[CC 1999 §23-80; Ord. No. 99-2 §1, 1-11-1999]
To the extent permitted by law, this Chapter shall apply to all persons desiring to construct, operate or maintain facilities in, along, across, under or over public rights-of way within the City.
[CC 1999 §23-81; Ord. No. 99-2 §1, 1-11-1999]
Definitions And Usage — General. For the purposes of this Chapter, the following terms, phrases, words and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense and vice versa, words in the plural number include the singular number and vice versa, and the masculine gender includes the feminine gender and vice versa. The words "shall" and "will" are mandatory and "may" is permissive. Unless otherwise expressly stated or clearly contrary to the context, terms, phrases, words and abbreviations not defined herein shall be given the meaning set forth in the City Code and, if not defined therein, their common and ordinary meaning. For further convenience, the first (1st) letter of terms, phrases, words and abbreviations defined in this Chapter have been capitalized, but an inadvertent failure to capitalize such letter shall not affect its meaning, nor shall the inadvertent capitalization of the first (1st) letter of a term, phrase, word or abbreviation not defined herein affect the meaning thereof.
- The specific Person applying for and receiving a permit under this Chapter.
- That form designed by the City Engineer which an Applicant must use to obtain a Permit to conduct Facilities Work across, over or under the City's Rights-of-Way.
- The City of Chillicothe, Missouri.
- CITY ADMINISTRATOR
- The City Administrator or his/her designee.
- CITY ENGINEER
- The City Engineer or his/her designee.
- Any act by which earth, asphalt, concrete, sand, gravel, rock or any other material in or on the ground is cut into, dug, uncovered, removed or otherwise displaced by means of any tools, equipment or explosives, except that any de minimis displacement or movement of ground caused by pedestrian or vehicular traffic or any other activity which does not disturb or displace surface conditions of the earth, asphalt, concrete, sand, gravel, rock or any other material in or on the ground shall not be deemed excavation.
- Any conduit, duct, line, pipe, wire, hose, cable, culvert, tube, pole, receiver, transmitter, satellite dish, micro cell, pico cell, repeater, amplifier or other device, material, apparatus or medium useable (whether actually used for such purpose or not) for the transmission or distribution of any service or commodity installed below or above ground within the Public Rights-of-Way of the City, whether used privately or made available to the public.
- FACILITIES WORK
- The installation of new Facilities or any change, replacement, relocation, removal, alteration or repair of existing Facilities that requires excavation within the Public Rights-of-Way, except for the occasional replacement of utility poles and related equipment at the existing general location that does not involve either a street or sidewalk cut.
- A Permit granted by the City Engineer to do Facilities Work within the Public Rights-of-Way.
- An individual, partnership, association, joint stock company, trust, organization, limited liability company, corporation or other entity or any lawful successor thereto or transferee thereof, but such term does not include the City.
- PUBLIC RIGHTS-OF-WAY
- The surface, the air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway or other similar property in which the City now or hereafter holds any property interest, which was dedicated as rights-of-way. No reference herein, or in any Permit, to "Public Rights-of-Way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes. Public Rights-of-Way does not include the airwaves above the rights-of-way with regard to cellular or other non-wire telecommunications or broadcast services or easements obtained by utilities or private easements in platted subdivisions or tracts.
[CC 1999 §23-81; Ord. No. 99-2 §1, 1-11-1999; Ord. No. 2016-65 § 1, 11-14-2016]
Permit Required. Any person desiring to conduct facilities work within public rights-of-way must first apply for and obtain a permit in addition to any other building permit, license, easement or authorization required by law. In the event of an emergency or when reasonably necessary to excavate after normal working hours at the City Hall, a person shall advise the City Police Department of the necessity of his/her or its excavating in the public streets, highways, roads, alleys or other thoroughfare in the City and shall also advise of the location of said proposed excavation and the extent thereof. The excavation may then be undertaken; provided, however, that a permit, in the form provided by this Section, ratifying said excavation shall be secured from the Codes and Zoning Department within twenty-four (24) hours of advising the City Police Department. Nothing contained herein shall absolve the excavator from any liability in civil damages to the City.
All applications for permits shall be submitted to the Codes and Zoning Department or its designee. The Codes and Zoning Department shall design and make available standard forms for such applications, requiring such information as the Codes and Zoning Department determines to be necessary, consistent with the provisions of this Chapter, to accomplish the purposes of this Chapter.
Each such application shall be accompanied by payment of fees as designated in this Chapter.
The Codes and Zoning Department or its designee shall review each such application for a permit and, upon determining the applicant as the authority to perform the desired facilities work and that the applicant has submitted all necessary information and has paid the appropriate fee, shall issue the permit, except as provided in Subsection (A)(4). In order to avoid excessive processing and accounting costs to either the City or the applicant, the Codes and Zoning Department shall have authority to establish procedures for bulk processing of applications and periodic payment of fees.
It is the City's intention that disruption of public rights-of-way should be minimized. Upon receipt of an application for a permit, the Codes and Zoning Department or its designee shall do the following:
Evaluate the degree of excavation necessary to perform the facilities work in the right-of-way and determine whether the excavation will be more than minor in nature. If the applicant can show to the Codes and Zoning Department's reasonable satisfaction that the facilities work involves any of the following:
No significant disruption or damage to the public rights-of-way; or
For circumstances where the Codes and Zoning Department or its designee determines that there will be significant excavation of the public rights-of-way and no exemption under Subsection (A)(4)(a) or any other provision of this Section applies, the Codes and Zoning Department or its designee may, consistent with the time requirements set forth in Section 515.030 and in the permit, direct permit holders performing the facilities work in the same area to consult on how they may schedule and coordinate their work to accomplish the goal of this Section.
Each permit shall include:
Projected commencement and termination dates or, if such dates are unknown at the time the permit is issued, a provision requiring the permit holder to provide the Codes and Zoning Department with reasonable advance notice of such dates once they are determined.
Length of public right-of-way.
Number of road crossings.
Information regarding scheduling and coordination of facilities work if applicable.
Location of facilities.
A public right-of-way user desiring to perform excavation in the public right-of-way shall submit three (3) sets of construction plans and specifications bearing the stamp of a professional engineer duly licensed and registered in the State of Missouri and shall include the following information:
The location of all visible topographic features affected by the project within the public right-of-way;
Complete plan and profile drawings indicating the horizontal and vertical location of all components of the proposed project, the design details of such proposed project, and other related information, including, but not limited to, type and size of the proposed tower or structure;
Complete plan and profile drawings detailing the restoration of the public right-of-way and the design details of such restoration;
A safety plan indicating the methods used to protect the general public from injury, including, but not limited to, the proposed use of barricades, signs, fencing, and other barriers. Such safety plan shall be in compliance with all applicable law, including, but not limited to, the rules, regulations and standards adopted pursuant to the Williams-Steiger Occupational Safety and Health Act of 1970 and applicable amendments ("OSHA").
An application for a public right-of-way permit for the purpose of constructing new or installing new facilities or structures, or extending existing facilities or structures, shall contain the following in addition to the requirements of Subsection (A)(6):
A detailed description of all services proposed to be provided in the City by the applicant;
The area proposed to be served within the City by the applicant;
The manner in which services are proposed to be rendered to customers in the City;
Evidence of the applicant's financial ability to construct and operate the proposed structure or facility in the public right-of-way and to pay all applicable fees, taxes, and other charges allowed by Code and law;
A sworn statement executed by a duly authorized representative of the applicant that the applicant is in compliance with the law in other jurisdictions where the applicant operates;
Evidence that the applicant has obtained and secured all certificates and other authorizations required by law in order to construct and operate the proposed structure or facility in the manner proposed by the applicant;
Evidence of the technical ability of the applicant to construct, maintain and operate the proposed facility or structure in compliance with law.
An application to construct a communications tower shall be reviewed and processed within one hundred twenty (120) calendar days.
An application for a public right-of-way permit for the purpose of repairing or maintaining existing facilities or structures that result in no material change to the facilities or structures shall submit three (3) sets of construction plans with the application that, if required by the Codes and Zoning Department or its designee, bears the stamp of a professional engineer duly licensed and registered in the State of Missouri, including the following information for review and approval by the Codes and Zoning Department or its designee:
Standard details, including the type and nature of the work;
A safety plan indicating the methods used to protect the general public from injury, including, but not limited to, the proposed use of barricades, signs, fencing, and other barriers. Such safety plan shall be in compliance with all applicable law, including, but not limited to, the rules, regulations and standards adopted pursuant to OSHA;
An erosion control plan as required by applicable provisions of the Code;
Traffic control plan in compliance with applicable provisions of the Code; and
Drawings detailing the restoration of the public right-of-way, including proposed pavement and public right-of-way restoration all in compliance of this Article;
A landscape plan; and
A schedule for excavation work and restoration work, including a proposed start and end date.
Permit Denial. The Codes and Zoning Department may deny a permit application for the following reasons if deemed in the public's interest:
Undisputed past due fees from prior permits;
Failure to return the right-of-way to its previous condition under previous permits;
Undue disruption to existing utilities, transportation or City use;
Area is environmentally sensitive as defined by State or Federal statute;
A reasonable, competitively neutral, and nondiscriminatory justification for requiring an alternative method or location will result in neither additional installation nor construction expense up to ten percent (10%) to the public right-of-way user nor a declination of service quality;
The Codes and Zoning Department or its designee determines the denial is necessary to protect the public health, safety or welfare. In determining that denial is necessary to protect the public health, safety or welfare, the Codes and Zoning Department or its designee may consider one or more of the following factors:
Extent to which the public right-of-way space where the public right-of-way permit is sought is available, including the consideration of competing demands for the particular space in the public right-of-way, or other general conditions of the public right-of-way;
Applicability of any ordinance, Code provision, zoning regulation, or other regulation that affects the location of the facilities or structures in the public right-of-way;
Degree of disruption to surrounding communities and businesses that will result from the use in that part of the public right-of-way.
Failure to provide required information; or
Applicant is in violation of the provisions of this Chapter.
The reasons for the permit denial must be made available to the applicant at the time the permit is denied.
Appeal. A public right-of-way user that has been denied a public right-of-way permit, has had its public right-of-way permit revoked, believes that the fees imposed upon it by the City do not conform to the requirements of Missouri statute, or asserts any other issues related to the use of the public right-of-way shall be entitled to have its disputes reviewed.
The applicant may appeal any final decision of the Codes and Zoning Department or its designee to the City Administrator, which appeal shall be acted on by the City Administrator within five (5) days; and if denied by the City Administrator, the applicant may then appeal any final decision to the City Council, who shall consider the appeal at its next regular meeting, provided that the appeal is received at least ten (10) days prior to such meeting. A decision affirming the denial, revocation, fee imposition or dispute resolution shall be in writing. Section 67.1838, RSMo. shall govern further proceedings.
Fees. The applicant must pay the following:
Any fees collected pursuant to this Section will be used only to reimburse the City for its actual incurred cost of managing the rights-of-way and will not be used to generate revenue to the City above such costs. The City may not require or accept in-kind services in lieu of any fee.
Permit Fee. A fee charged to recover the City's actual costs for an applicant's facilities or structure work in the right-of-way, including the costs of processing permits, inspections and administration of this Chapter, excluding legal fees relating to the interpretation or enforcement of this Chapter, including all such appeals. The permit fee is seventy dollars ($70.00).
Applicant Subject To Other Laws — Police Power.
An applicant shall at all times be subject to all lawful exercise of the police powers of the City, including, but not limited to, all powers regarding zoning, supervision of construction and control of public rights-of-way.
No action or omission of the City shall operate as a future waiver of any rights of the City under this Chapter.
The City shall have the maximum plenary authority to regulation of applications, permits, construction, and facilities work as may now or hereafter be lawfully permissible. Except where rights are expressly granted or waived by a permit, they are reserved, whether or not expressly enumerated. This Chapter may be amended from time to time, and in no event shall this Chapter be considered a contract between the City and an applicant such that the City would be prohibited from amending any provision hereof.
[CC 1999 §23-82; Ord. No. 99-2 §1, 1-11-1999]
Oversight Of Facilities Work.
An Applicant shall construct, operate and maintain Facilities subject to the supervision of all of the authorities of the City who have jurisdiction in such matters and in strict compliance with this Chapter, all applicable zoning and construction permitting ordinances, departmental rules and regulations.
Facilities Work shall be subject to periodic inspection by the City.
The City Engineer shall have full access to all portions of Facilities Work and may issue stop work orders and corrective orders to prevent unauthorized work. Such corrective or stop work orders shall state that work not authorized by the Permit is being carried out, summarize the unauthorized work and provide a period of not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be ceased to protect the public safety and may be delivered personally or by certified mail to the address listed on the Application for Permit or to the person in charge of the construction site at the time of delivery. Such orders may be enforced by equitable action in the Circuit Court of Livingston County, Missouri, and if the City prevails in such case, the Person involved in the Facilities Work shall be liable for all costs and expenses incurred by the City, including reasonable attorney's fees, in enforcing such orders, in addition to any and all penalties established in this Chapter.
Any Person who engages in Facilities Work in the Public Rights-of-Way and who has not received a valid Permit from the City shall be subject to all requirements of this Chapter. Except in those instances where Facilities Work must be performed on an emergency basis, the City may, in its discretion, at any time until a Permit is secured, order the Facilities Work ceased and do any of the following: require such Person to apply for a Permit within thirty (30) days of receipt of a written notice from the City that a Permit is required; require such Person to remove its property and restore the affected area to a condition satisfactory to the City or take any other action it is entitled to take under applicable law, including, but not limited to, filing for and seeking damages for trespass, and if the City prevails in such case, the City shall in addition recover all its costs and expense including reasonable attorney's fees.
The construction, operation, maintenance and repair of Facilities shall be in accordance with applicable health, safety and construction codes.
All Facilities shall be installed and located with due regard for minimizing interference with the public and with other utility users of the rights-of-way, including the City.
An Applicant shall not place Facilities where they will damage or interfere with the use or operation of previously installed Facilities or obstruct or hinder the various utilities serving the residents and businesses in the City of their use of any Public Rights-of-Way.
Any and all Public Rights-of-Way disturbed or damaged during the Facilities Work shall be promptly repaired or replaced by the Applicant to its previous condition.
Any contractor or subcontractor used for Facilities Work must be properly licensed under laws of the State and all applicable local ordinances and each contractor or subcontractor shall have the same obligations with respect to its work as an applicant would have hereunder and applicable laws if the work were performed by the Applicant. The Applicant shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with its Permits and applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors and shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor.
[CC 1999 §23-83; Ord. No. 99-2 §1, 1-11-1999]
Prior to any Facilities Work in the Public Rights-of-Way, an Applicant shall establish in the City's favor a performance bond in an amount determined by non-discriminatory regulations promulgated by the City Engineer as necessary to ensure the Applicant's faithful performance of the Facilities Work. Differences in bond requirements, including provisions for self-insurance or provisions for a single continuing bond where Facilities Work is conducted by the same Applicant under numerous permits, may be established by regulation based on the extent or nature of the Facilities Work, the past performance of the applicant and not based on the characteristics of the applicant. In lieu of a performance bond, applicant may provide an acceptable substitute with the approval of the City Engineer.
In the event an Applicant fails to complete the Facilities Work in a safe, timely and competent manner, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, plus a reasonable allowance for attorneys fees, up to the full amount of the bond.
After ninety (90) days of completion of the Facilities Work to the satisfaction of the City Engineer, the City Engineer shall eliminate the bond (or acceptable substitute) or reduce its amount after a time appropriate to determine whether the work performed was satisfactory, which time shall be established by the City Engineer considering the nature of the work performed.
A performance bond shall be issued by a surety acceptable to the City and shall contain the following endorsement:
"This bond may not be canceled or allowed to lapse until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."
Applicant shall, at its sole cost and expense, indemnify, hold harmless and defend the City, its officials, boards, board members, commissions, commissioners, agents and employees against any and all claims, suits, causes of action or proceedings and judgments for damages or equitable relief which are caused by the acts, errors and omissions of Applicant arising out of the construction and maintenance of its Facilities.
Recovery by the City of any amounts under the performance bond or otherwise does not limit an Applicant's duty to indemnify the City in any way, nor shall such recovery relieve an Applicant of its obligations under a Permit or reduce the amounts owed to the City other than by the amounts recovered by the City under the performance bond or in any respect prevent the City from exercising any other right or remedy it may have.
Penalties. For each violation of provisions of this Chapter or a Permit granted pursuant to this Chapter as to which the City has given notice to Applicant as provided in this Chapter, penalties may be chargeable to the Applicant at a rate not exceeding one hundred dollars ($100.00) per day for so long as the violation continues.
[CC 1999 §23-84; Ord. No. 99-2 §1, 1-11-1999]
Compliance With Laws. Each Applicant shall comply with all applicable City ordinances, resolutions, rules and regulations heretofore and hereafter adopted or established.
Rights And Remedies.
The exercise of one (1) remedy under this Chapter shall not foreclose use of another, nor shall the exercise of a remedy or the payment of damages or penalties relieve an Applicant of its obligations to comply with its Permits. Remedies may be used alone or in combination; in addition, the City may exercise any rights it has at law or equity.
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provisions of this Chapter.
No Applicant shall be relieved of its obligation to comply with any of the provisions of this Chapter by reason of any failure of the City to enforce prompt compliance.
Incorporation By Reference. Any Permit granted pursuant to this Chapter shall by implication include a provision that shall incorporate by reference this Chapter into such Permit as fully as if copied therein verbatim.
Force Majeure. Any Applicant shall not be deemed in violation of provisions of this Chapter where performance was rendered impossible by war or riots, civil disturbances, floods or other natural catastrophes beyond the Applicant's control and a Permit shall not be revoked or an Applicant penalized for such non-compliance, provided that the Applicant takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with its Permit without unduly endangering the health, safety and integrity of the Applicant's employees or property, the public, Public Rights-of-Way, public property or private property.
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter or payment is required under this Chapter or any Permit and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the first (1st) and include the last day of the prescribed or fixed period of time.
Severability. If any term, condition or provision of this Chapter shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision that has been held invalid is no long invalid, said provisions shall thereupon return to full force and effect without further action by the City and shall thereafter be binding on the Applicant and the City.
[CC 1999 §23-85; Ord. No. 99-2 §1, 1-11-1999]
The provisions hereof shall specifically apply to any lands or property annexed as of the date of such annexation.
[CC 1999 §23-86; Ord. No. 99-2 §1, 1-11-1999]
Whenever, by reason of changes in the grade or widening of a street or in the location or manner of constructing a water pipe, drainage channel, sewer or other City-owned underground or above ground structure, it is deemed necessary by the City to move, alter, change, adapt or conform the underground or above ground facilities of user, user shall make the alterations or changes, on alternative right-of-way provided by the City, if available, as soon as practicable after being so ordered in writing by the City without claim for reimbursement or damages against the City.
[CC 1999 §23-87; Ord. No. 99-2 §1, 1-11-1999]
Any standards in this Chapter relating to Facilities Work shall be fully applicable to work performed by the City and its departments.
[CC 1999 §23-88; Ord. No. 99-2 §1, 1-11-1999]
Nothing contained herein shall in any manner be deemed or construed to alter, modify, supersede, supplement or otherwise nullify any other ordinances of the City or requirements thereof, whether or not relating to or in any manner connected with the subject written hereof, unless expressly provided otherwise herein or hereafter.