[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.
The City Administrator or his/her designee.
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.
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.
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]
A.
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.
1.
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.
2.
Each such application shall be accompanied by payment of fees
as designated in this Chapter.
3.
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.
4.
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:
a.
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:
(1)
No significant disruption or damage to the public
rights-of-way; or
b.
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.
5.
Each permit shall include:
a.
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.
b.
Length of public right-of-way.
c.
Number of road crossings.
d.
Information regarding scheduling and coordination of facilities
work if applicable.
e.
Location of facilities.
6.
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:
a.
The location of all visible topographic features affected by
the project within the public right-of-way;
b.
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;
c.
Complete plan and profile drawings detailing the restoration
of the public right-of-way and the design details of such restoration;
d.
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").
7.
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.
A detailed description of all services proposed to be provided
in the City by the applicant;
b.
The area proposed to be served within the City by the applicant;
c.
The manner in which services are proposed to be rendered to
customers in the City;
d.
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;
e.
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;
f.
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;
g.
Evidence of the technical ability of the applicant to construct,
maintain and operate the proposed facility or structure in compliance
with law.
8.
An application to construct a communications tower shall be
reviewed and processed within one hundred twenty (120) calendar days.
9.
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:
a.
Standard details, including the type and nature of the work;
b.
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;
c.
An erosion control plan as required by applicable provisions
of the Code;
d.
Traffic control plan in compliance with applicable provisions
of the Code; and
e.
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;
f.
A landscape plan; and
g.
A schedule for excavation work and restoration work, including
a proposed start and end date.
B.
Permit Denial. The Codes and Zoning Department may deny a permit
application for the following reasons if deemed in the public's
interest:
1.
Undisputed past due fees from prior permits;
2.
Failure to return the right-of-way to its previous condition
under previous permits;
3.
Undue disruption to existing utilities, transportation or City
use;
4.
Area is environmentally sensitive as defined by State or Federal
statute;
5.
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;
6.
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:
a.
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;
b.
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;
c.
Degree of disruption to surrounding communities and businesses
that will result from the use in that part of the public right-of-way.
7.
Failure to provide required information; or
8.
Applicant is in violation of the provisions of this Chapter.
10.
The reasons for the permit denial must be made available to
the applicant at the time the permit is denied.
C.
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.
1.
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.
D.
Fees. The applicant must pay the following:
1.
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.
2.
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).
E.
Applicant Subject To Other Laws — Police Power.
1.
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.
2.
No action or omission of the City shall operate as a future
waiver of any rights of the City under this Chapter.
3.
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]
A.
Oversight Of Facilities Work.
1.
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.
2.
Facilities Work shall be subject to periodic inspection by the City.
3.
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.
4.
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.
B.
Construction Standards.
1.
The construction, operation, maintenance and repair of Facilities
shall be in accordance with applicable health, safety and construction
codes.
2.
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.
3.
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.
4.
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.
5.
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]
A.
Performance Bond.
1.
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.
2.
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.
3.
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.
4.
A performance bond shall be issued by a surety acceptable to the
City and shall contain the following endorsement:
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"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."
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5.
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.
6.
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.
B.
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]
A.
Compliance With Laws. Each Applicant shall comply with all
applicable City ordinances, resolutions, rules and regulations heretofore
and hereafter adopted or established.
C.
Rights And Remedies.
1.
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.
2.
The City hereby reserves to itself the right to intervene in any
suit, action or proceeding involving any provisions of this Chapter.
3.
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.
D.
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.
E.
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.
F.
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.
G.
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.
