application;
(2) the name and address of the applicant; if the applicant is a corporation, the state of
incorporation; and if the applicant is a partnership, the names and addresses of the
general partners, e-mail addresses for contacts, including emergency contacts, and
a 24 hour emergency phone number;
(3) a non-refundable application fee of $1,000.00;
(4) the location of seismic survey;
(5) a detailed map showing the locations of all vibration and geophone points;
(6) a detailed explanation of the seismic survey method to be used on site;
(7) the date and time the seismic survey will be conducted;
(8) the date and time the seismic survey will be completed;
(9) identification on a map and by address of all staging areas;
(10) applicant's safety procedures;
(11) a traffic flow plan for the proposed testing operations;
(12) evidence or documentation that the activity will comply with and adhere to the
requirements of all applicable city ordinances, regulations, and rules; and
(13) an insurance certificate meeting the requirements of section 62-4.
(c) Issuance; denial. If, after such application is filed pursuant to this division, the chief
determines that:
(1) the application complies in all respects with terms of this article and
(2) the proposed operations
a. will not create a public nuisance,
b. will not be contrary to the public safety,
C. comply in all respects with this article, and
d. are acceptable after considering the following factors:
1. the location of the point relative to surrounding improvements,
pipelines, wells;
2. the quantity and nature of the proposed seismic survey to be used
in implementing the exploration; and
3. the pendency of other activities at and adjacent to the point of
exploration.
The city clerk shall contact the applicant to advise the applicant of the status of his
application and require the applicant to tender the bond required in section 62-3 and the
permit fee required in section 62-3 to the city clerk. Once the bond is received, the city
clerk shall issue a permit. If the chief denies an application for a permit pursuant to this
section, an appeal to the city council may be made by such applicant by filing written
notice of appeal within 10 days of the denial with the city clerk.
(d) Conditions. Each permit issued under this section shall:
(1) By reference have incorporated therein all sections of this article with the same
force and effect as if this article were copied verbatim in the permit;
(2) Specify that seismic testing shall be completed within 90 days from the date of
the issuance of the permit or the permit shall be forfeited; provided however,
such forfeiture shall not affect the right of the applicant to apply for another
permit; and
(3) Not be transferable.
(e) Revocation. The chief shall have the authority to revoke a permit for any one or more of
the following reasons:
(1) Violation of any of any laws of a federal, state or local government;
(2) Violation of any provision of this article;
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(3) Failure to meet the requirements set forth in its application or any deviation from
the information submitted in the application; and
(4) Failure to comply with the road repair agreement.
Revocation shall take immediate effect upon notice to permittee by the chief, subject to
reinstatement if the permittee files written notice with the city clerk of permittee's desire
to appeal the permit revocation within 10 days of the date the permit is revoked. Such
notice must detail the reasons for the appeal.
(f) Display. A permit issued pursuant to this section shall be displayed at all times in such a
manner that it is conspicuous from a public way.
62-3. Bond; permit fee.
(a) Bond. Before a permit is issued under this article, the applicant shall be required to a
tender a $100,000.00 cash bond to the city, the purpose of which is to protect the city
from any damages to traffic signs/markers, roads, bridges, drainage facilities, and rights-
of-way owned by the city caused by permittee's operations. In the event the city, at its
sole and exclusive option, determines that any repairs to the roads, bridges, drainage
facilities, and rights-of-way are required as a result of applicant's operations, the City
shall make such repairs and deduct the cost thereof from the cash bond amount without
further notice to permittee. The city shall provide permittee a monthly accounting of all
repairs and deductions made to the cash bond, which accounting shall be made only if a
deduction has been made for which no prior accounting has been tendered. Upon
expiration of one (1) year from the effective date of the permit, the city shall refund any
balance of the cash bond to permittee, upon written application for same. Should the
costs to repair or replace damaged property exceed the amount of the cash bond,
permittee shall reimburse the City for such costs within thirty (30) days of the receipt of
invoice. Costs not timely paid shall accrue interest at the rate of I% per month.
(b) Permit fee. The non-refundable permit fee is $100.00 per linear mile or portion thereof
of seismic testing, which fee must be paid prior to the issuance of a permit.
Sec. 62-4. Insurance; indemnification.
(a) Insurance. Under this article, a permittee must furnish with his application and maintain
at all times during the life of the permit, commercial general liability insurance for bodily
injury and property damage, including explosion, collapse and underground hazard,
coverage in the minimum combined single limit of $2,000,000.00 aggregate and
$1,000,000 per occurrence as it pertains to its operations in the city's jurisdiction. Such
policy shall name the city, its officers, agents and employees as additional insureds and
shall be with an insurance carrier licensed and admitted to do business in the state and
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having an acceptable insurance rating approved by the chief. The certificate of insurance
shall provide that at least 30 days' prior written notice for the termination or modification
of the required insurance shall be given to the city.
(b) Indemnification. Any permit issued under this article shall not be effective unless it
contains the following:
Permittee agrees to and shall indemnify, hold harmless and defend, the
city, its officers, agents and employees, collectively referred to as "city,"
from and against any and all claims, losses, damages, causes of action,
suits and liability of every kind, including all expenses of litigation, court
costs, and attorneys' fees for injury to or death of any person, or for
damage to any property, arising out of or in connection with the
geophysical/seismic testing operations permitted herein, where such
injuries, deaths or damages are caused by the concurrent negligence of the
city and permittee and/or by the joint or sole negligence of the permittee.
It is the expressed intention of the parties hereto, both permittee and the
city, that the indemnity provided for in this paragraph is an indemnity by
permittee to indemnify, protect and defend the city from the consequences
of the city's own negligence, where that negligence and permittee's
negligence are concurring causes of the injury, death or damage; and/or
the permittee's joint and sole negligence. Furthermore, the indemnity
provided for in this paragraph shall have no application to any claim, loss,
damage, cause of action, suit and liability where the injury, death or
damage results from the sole negligence of the city unmixed with the fault
of any other person or entity.
In the event that any action or proceeding is brought against the city by
reason of any of the above, permittee further agrees and covenants to
defend the action or proceeding by legal counsel acceptable to the city.
This indemnity shall survive the revocation or expiration of the permit.
62-5. Operating regulations.
(a) Location. All geophysical operations shall be limited to the areas depicted on the map
included in the application. If, during the course of operations, any geophysical line or
lines must be relocated to maintain compliance with the terms and conditions set forth in
this article or in the permit or to ensure the safety of the general population, permittee
shall notify the chief within twenty-four (24) hours of such relocation.
(b) Claims. Permittee shall be responsible for and shall settle all reasonable and legitimate
claims, demands, and causes of action relating to property or persons arising out of, or as
a result of, permittee's operations and shall handle all such claims in an expedient
manner.
(c) Supervision. Permittee shall employ one or more permit supervisors, to be approved by
the City, who will be on the job during the entire period to mitigate any potential damage
to public or private property.
(d) Permission. Permittee shall obtain written permission from property owners before
entering or crossing their property.
(e) Notification.
(1) Written notification. Permittee shall notify each owner, resident and/or business
located within 1,000 feet of its planned operations twenty-four (24) to forty-eight
(48) hours prior to performing the actual work. Permittee shall also provide to
such owner, resident, and/or business, in writing, the name of permittee's
insurance carrier, the types and amount of insurance covering its proposed
operations, the name and telephone number of an individual to contact in case of a
claim for personal injury or property damage, and the procedure for obtaining a
copy of permittee's insurance certificate.
(2) Published notification. At least fifteen (15) days prior to performing the actual
work, permittee shall place newspaper advertisements in both the official
newspaper of the city and a second daily newspaper in general circulation in the
county of not less than three inches by four inches (3" x 4") explaining the work
to be performed, the location of the work, and a toll-free telephone number where
residents may call for more information.
(3) Utility notification. Whenever operations are to be conducted in the vicinity of
gas, electric, water, fire alarm, telephone, telegraph or stream utilities, the
permittee shall notify the appropriate representatives of such utilities at least 24
hours in advance of commencement of operations specifying the location and
intended time of such activity.
(4) Sign notification. Within 24 -hours of permit issuance, permittee shall place signs
on the property giving the public notice of the activities, including the name,
address and 24-hour phone number of the person conducting the activities. The
sign must be located within ten feet of the property line bordering a public
highway, street, or road and must be constructed of durable material, maintained
in good condition and have a surface area of not less than two square feet or more
than four square feet. Lettering must not be less than three inches in height and
block print, in a solid color that contrasts with the background. No permanent
markings shall be made on trees, roads or any property not belonging to the
operators, nor shall any signs be attached to tree in any fashion.
(5) Schedule of operations. Seventy-two (72) hours prior to beginning of any week
during which seismic testing activity will occur, permittee shall furnish to the
chief a schedule of that week's operations plans along with proof that all of the
required notices specified hereinabove have been given.
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(f) Protection.
(1) Limits. Permittee shall engineer all source locations (vibroseis drive levels) so
that no structure, water well, or underground toxic waste storage/disposal site
shall be subject to any peak particle velocity greater than 0.5 inches per second.
(2) Monitoring. Using industry standard equipment and techniques, permittee shall
monitor during operations all pertinent locations to ensure that no structure, water
well, or underground toxic waste storage/disposal site is subject to a peak particle
velocity greater than 0.5 inches per second. Permittee shall maintain all
documentation of monitoring activities for a period of at least three (3) years and
make said documentation available upon request for inspection by the city.
(3) Distances. Permittee shall obtain water well, underground toxic waste
storage/disposal sites, and water, sewer, oil, gas, and chemical pipeline location
maps and conduct all engineering calculations necessary to confirm that all
operations meet standards established by the governing engineering codes and
criteria. This information shall be used by the surveying teams and operations
manager to ensure compliance with the terms and conditions of the permit and
that safe operating distances are maintained.
(g) Hours of operation. Within the city's jurisdiction, testing may be conducted from 7:00
a.m. until 5:30 p.m. (or until dark, whichever first occurs), local time, on Monday
through Friday, from 8:00 a.m. until 5:30 p.m. (or until dark, whichever first occurs),
local time, on Saturday, and from noon until 5:30 p.m. (or until dark, whichever first
occurs), local time, on Sunday. Seismic survey and testing work is not allowed on city
holidays. These hours may be further restricted by the city to accommodate special
events.
(h) Restoration. Permittee must remove any mud or debris associated with its operations
from the city's rights-of-way daily. Additionally, permittee shall restore any lands or
rights-of-way used in its operations to original condition, free of damage, including ruts
or any injury to vegetation. Any costs incurred by the city for restoration may be
deducted from the cash bond required in section 62-3 or reimbursed to the City at full
costs by Permittee. If reimbursement is required, such costs will be paid within thirty
(30) days of receipt of invoice. Costs not timely paid shall accrue interest at the rate of
I% per month.
(i) Non-interference. Permittee shall ensure that its operations will not interfere with the
free and safe flow of traffic. The applicant will prepare for approval by the chief of
police, a traffic flow plan for the project. When operations are immediately adjacent to
the pavement, all equipment shall be parked and/or operated on one side of the roadway
only, unless demonstrated in the traffic flow plan that another method would be safer.
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(j) Maximum load. Permittee shall notify the City of any equipment to be operated on city
streets that will exceed the maximum load limit of 48,000 pounds and obtain special
required permitting.
(k) Public safety.
(1) Cables. Cables placed on the pavement within rights-of-way must be arranged so
they do not create a hazardous condition or rumble strip effect. All cables must
be securely anchored to the roadway with materials that will not damage and/or
puncture the pavement. Nails, spikes, and similar materials used for anchors shall
not be placed inside the pavement edge. Other than seismic recording hardware
and cables, Permittee may not store equipment in city rights -of way during non-
working hours.
(2) Delay of operations. Operations under any permit issued under this article shall
be barred when the city's director of public works determines that the ground
conditions are such that operations would cause extensive rutting in the rights-of-
way or easements. In addition, operations will be barred when ground conditions
would, in the reasonable opinion of the director of public works, cause the
tracking of mud, gravel, rock, or debris onto the roadway surface of any right-of-
way or other city improvements. In the event that mud, gravel, rock, or debris is
inadvertently tracked onto roadways in a way that creates a safety hazard or a
potential for damage to vehicles, the operator shall immediately cease operations
and clean the roadway of all mud, gravel, rock, or debris. The time for
completion of operations, as specified in subsection 62-2(d), shall be extended by
one day for each full day operations are barred under the provisions of this
subsection.
(3) Traffic. Each work crew shall be accompanied by a police officer while operating
on city streets and rights-of-way or otherwise impeding the flow of traffic (e.g.,
blocked lanes). Permittee shall reimburse the city the city's cost of such
employee, including salary and benefits, and equipment for a minimum of four
hours. Permittee shall pay such reimbursement within thirty (30) days of receipt
of invoice. Such reimbursement, if not timely paid shall accrue interest at the rate
of I% per month.
(4) Signs and barricades. Permittee shall furnish adequate signs, barricades, flares,
flagmen, and other traffic control measures in conformance with the latest version
of the state's manual on uniform traffic control devices, as necessary to protect
the traveling public.
(5) Pathways. At all times, permittee must maintain Americans with Disabilities Act
(ADA) compliant pathways and must resolve potential trip hazards from seismic
hardware, lines/cables and equipment.
(1) Vibroseis operations.
(1) Inspections. Prior to performing the actual work, permittee shall offer, in writing
to each owner, resident and/or business within 250 feet of any vibroseis operation,
and shall provide, if requested, pre- and post -damage inspections for all
structures, driveways and infrastructure including flow test and lab test for water
wells. Permittee shall maintain records of such inspections for a period of three
(3) years and shall make such records available, in whole or in part, upon request
by the city.
(2) Minimum requirements. All Vibroseis operations shall be conducted a minimum
distance of thirty-five feet (35') from any structure, water well, or underground
toxic waste storage/disposal site with a force drive and sweep frequency
producing no more than a 0.5 inches per second peak particle velocity.
(3) Vibroseis log. Permittee shall maintain, for a period of three (3) years, and make
available upon request to the City, the daily log of vibroseis tests showing date,
location, drive level, operator, and any other pertinent information related to the
vibroseis tests.
(m) Dynoseis operations. Dynoseis operations are prohibited in the city's jurisdiction.
Sec. 62-6. Variances.
When an applicant shows that a provision of the regulations in this article would cause
unnecessary hardship if strictly adhered to, and when, in the opinion of the city council, a
departure may be made without destroying the spirit of the regulations, the city council may, at
its sole discretion, grant a variance, which shall only apply to the variance and shall not be
construed to be a waiver or change of any provision of this chapter. There shall be no variance
to the prohibition of dynoseis operations in the city's jurisdiction.
Sec. 62-7. Penalty.
Any person violating any provision of this article or providing false information to the
chief shall upon conviction be punished by a fine as provided in section 1-14.
Section 2: Any person who fails to comply with any provision of this ordinance shall
be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding
TWO THOUSAND AND N0/100 DOLLARS ($2,000.00). Each act of violation and each day
upon which any such violation shall occur shall constitute a separate offense. In addition to the
penalty prescribed above, the city may pursue other remedies such as abatement of nuisances,
injunctive relief, administrative adjudication and revocation of licenses or permits.
Section 3: All ordinances or parts of ordinances inconsistent with the terms of this
ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of
such inconsistency and in all other respects this ordinance shall be cumulative of other
ordinances regulating and governing the subject matter covered by this ordinance.
Section 4: If any provision, section, exception, subsection, paragraph, sentence,
clause or phrase of this ordinance or the application of same to any person or the set of
circumstances, shall for any reason be held unconstitutional, void or invalid, such invalidity shall
not affect the validity of the remaining provisions of this ordinance or their application to other
persons or sets of circumstances and to this end all provisions of this ordinance are declared to be
severable.
Section 5: This ordinance shall take effect from and after ten (10) days from its
passage by the City Council. The City Clerk is hereby directed to give notice hereof by causing
the caption of this ordinance to be published in the official newspa7of the City of Baytown at
least twice within ten (10) days after passage of this ordinance.
INTRODUCED, READ, and PASSED by the affirmof the City Council of the
ati v to
City of Baytown, this the 10th day of April, 2014. 14
APPROVED AS TO FORM:
ALIO RAMIREZ, S ., ity Attorney
R:\Karen\Files\CityCouncil"+Ordinances\2014\Wpril 10\SeismicTestingFinal.docx
H
DONCARLOS, Mayor