[Ord. No. 2009-32, 2009]
A.
Title. This body of regulations shall be known as the "Pine
Lawn Right-of-Way Construction and Administration Ordinance".
B.
Findings And Purpose.
1.
In order to provide for the health, safety and well-being of its
citizens, as well as to ensure the structural integrity of its streets,
the City strives to keep its rights-of-way in a state of good repair
and free from unnecessary encumbrances.
2.
The City holds the rights-of-way within its geographical boundaries
as an asset in trust for its citizens. The City and other public entities
have invested monies from public funds to build and maintain the rights-of-way.
3.
The City possesses the authority to manage and control its rights-of-way
and to enact reasonable regulations in furtherance thereof.
4.
The proliferation of entities that have been licensed by the State
and the potential for additional entities having the need to occupy
rights-of-way necessitates the modernization of the City's regulations
used to control the placement, construction and maintenance of facilities
owned by existing and potential rights-of-way users.
5.
In response to the foregoing facts, the City hereby amends Chapter 515 of the Pine Lawn City Code relating to rights-of-way construction and administration. This Article imposes reasonable regulations on the placement and maintenance of facilities currently within its rights-of-way or to be placed therein at some future time.
6.
The regulations embodied herein have been made as broad as possible
to serve as standards of quality and to maintain the necessary uniformity
in the utilization of the public traffic corridors.
C.
Easements Not Impaired. Nothing in this Article is intended
to impair the legal obligation of contract, franchise or easement
previously granted by the City.
D.
Not In Lieu Of Franchise. Compliance with the permitting
requirements of this Article shall not excuse person from complying
with all other requirements of law, including holding a valid franchise
of the City.
E.
Area Of Jurisdiction. This Article shall apply to all land
within the corporate limits of the City as such corporate limits exist
or may exist in the future.
[Ord. No. 2009-32, 2009]
The following definitions apply in this Article. References
hereafter to "Sections" are, unless otherwise specified, references
to Sections in this Article. Defined terms remain defined terms whether
or not capitalized.
Any person requesting permission to obstruct or construct
in a right-of-way.
The process by which an applicant submits a request for permission
to obstruct or construct in the right-of-way.
That part of the public right-of-way that includes the area
from the property line to the parallel property line in width and
extending from the centerline of an intersecting street to the centerline
of the next intersecting street in length or five hundred (500) feet,
whichever is less.
The City of Pine Lawn, Missouri.
The direct and indirect costs borne by the City for the administration
of this Article.
To excavate, repair, rehabilitate, maintain and install sanitary
sewers, water mains, fire hydrants, valves, meters, manholes, service
lines and connections, gas mains, telephone and electrical conduit
and their miscellaneous service lines and connections, telecommunications
facilities, cables, wires, lines, wave guides, antennas and other
equipment or facilities, pedestals and service cabinets, poles, guy
wires, storm drains, manholes, inlets, catch basins, irrigation systems,
driveways, sidewalks, pavement extensions, curbs, walks, steps, building
canopies, balconies, overhead walkways and temporary detour pedestrian
walkways on, above or under part of the right-of-way, provided however,
that "construct" shall not mean installation, repair, rehabilitation
or maintenance of facilities that do not involve excavation of any
portion of the right-of-way.
A bond posted to ensure proper and complete construction
and/or repair of a permitted facility pursuant to a permit as determined
by the City. Construction standards for miscellaneous construction,
utility excavation and right-of-way and pavement restoration (construction
standards) means the compilation of provisions and requirements that
provide the technical specifications and details for the construction
of facilities in the right-of-way (see Appendix B to this Article).
Any person authorized by the City to carry out inspections
related to the provisions of this Article.
A condition that poses a clear and immediate danger to life
or health or of a significant loss of property or utility service.
"Emergency" also includes requests for service which the applicant
deems urgent and can be classified as small project types A and B.
Any work in the surface or subsurface of the public right-of-way
including, but not limited to, opening the right-of-way, installing,
servicing, repairing or modifying facilities in or under the surface
or subsurface and restoring the surface and subsurface of the public
right-of-way.
Any tangible thing located in any right-of-way, but shall
not include boulevard plantings or gardens planted or maintained in
the right-of-way between a person's property and the street edge of
pavement.
A professional engineer experienced in soils engineering
and materials testing.
A professional engineering company that provides soils engineering
and testing services, laboratory and field testing services, construction
material testing and possesses a certificate of authorization from
the State Board of Registration for professional engineers and land
surveyors.
When used in conjunction with right-of-way means over, above,
in, within, on or under a right-of-way.
Trees, shrubs and other plantings of materials that are or
may grow to a height of eighteen (18) inches or more and irrigation
systems (in unpaved areas) in the right-of-way.
Construction of water, sewer, gas, telephone, fiber optic,
electric power conduit, cable and duct, TV cable, jacking, boring,
pushing and tunneling, retrofitting existing facilities, storm drain
and other miscellaneous major facility construction projects that
involve more than one (1) continuous block or five hundred (500) linear
feet of right-of-way.
Construction of miscellaneous utility service lines, manhole
installation not associated with major project construction, main
line point repairs and installation, miscellaneous utility service
line repair, storm drain and inlet repairs, vaults, irrigation systems
and other miscellaneous construction and repair projects that involve
less than one (1) block or five hundred (500) linear feet of right-of-way.
A part of the City's Municipal Court system designed to enforce
laws and ordinances relating to the physical appearance of the City
and the health and safety of the public.
A citation issued for a violation of this Article. An M.O.T.
may require payment of a fine as defined by the municipal offense
ticket system (M.O.T) fine schedule, as may be amended from time to
time, appearance in environmental court and, if determined by a judge
of said court, jail or community service.
Written warning issued by the department for a violation
or possible violation of this Article.
To place any tangible object in a right-of-way so as to hinder
free and open passage over, under or through that or any part of the
right-of-way.
Money charged by the City to cover the costs as provided
in this Article.
Any person to whom a permit to construct or obstruct a right-of-way
has been granted by the City.
Any natural or corporate person, business association or
other business entity including, but not limited to, a partnership,
a sole proprietorship, a political subdivision, a public or private
agency of any kind, a utility, a successor or assign of any of the
foregoing or other legal entity which has or seeks to have facilities
located in any right-of-way.
The process by which a constructed or obstructed right-of-way
is restored as specified in the construction standards.
The surface and space above and below real property in which
the City has an interest in law or equity, whether held in fee or
other estate or interest including easements or as a trustee for the
public, including, but not limited to any public street, boulevard,
road, highway, freeway, lane, alley, court, sidewalk, parkway, river,
tunnel, viaduct, bridge, park or any other place, area or real property
owned by or under the control of the City.
The permit which must be obtained before a person may construct
in or obstruct in a right-of-way as required by the City.
Services provided by utilities.
The paved pedestrian walkway between the edge of the road
and the street right-of-way line.
The installation of equipment cabinets, junction boxes, terminal
boxes, splice boxes, regulator stations, meters and valves in paved
areas, utility poles, guy poles and appurtenances not associated with
a major or minor project.
The installation, repair and routine maintenance of miscellaneous
utility service drop lines, overhead wires and cables, traffic signal
poles, light poles, traffic signs, meters, valves and other miscellaneous
construction, repair, routine maintenance and inspection that requires
minimal excavation or right-of-way disruption.
An application made to construct or obstruct more of the
right-of-way than allowed in, or to extend, a permit that had already
been issued.
The use of directional boring, horizontal drilling and microtunneling
and other techniques in the construction of underground portions of
facilities which result in the least amount of disruption and damage
to right-of-way as possible.
All lines, cables, conduits, posts, tanks and other facilities
owned or operated by persons other than the City which are located
wholly or partially underneath right-of-way.
Any water, sewer, gas, drainage, sprinkler or culvert pipe
and any electric power, telecommunication, signal, communication or
cable television conduit, fiber, wire, cable or operator thereof.
[Ord. No. 2009-32, 2009]
A.
Administration. The City shall be the principal official
responsible for the administration of the right-of-way, right-of-way
permits and the ordinances related thereto. The City shall adopt and
may amend from time to time construction standards and other rules
reasonably required to carry out the purposes of this Code. Any requirement
not specifically covered by this Code or the construction standards
shall be determined by the City. The City may delegate any or all
of the duties hereunder.
B.
Appeal Procedure. The Building Commissioner may grant a
special exception to the requirements of this Article if a permittee
demonstrates with written evidence that:
1.
The exception will not create any threat to the public health, safety
or welfare.
2.
The permittee demonstrates that the increased economic burden and
the potential adverse impact on the permittee's construction schedule
resulting from the strict enforcement of the requirement actually
or effectively prohibits the ability of the permittee to provide utility
services in the City.
3.
The permittee demonstrates that the requirement unreasonably discriminates
against the permittee in favor of another person.
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Should person be aggrieved by the decision of the City, such
person may appeal by filing written notice with the department within
fifteen (15) days from the date of such decision. The department shall
send a copy of the appeal and all relevant documentation, within fifteen
(15) days, to the City Clerk's office to be considered by the Board
of Aldermen at a public hearing.
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[Ord. No. 2009-32, 2009]
A.
Permit Requirement.
2.
Right-of-way permit.
a.
A right-of-way permit is a permit which allows the holder to construct,
obstruct or landscape in that part of the right-of-way described in
such permit and to hinder free and open passage over the specified
portion of the right-of-way by placing facilities described therein,
to the extent and for the duration specified therein.
b.
A permit is valid only for the dates and the area(s) of right-of-way
specified in the permit. No person may construct in or obstruct the
right-of-way beyond the date or dates specified in the permit unless
such person:
3.
Emergencies. When the work must commence immediately
because of an emergency, the permittee shall comply with the provisions
of this Article.
5.
Permit authorizing routine work. Applicants may
be allowed, if determined by the department, to obtain in advance,
an annual, quarterly or semi-annual permit for minor projects outside
roadway limits and some small projects that involve minimal excavation.
Permit fees shall be calculated as an estimate of similar work
conducted over the past twelve (12) months.
B.
Permit Applications. Application for a permit is made to
the City.
C.
Issuance Of Permit — Conditions.
1.
If the City determines that the applicant has satisfied the requirements
of this Article, the City shall issue a permit or issue notification
and reason for denial.
2.
The City may impose reasonable conditions upon the issuance of the
permit and the performance of the applicant thereunder in order to
protect the public health, safety and welfare, to insure the structural
integrity of the right-of-way, to protect the property and safety
of other users of the right-of-way and to minimize the disruption
and inconvenience to the traveling public, including notification
to property owners.
D.
Permit Fees.
1.
Permit fee. Permit fees shall be established by
the Board of Aldermen upon recommendation of the City. Said fees shall
be in an amount sufficient to recover the following costs:
a.
The City cost, including administration, inspection and enforcement;
and
b.
The cost for obstructing the right-of-way, including lost parking
meter revenue, costs associated with traffic management that results
from street obstruction, lost tax revenues resulting from streets
blocked and as an encouragement to minimize costs and to encourage
timely, efficient use of the right-of-way.
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The current schedule of permit fees is set forth in Appendix
A to this Article.
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2.
Payment of permit fees. No permit shall be issued
without payment of such fees unless the City authorized payment to
be made thirty (30) days following billing. All changes in fees shall
be approved by the Board of Aldermen.
3.
Non-refundable fees. All permit fees are non-refundable.
4.
Joint applications. Applicants are encouraged to
make joint application for permits to construct or obstruct the right-of-way
at the same place and time.
5.
Notification. The City shall provide advance notification
to utility companies of scheduled resurfacing of streets and roads,
so that utility companies will have an opportunity to coordinate planned
utility improvements and work with the City's resurfacing schedules.
This advance notification shall be provided not less than sixty (60)
days prior to the commencement of resurfacing.
6.
Additional fees. When an applicant desires to conduct
permitted activity within any roadway that has been constructed, reconstructed,
resurfaced or overlayed within the three (3) years immediately preceding
the issuance of a right-of-way permit, then the applicant shall pay,
in addition to all other permit fees, an additional fee as follows:
a.
The additional fee for work within such roadway within the first
(1st) year after resurfacing or construction shall be two thousand
dollars ($2,000.00).
b.
The additional fee for work within any such roadway in the second
(2nd) year after resurfacing or construction shall be one thousand
two hundred dollars ($1,200.00).
c.
The additional fee for work within any such roadway in the third
(3rd) year after resurfacing or construction shall be eight hundred
dollars ($800.00).
7.
The additional fees set in this Subsection shall apply to all roads
and streets that are constructed, reconstructed, resurfaced or overlayed
within the City of Pine Lawn.
8.
The additional fees set in this Subsection shall be in addition to,
and not in lieu of, other fees or licenses required.
[Ord. No. 2009-32, 2009]
A.
Compliance With Construction Standards. All construction
or maintenance of facilities shall be in accordance with this Code,
the construction standards and such other conditions imposed on the
permit by the City.
B.
Location Of Facilities. The City shall have the power to
prohibit or limit the placement of new or additional facilities within
the right-of-way if there is insufficient space to accommodate all
of the requests or permittees to occupy and use the right-of-way.
In making such decisions, the City shall strive to the extent possible
to accommodate all existing and potential users of the right-of-way,
but shall be guided primarily by considerations of the public interest,
the public's needs for the particular utility service, the condition
of the right-of-way, the protection of existing facilities in the
right-of-way and future City plans for public improvements and development
projects which have been determined to be in the public interest.
C.
Least Disruptive Technology. Applicants are encouraged to
perform construction and maintenance of facilities in a manner resulting
in the least amount of damage and disruption of the right-of-way.
Applicants will be required to use trenchless technology for major
and minor construction projects, within roadway limits, in arterial
and other high volume streets and in streets constructed or resurfaced
within the last three (3) years, unless otherwise approved by the
City and such approval shall not be unreasonably withheld. The City
may require trenchless technology in other locations, where extreme
circumstances prevent or make open cut methods impractical. Applicants
may use either the open cut method or trenchless technology for major
and minor projects outside roadway limits.
D.
Right-Of-Way Restoration.
1.
The work to be done under the permit, and the restoration of the
right-of-way as required herein, must be completed within the dates
specified in the permit. All temporary patching of pavement must be
permanently fixed in compliance with the City Engineering Department
construction standards within the dates specified in the permit. In
addition to its own work, the permittee must restore the general area
of the work, including all disturbed landscaping materials and the
permitted areas, including paving and its foundation, per the City's
construction standards.
2.
The permittee shall perform the work according to the standards and
with the materials specified by the City including, but not limited
to, the construction standards.
3.
Guarantee of work outside roadway limits. The permittee,
by acceptance of the permit, expressly warrants and guarantees complete
performance of the work in compliance with the rights-of-way construction
and administration ordinance and the City's construction standards
and warrants and guarantees all work done for a period of twenty-four
(24) months after the date of completion. During this twenty-four
(24) month period, the permittee shall, upon notification from the
department, make all necessary repairs and correct all restoration
work to the extent necessary using the method required by the department.
Said work shall be completed within the time specified by the City.
4.
Guarantee of work within roadway limits. The permittee,
by acceptance of the permit, expressly warrants and guarantees complete
performance of the work in compliance with the rights-of-way construction
and administration ordinance and the City's construction standards
and warrants and guarantees all work done from date of completion
until the date that the City resurfaces the roadway. During this period
of time, the permittee shall, upon notification from the department,
make all necessary repairs and correct all restoration work to the
extent necessary using the method required by the department. Said
work shall be completed within the time specified by the City.
5.
Security. Each permittee, before being issued a
permit, shall provide the City, at the permittee's expense, security
for the warranty guarantee in the form of cash, an irrevocable letter
of credit or a performance bond. The security shall be in an amount
equal to one hundred percent (100%) of the City's estimate of the
cost of restoration. The cost of restoration shall include, without
limitation, the removal of defective material, recompaction of subgrade
and base material and construction or repair of surface improvements.
a.
The City may waive the security requirements for any owner of a single-family
residence desiring to repair their driveway or sidewalk, provided
the owner performs the work personally and upon satisfactory evidence
to the City that the owner is competent to perform the work.
b.
Performance bond provided as security shall be executed by the permittee
as principal and by at least one (1) surety upon whom service of process
may be had in this State and shall be deposited with the City. The
bond shall be in an amount equal to one hundred percent (100%) of
the City's estimate of the cost of restoration, as defined above,
but in no case shall the amount be less than one thousand dollars
($1,000.00).
c.
The security shall remain in effect throughout the entire time that
the permittee's warranty guarantee is in effect for work covered by
the rights-of-way construction and administration ordinance.
d.
Exceptions to security requirement. In lieu of the
security requirement described in this Section, persons holding a
franchise with the City or any governmental entity may provide the
City with an annual letter signed by an appropriate authorized official
guaranteeing:
(1)
Complete performance of all work covered by the rights-of-way
construction and administration ordinance; and
(2)
Correction and repair of any defect in the work for the applicable
period of time that the permittee's warranty guarantee is in effect.
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If the City determines that any permittee has failed to promptly
and adequately perform under the conditions of this Subsection, then
the permittee shall be required to post security meeting the requirements
of this Section for all future work covered by the rights-of-way construction
and administration ordinance.
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e.
Installation requirements. The excavation, backfilling,
restoration and all other work performed in the right-of-way shall
be done in conformance with specifications set forth in the construction
standards.
f.
Inspection. Except for routine work, when the work
under any permit for major and minor projects hereunder is completed,
the permittee shall notify the City.
(1)
Permittee shall make the work site available to the City or
an authorized representative and to all others as authorized by law
for inspection at all reasonable times during the execution and upon
completion of the work.
(2)
At the time of inspection, the City or an authorized representative
may order the immediate cessation of any work which poses a serious
threat to the life, health, safety or well-being of the public.
(3)
The City may issue a notice of violation to the permittee for
work which does not conform to the applicable standards, conditions
or codes. The order shall state that failure to correct the violation
will be cause for issuance of a municipal offense ticket and/or stop
work order. Within the time frame indicated on the notice after issuance
of the order, the applicant shall present proof to the City that the
violation has been corrected. If such proof has not been presented
within the required time, the City may issue a stop work order and/or
issue municipal offense tickets.
g.
Other obligations. Obtaining a right-of-way permit
does not relieve permittee of its duty to obtain all other necessary
permits, licenses and authority and to pay all fees required by other
City, County, State or Federal rules, laws or regulations.
(1)
A permittee shall comply with all requirements of local, State
and Federal laws, including a franchise duly adopted by the Board
of Aldermen. Contact shall be made to the one (1) call excavation
notice system, Missouri 1-800-DIG RITE or such other number which
may be applicable.
(2)
A permittee shall perform all work in conformance with all applicable
codes and established rules and regulations and is responsible for
all work done in the right-of-way pursuant to its permit, regardless
of who performs the work.
(3)
Except in the case of an emergency and with the approval of
the City, no right-of-way obstruction or excavation may be performed
when seasonally prohibited or when conditions are unreasonable for
such work.
(4)
A permittee shall not so obstruct a right-of-way that the natural
free and clear passage of water through the gutters or other waterways
shall be interfered with.
(5)
Private vehicles not owned by or under contract to permittee
may not be parked within or adjacent to a permit area.
h.
All persons owning and operating underground utilities, pipes, conduits
or underground mains and services within the City shall adjust all
manhole castings so that they are level to the finished surface of
paving and shall keep and maintain all manhole castings level to the
finished surface of paving at all times.
[Ord. No. 2009-32, 2009]
A.
Denial Of Permit.
1.
Mandatory denial. Except in the case of an emergency,
no right-of-way permit will be granted:
a.
To any person who has failed to comply with the requirements of this
Article;
b.
To any person who is delinquent in paying a debt owed to the City;
and
c.
If, in the discretion of the City, the issuance of a permit for the
particular date and/or time would cause a conflict or interfere with
an exhibition, celebration, festival or any other event. The City
in exercising this discretion, shall be guided by the safety and convenience
of ordinary travel of the public over the right-of-way and by considerations
relating to the public health, safety and welfare.
2.
Permissive denial. The City may deny a permit in
order to protect the public health, safety and welfare, to prevent
interference with the safety and convenience of ordinary travel over
the right-of-way or when necessary to protect the right-of-way and
its users. The City may consider one (1) or more of the following
factors:
a.
The extent to which right-of-way space where the permit is sought
is available;
b.
The competing demands for the particular space in the right-of-way;
c.
The availability of other locations in the right-of-way or in other
right-of-way for the facilities of the particular company;
d.
The applicability of ordinances or other regulations of the right-of-way
that affect location of facilities in the right-of-way;
e.
The degree of compliance of the applicant with the terms and conditions
of its franchise, this Article and other applicable ordinances and
regulations; the degree of disruption to surrounding neighborhoods
and businesses that will result from the use of that part of the right-of-way;
and
f.
The condition and age of the right-of-way and whether and when it
is scheduled for total or partial construction; and the balancing
of the costs of disruption to the public and damage to the right-of-way
against the benefits to that part of the public served by the expansion
into additional parts of the right-of-way.
B.
Work Done Without A Permit.
1.
Emergency situations. Each permittee shall notify
the City (by telephone or in person) of any event regarding its facilities
which it considers to be an emergency by the next business day. The
applicant may proceed to take whatever actions are necessary in order
to respond to the emergency. Within two (2) business days after the
occurrence of the emergency, the applicant shall apply for the necessary
permits, pay the fees associated therewith and fulfill the rest of
the requirements necessary to bring itself into compliance with this
Article for the actions it took in response to the emergency.
2.
In the event that the City becomes aware of an emergency regarding an applicant's facilities, the department shall attempt to contact the local representative of each applicant affected, if known or potentially affected, by the emergency, who must comply with Subsection (B)(1) of this Section. In any event, the department may take whatever action deemed necessary in order to respond to the emergency.
3.
Non-emergency situations. Except in the case of
an emergency, any person who obstructs or excavates a right-of-way
without a permit must:
a.
Subsequently obtain a permit,
b.
Pay three (3) times the normal fee for said permit,
c.
Pay three (3) times all the other fees required by the Code,
d.
Deposit with the department any amount necessary to correct damage
to the right-of-way,
e.
Provide security to the City as provided in the above Section, and
f.
Comply with all of the requirements of this Article. In addition
thereto, such person shall also be subject to the issuance of a notice
of violation and/or a municipal offense ticket.
C.
Enforcement.
1.
Permittees hold permits issued pursuant to this Article as a privilege
and not as a right.
2.
If the City determines that the permittee has violated a material
term or condition of any Statute, ordinance, rule, regulation or condition
of the permit, the City shall issue a notice of violation to the permittee
to remedy such violation. The demand shall state that continued violations
may be cause for the issuance of a stop work order and issuance of
a municipal offense ticket. Further, a substantial breach, as stated
above, will allow the City, at their discretion, to place additional
or revised conditions on the permit. A material violation by permittee
shall include, but shall not be limited to, the following:
a.
The violation of any material provision of the permit;
b.
An evasion or attempt to evade material provision of the right-of-way
permit or the perpetration or attempt to perpetrate fraud or deceit
upon the City or its citizens;
c.
Any material misrepresentation of fact in the application for a permit;
d.
The failure to maintain the required bonds and/or insurance;
e.
The failure to complete the work in a timely manner; or
f.
The failure to correct a condition indicated on an order issued by
the Building Commissioner.
3.
Within forty-eight (48) hours of receiving a notice of violation,
permittee shall contact the City with a plan, acceptable to the City,
for its correction. Permittee's failure to contact the City or the
permittee's failure to submit an acceptable plan or permittee's failure
to reasonably implement the approved plan shall be cause for immediate
issuance of a stop work order and issuance of a municipal offense
ticket.
4.
From time to time, the City may establish a list of conditions of
the permit that will automatically warrant the issuance of a municipal
offense ticket to the permittee.
[Ord. No. 2009-32, 2009]
A.
City Does Not Accept Liability. By reason of the grant of
a right-of-way permit, the City does not assume liability:
B.
Applicant Or Permittee Indemnifies City. By accepting a
permit, a permittee is required to indemnify and hold the City whole
and harmless from all costs, liabilities and claims for damages of
any kind arising out of the construction, presence, installation,
maintenance, repair or operation of its facilities or out of activity
undertaken in or near a right-of-way, whether any act or omission
complained of is authorized, allowed or prohibited by a right-of-way
permit. It further agrees that it will not bring, nor cause to be
brought, action, suit or other proceeding claiming damages or seeking
other relief against the City for claim nor for any award arising
out of the presence, installation, maintenance or operation of its
facilities or any activity undertaken in or near a right-of-way, whether
the act or omission complained of is authorized, allowed or prohibited
by a permit. The foregoing does not indemnify the City for its own
negligence. This Section is not, as to third (3rd) parties, a waiver
of defense or immunity otherwise available to the applicant or to
the City; and the applicant, in defending action on behalf of the
City, shall be entitled to assert in any action every defense or immunity
that the City could assert in its own behalf.
C.
Exceptions. The provisions of Subsection (B) of this Section shall not apply to a permittee that has, as of the effective date of this Article, a valid franchise duly granted by the City and said franchise requires the permittee to hold harmless the City for damages occasioned by the presence, operations or maintenance of the permittee's facilities. This exemption shall not apply where said franchise does not afford the City at least the level of protection stated in Subsection (B) of this Section, unless the permittee agrees to provide the same or greater level of protection to the City.
[Ord. No. 2009-32, 2009]
Penalties. Any person who violates of the provisions of this Article shall, upon conviction, be punished in accordance with Section 100.220 of this Code.
[Ord. No. 2009-32, 2009]
A.
Non-Exclusive Remedy. The remedies provided in this Article
are not exclusive or in lieu of other rights and remedies that the
City may have at law or in equity. The City is hereby authorized to
seek legal and equitable relief for actual or threatened injury to
the public right-of-way, including damages to the right-of-way, whether
caused by a violation of any of the provisions of this Chapter or
other provisions of this Article.
B.
Severability. If any Section, Subsection, sentence, clause,
phrase or portion of this Chapter is for reason held invalid or unconstitutional
by any court or administrative agency of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision
and such holding shall not affect the validity of the remaining portions
thereof. If a regulatory body or a court of competent jurisdiction
should determine by a final, non-appealable order that any permit
or right or portions of this Chapter is illegal or unenforceable,
then any such permit or right granted or deemed to exist hereunder
shall be considered as a permit with a mutual right in either party
to terminate without cause upon giving sixty (60) days' written notice
to the other. The requirements and conditions of such a revocable
permit shall be the same requirements and conditions as set forth
in the permit or right respectively, except for conditions relating
to the term of the permit and the right of termination. If a permit
or right shall be considered a revocable permit as provided herein,
the permittee must acknowledge the authority of the Board of Aldermen
to issue such revocable permit and the power to revoke it.
C.
Reservation Of Regulatory And Police Powers. The City, by
the granting of a right-of-way permit, does not surrender or to any
extent lose, waive, impair or lessen the lawful powers and rights,
which it has now or may be hereafter vested in the City under the
Constitution and Statutes of the State to regulate the use of the
right-of-way by the permittee or to charge reasonable compensation
for such use; and the permittee by its acceptance of a right-of-way
permit must agree that all lawful powers and rights, regulatory power
or police power or otherwise as are or the same may be from time to
time vested in or reserved to the City shall be in full force and
effect and subject to the exercise thereof by the City at any time.
A permittee or applicant is deemed to acknowledge that its rights
are subject to the regulatory and police powers of the City to adopt
and enforce general ordinances necessary to the safety and welfare
of the public and is deemed to agree to comply with all applicable
general laws and ordinances enacted by the City pursuant to such powers.
D.
Any
conflict between the provisions of a right-of-way permit and other
present or future lawful exercise of the City's regulatory or police
powers shall be resolved in favor of the latter.
