[Ord. No. 2001-29 § 1(1), 6-12-2001]
The regulations contained herein are necessary to encourage
the interest of public safety and welfare and right-of-ways are a
fixed resource which needs to be managed to maximize the preservation
of essential services to the inhabitants of Lexington, Missouri. In
light of changes in the law and technology, the City of Lexington
expects an increase in the use and excavation in the right-of-way,
therefore the City of Lexington needs to control and regulate the
right-of-way to protect public safety and welfare. Due to damages
to the right-of-way caused by excavation, this accelerates the end
of the useful life of the pavement. The City of Lexington finds that
the demand to perform work in its public right-of-way by service providers
can be effectively administered through the issuance of a permit.
[Ord. No. 2001-29 § 1(2), 6-12-2001]
As used in this Article, the following terms shall have these
prescribed meanings:
Those facilities owned by the ROW user that are not is use
and will not be utilized by the owner in the future.
The fee charged by the City to recover its cost incurred
for right-of-way management including, but not limited to, costs associated
with registering applicants; issuing, processing and verifying right-of-way
permit applications; inspecting job sites and restoration improvements;
determining the adequacy of right-of-way restoration; revoking right-of-way
permits; and other costs the City may incur in managing the provision
of this Article.
Any person requesting permission to occupy, lease or operate
facilities using the right-of-way or to excavate the right-of-way.
The form designed by the City Engineer which an applicant
must use to obtain a permit.
The area within one (1) foot around a street excavation where
the pavement and subgrade is impacted by the excavation and is subject
to more rapid deterioration.
Includes construct, install, erect, build, affix or otherwise
place any fixed structure or object in, on, under, through or above
the right-of-way.
The accelerated depreciation of a street caused by excavation
in or disturbance of the paved portion of the street that is normally
subject to vehicular traffic resulting in the need to reconstruct
such right-of-way earlier than would be required if the excavation
did not occur.
The area of the excavation in the public right-of-way and
the area one (1) foot around the perimeter of the excavation.
Facilities work made necessary by unexpected emergency condition
including, but not limited to, the following:
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of facilities that prevents or significantly jeopardized
the ability of a public utility to provide services to customers;
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of facilities that results or could result in danger
to the public or a material delay or hindrance to the provision of
service to the public if the outage, cut, rupture, leak or other such
failure is not immediately repaired, controlled, stabilized or rectified;
or
Any occurrence involving a facility that a reasonable person
would conclude, under the circumstances, warrants immediate and undelayed
action by the owner of the facility in order to protect the public
and the public rights-of-way.
Includes any cutting, digging, excavating, tunneling, boring,
grading or alteration of the surface or subsurface material or earth
in the right-of-way.
Lines, pipes, irrigation systems, wires, cables, conduit
facilities, poles, towers, vaults, pedestals, boxes, appliances, antennas,
transmitters, gates, meters, appurtenances or other equipment.
A service provider owning or possessing facilities in the
right-of-way.
The area between a property line and the street curb.
Includes Portland cement concrete pavement, asphalt concrete
pavement, asphalt treated road surfaces and any aggregate based material.
Any natural or corporate person, business association or
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 any other legal entity.
Any project undertaken by the City for the construction,
reconstruction, maintenance or repair of any public infrastructure
and including, without limitation, streets, alleys, bridges, bikeways,
parkways, sidewalks, sewers, drainage facilities, traffic control
devices, street lights, public facilities, public buildings or public
lands; provided that projects undertaken by the City for the construction,
reconstruction, maintenance or repair of any public infrastructure
funded by or substantially by user fees imposed upon those using the
public infrastructure shall not be deemed "public improvements" and
shall not be exempt from the permit requirements of this Article.
Any real property of the City that is not right-of-way.
The area on, below or above the present and future City streets,
alleys, bridges, bikeways, parkways and sidewalks.
The authorization to excavate for the construction, installation,
repair or maintenance of any type of facility within the right-of-way.
A person, its successors and assigns that uses the right-of-way
for purposes of work, excavation, provision of services or to install,
construct, maintain, repair facilities thereon including, but not
limited to, landowners and service providers. A ROW user shall not
include ordinary vehicular or pedestrian traffic or any governmental
entity that has entered into an inter-local agreement with the City
regarding the use and occupancy of the City's right-of-way (unless
that governmental entity is acting as a service provider in a proprietary
capacity) or a reseller service provider that does not own or control
its own facilities in the right-of-way.
A commodity provided to a person by means of a delivery system
that is comprised of facilities located or to be located in the right-of-way
including, but not limited to, gas, telephone, cable television, internet
services, open video systems, alarm systems, steam, electric, water,
telegraph, data transmission, petroleum pipelines or sanitary sewerage.
Any person that is a provider of a service for or without
a fee that has the requisite certifications and authorizations from
applicable governmental entities, including the FCC (Federal Communications
Commission), to provide such service. Service providers includes both
facility-based service providers and reseller service providers.
[Ord. No. 2001-29 § 1(3), 6-12-2001]
A.
It is the policy of the City to authorize any service provider to
utilize the right-of-way in a competitively neutral, non-discriminatory
manner that maximizes the efficient use of and conserves the right-of-way
and minimizes the burden on the right-of-way physically and aesthetically.
Any use of the right-of-way by a ROW user shall be subject to the
terms and conditions hereof in addition to applicable Federal, State
or local requirements.
B.
This article also is designed to regulate occupancy and excavations
in the right-of-way by providing, among other things, for the issuance
of permits to construct, reconstruct, repair and maintain facilities
within the right-of-way in the City.
[Ord. No. 2001-29 § 1(4), 6-12-2001]
The City Engineer is the principal City Official authorized
to administer right-of-way permits for work and excavations made in
the right-of-way. The City Engineer may delegate any or all of the
duties hereunder.
[Ord. No. 2001-29 § 1(5), 6-12-2001]
Any person desiring to conduct facilities work within the 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, unless such facilities work is emergency facilities work.
A person conducting emergency facilities work shall as soon as practicable
notify the City of the location of the work and shall apply for the
required permit by the next business day following the commencement
of such emergency facilities work. A permit should be obtained for
each project.
1.
Any existing service provider must register within thirty (30) days
of the effective date of this Article.
2.
Any person who is not an existing service provider prior to the effective
date of this Article and who wishes to become a service provider must
first register with the City.
3.
The service provider shall report any changes in its registration
information within thirty (30) days.
4.
No service provider shall be authorized to utilize the right-of-way
in any capacity or manner without registering and obtaining the necessary
right-of-way permit from the City. The permits shall be conspicuously
displayed at all times at the work site.
5.
The information required for registration includes the following:
a.
Identity and legal status of service provider, including related
affiliates.
b.
The name, address and telephone number of the applicant.
c.
The name, address and telephone number of a responsible person whom
the City may notify or contact at any time concerning the applicant's
facilities work within the public right-of-way.
d.
The name, address and telephone number of the owner of the facilities
if applicant is not the owner.
e.
An engineering site plan showing the proposed location of the applicant's
facilities, including proposed manholes or poles; length, size, type
and depth of facilities; relationship to other facilities; and number
of street crossings and their locations and dimensions.
f.
Projected commencement and termination dates, unless such dates are
unknown at the time the permit is issued, in which case a provision
requiring the permit holder to provide the City Engineer with reasonable
advance notice of such dates once they are determined shall be included.
The anticipated duration of the facilities work shall be provided
at the time of the application.
g.
Copies or other proof of certificates of insurance.
h.
Any additional information the City Engineer may require including,
but not limited to, such conditions and requirements as are reasonably
necessary to protect structures and facilities in the public rights-of-way
from damage and for the proper restoration of such public rights-of-way,
structures and facilities and for the protection of the public and
the continuity of pedestrian and vehicular traffic.
6.
The service provider shall participate in any joint planning, construction
and advance notification of right-of-way, including coordination and
consolidation of street cut work as directed by the City Engineer.
7.
To the extent allowed by law, the City may limit the number of registrations
in a competitively neutral manner based upon, but not necessarily
limited to, specific local considerations such as:
8.
Payments of fees. Each application shall be accompanied
by payment of fees as designated in this Article.
9.
Authority of applicant. The City Engineer shall review each application and, upon determining that the applicant has all requisite authority to perform the 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 (13) hereof.
10.
Review of application. It is the intention of the
City that disruption of the public rights-of-way should be minimized.
Upon receipt of the application, the City Engineer shall:
a.
Evaluate the degree of excavation necessary to perform the facilities
work in the public rights-of-way and determine whether the proposed
excavation will be more than minor in nature. If the applicant can
show to the City Engineer's reasonable satisfaction that the
facilities work involves no significant disruption or damage to the
public rights-of-way or that the facilities work involves time-sensitive
maintenance, then the City Engineer shall grant the permit without
delay; provided, that if the permit is not issued in ten (10) business
days, the aggrieved party may appeal as provided in Subsection (14);
and
b.
For circumstances where the City Engineer determines that there will be significant excavation of the public rights-of-way and where no exemption under (10)(a) or any other provisions of this Subsection applies, the City Engineer may, consistent with the time requirements set forth in Section 23-45 and in the permit, direct permit holders performing facilities work in the same area to consult with the City Engineer on how they may schedule and coordinate their work to accomplish the goals of this Article.
c.
All public works supervisors must sign off on the plans and specifications
prior to the City Engineer approval of the permit. Supervisors must
review the plans and specifications within forty-eight (48) hours
of the application date.
11.
Changes. An applicant receiving a permit shall promptly
notify the City Engineer of any changes in the information submitted
in his application.
12.
Index. The City Engineer shall maintain an index
of all applicants who have been granted permits and their point(s)
of contact.
13.
Denial of permit. The City Engineer may deny an
application for any of the following reasons if deemed in the public
interest:
a.
Undisputed past-due fees from prior permits or delinquent debt owed
to the City.
b.
Failure to return the public rights-of-way to their previous condition
under previously-issued permits.
c.
Undue disruption to existing use of the public rights-of-way by the
public, the City or other utilities.
d.
Environmental sensitivity, as defined by State or Federal Statutes,
of land within the desired project's scope.
e.
The applicant is in violation of the provisions of this Article.
f.
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 user.
g.
Availability of space where the permit is being sought.
h.
Whether the issuance of a right-of-way permit for the particular
dates and/or time requested would cause a conflict or interferes with
an exhibition, celebration, festival or any other event.
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If a permit is denied under Subsection (13)(c) or (13)(d), the
City Engineer shall cooperate with the applicant to identify alternative
routes which most nearly match the routes requested by the applicant
for the placement of facilities.
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The City Engineer may issue a right-of-way permit in any case
where the permit is necessary to allow such user to materially improve
the service provided by the applicant or to prevent substantial economic
hardship to a user of the applicant's service.
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14.
Appeal of denial. Applicant may appeal within ten
(10) calendar days of the date of notice of such final decision of
the City Engineer to the City Administrator or Mayor, which appeal
shall be acted upon by the City Administrator or Mayor within five
(5) business days and if denied by the City Administrator or Mayor,
the applicant may then appeal to the City Council which shall act
upon the appeal within thirty (30) days. If a permittee still deems
himself aggrieved after the appeal to the City Council, such permittee
shall have thirty (30) days after the effective date to institute
an action in the Circuit Court of Lafayette County, Missouri.
15.
Applicable fees. The fees collected pursuant to
this Section will be used only to reimburse the City for costs incurred
in managing the public rights-of-way and will not be used to generate
revenue above such costs. Fees paid for a right-of-way permit which
is subsequently revoked by the City Engineer are not refundable.
a.
Non-exclusive franchises and owners of more than one thousand (1,000)
lineal feet of facilities within the public rights-of-way shall be
required to pay an annual fee of one thousand dollars ($1,000.00).
This fee is in lieu of and shall relieve such persons of the obligations
to pay such fees as would be ordinarily be required under Subsection
(15)(b) below for each permit sought during the given year.
b.
The fee required for a single excavation permit shall be one hundred
dollars ($100.00).
c.
Supplementary applications shall be a fee of twenty-five dollars
($25.00).
16.
Revocation of permit. Permittees hold right-of-way
permits as a privilege and not as a right. The City reserves its right
to revoke any right-of-way permit, without refund of the permit fee,
in the event of a substantial breach of the terms and conditions of
any law or the right-of-way permit. Upon breach the City Engineer
shall make a written demand upon the permittee to remedy such violation
within five (5) calendar days of receiving notification of the breach.
The permittee is required to submit a plan to the City Engineer within
that five (5) days for the correction. If the permit is revoked, the
permittee shall also reimburse the City for its reasonable costs,
including administrative costs, restoration costs and the costs of
collection and reasonable attorney's fees, incurred in connection
with such revocation. A substantial breach shall include, but not
limited to, the following:
a.
Failure to maintain the required bond or insurance.
b.
Repeated traffic control violations.
c.
Failure to repair facilities damaged in the right-of-way.
d.
Failure to complete the work in a timely manner.
e.
Any material misrepresentation of any fact in the permit application.
f.
An evasion or attempt to evade any material provision of the right-of-way
permit or the perpetration or attempt to perpetrate any fraud or deceit
upon the City or its citizens.
[Ord. No. 2001-29 § 1(6), 6-12-2001]
A.
Oversight Of Facilities Work.
1.
Applicants shall comply with all City Codes and ordinances.
2.
Facilities work shall be subject to periodic inspections by the City.
An inspection will be required at the start of backfilling. Upon completion
of all right-of-way restoration activities, the permittee will schedule
a closeout inspection with the Street Commissioner.
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 or unsafe traffic control. Such corrective or stop
work orders shall state that work not authorized by a permit is being
carried out, summarize the unauthorized work and provide a period
of not longer than thirty (30) days to cure the problem; provided
however, that the order may require immediate remedial action or the
cessation of activities where such is necessary to protect the public
safety. Such orders may be delivered personally or by certified mail
to the address listed on the application or to the person in charge
of the construction site at the time of delivery. Such orders may
be enforced by equitable action in Circuit Court of Lafayette County,
Missouri. If the City prevails, 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 the order,
in addition to any and all fines and penalties established in this
Article.
4.
Any person who engages in facilities work in the public rights-of-way
without a valid permit from the City shall nonetheless be subject
to all requirements of this Article. Unless the facilities work is
emergency facilities work, 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:
a.
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;
b.
Require such person to remove its property and restore the affected
area to a condition satisfactory to the City; or
c.
Take any other action it is entitled to take under applicable law
including, but not limited to, filing for and seeking damages for
trespass.
5.
Owners of facilities that maintain more than one thousand (1,000)
lineal feet of facilities within the public rights-of-way shall keep
complete and accurate maps and records of the location of their facilities.
Within twelve (12) months of the effectiveness of this Article, any
person maintaining or owning more than one thousand (1,000) lineal
feet of facilities within the public rights-of-way shall file with
the City Engineer a detailed map of those portions of that person's
facilities lying within the public rights-of-way. Maps furnished to
the City Engineer shall show the location of the facilities and their
relationship to the public rights-of-way boundaries. Map updates shall
be provided to the City Engineer at the time of payment of the annual
excavation permit fee. The City shall indemnify the owners of facilities
required to provide a map from any damages or harm caused by the improper
use or distribution of the maps and/or records provided by the owners
of the facilities. Such maps are intended to be proprietary to the
owners of the facilities and not owned by the City. The City, to the
extent permitted by law, will not provide such maps to third (3rd)
parties.
6.
The rights granted by a permit inure to the benefit of the applicant.
The rights and permits shall not be assigned, transferred, sold or
disposed of, in whole or in part, by voluntary sale, merger, consolidation
or otherwise, including by force or involuntary sale, without the
express written consent of the City. Such consent shall not be withheld
unreasonably nor required for assignment to entities that control,
are controlled by or are under common control with the applicant.
7.
Should any applicant fail to abide by the terms of a permit, the
City Council may, after thirty (30) days' written notice of breach
or default and after a public hearing in which applicant has been
afforded due process, terminate a permit if applicant has failed to
undertake reasonable steps to cure such breach or default. Upon such
termination, the City may order the removal of any of the applicant's
facilities under the permit and if applicant should refuse, the City
may remove such facilities at applicant's sole expense.
B.
Construction Standards.
1.
All facilities work shall be performed in accordance with applicable
health, safety and construction codes.
2.
All facilities shall be installed and located so as to minimize interference
with the public and with other users of the public rights-of-way,
including the City.
3.
Before initiating construction of new facilities in the public rights-of-way,
the applicant shall make all reasonable efforts to use existing facilities.
An applicant shall not place facilities where they will damage or
interfere with the use or operation of those previously installed
or obstruct or hinder the various utilities serving the residents
and businesses in the City in 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 applicant
to their previous condition, at applicant's expense.
5.
Any subcontractor of applicant used for facilities work must be properly
licensed under the law of the State and all applicable local ordinances
and each subcontractor shall have the same obligations with respect
to its work as applicant would have hereunder. Applicant shall be
responsible for ensuring that the work of all subcontractors is performed
consistent with its permits and applicable law, shall be fully responsible
for all acts or omissions of subcontractors and shall be responsible
for promptly correcting acts or omissions by the subcontractor.
6.
After any excavation, the permittee shall, at its expense, restore
all portions of the right-of-way to the same condition that it was
prior to the excavation.
7.
If the permittee fails to restore the right-of-way in the manner
and to the condition required or fails to satisfactorily and timely
complete all restoration, the City may, at its option, serve written
notice upon the permittee and its surety that, unless within five
(5) days after serving of such notice a satisfactory arrangement can
be made for the proper restoration of the right-of-way, the City shall
immediately serve notice of failure to comply upon the surety and
the permittee and the surety shall have the right to take over and
complete the work; provided however, that if the surety does not commence
performance thereof within ten (10) days from the date of notice,
the City may take over and prosecute same to completion, by contract
or otherwise, at the expense of the permittee and the permittee and
its surety shall be liable to the City for any and all excess cost
assumed by the City by reason of such prosecution and completion.
8.
In restoring the right-of-way, the permittee guarantees its work
and shall maintain it for twenty-four (24) months following its completion.
During the twenty-four (24) months the permittee shall, upon notification
from the City, correct all restoration work to the extent necessary.
Said work shall be completed within a reasonable time, not to exceed
thirty (30) calendar days, of the receipt of notice. The City Engineer
shall have the authority to extend the guarantee period for up to
an additional twenty-four (24) months from the date of the new restoration
if the City Engineer determines any overt action by the permittee
not to comply.
9.
The twenty-four (24) month guarantee period shall be applicable to
failure of the pavement surface as well as failure below the pavement
surface.
[Ord. No. 2001-29 § 1(7), 6-12-2001]
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 the
penal sum of two thousand dollars ($2,000.00). Owners of facilities
that maintain more than one thousand (1,000) lineal feet of facilities
within the public rights-of-way and franchises shall establish in
the City's favor a performance bond in the penal sum of five
thousand dollars ($5,000.00). An annual bond of fifty thousand dollars
($50,000.00) automatically renewed yearly shall satisfy the requirement
of this Section. Differences in bond requirements, including provision
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 and the past performances of the applicant
but may not be based on the characteristics of the applicant.
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 on the bond, any damage
or loss suffered by the City as a result, plus a reasonable allowance
for attorney's fees, up to the full amount of the bond.
3.
Upon completion of the facilities work to the satisfaction of the
City Engineer, the City Engineer shall eliminate the bond 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: "This bond may not
be canceled or allowed to lapse until sixty (60) days after receipt
by the City of Lexington, Missouri, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
5.
Recovery by the City of any amounts under the performance bond 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 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 rights or remedy it may
have.
6.
Evidence of liability insurance with an insurance company licensed
to do business in Missouri shall be submitted and on file with the
City. The amount will be not less than one million dollars ($1,000,000.00)
per occurrence and two million dollars ($2,000,000.00) in aggregate.
The insurance will protect the City from and against all claims by
any person whatsoever for loss or damage to the extent caused or alleged
to have been caused by the negligent acts or omissions of the permittee.
If the permittee is self-insured, it shall provide the City proof
of compliance regarding its ability to self-insure and proof of its
ability to provide coverage in the above amounts.
B.
Cost Recovery.
1.
In the event that an excavation is not refilled within a reasonable
time after it is ready for refilling, the City Engineer shall notify
the applicant making the excavation that if such excavation is not
filled within four (4) days, it shall be filled by the City. The cost
of such work shall be paid by the permit holder within ten (10) days
after completion and no additional permit shall be issued to that
person until such charge has been paid.
2.
In the event the City incurs additional costs as a result of an unauthorized
action or an inaction by any person and/or owner of facilities, the
City shall have the right to recover from that person or owner any
and all documentable costs incurred including, but not limited to,
the identification of undocumented facilities, completion of improper
facilities work, long-term structural damage, construction delay fees
and penalties, fees paid to other agencies and any other documentable
costs incurred by the City within the public rights-of-way.
[Ord. No. 2001-29 § 1(8), 6-12-2001]
A.
Whenever, by reason of changes to a street or in the location or
manner of constructing a drainage facility, sanitary sewer or other
City-owned underground or above-ground structure, it is deemed necessary
by the City to move, alter, change, adapt or conform existing facilities,
the owner of such facilities shall make the alterations or changes
on alternative right-of-way provided by the City, if available. The
City will endeavor to minimize the interference with previously installed
facilities when conducting its own facilities work.
B.
The City shall provide the ROW user with written notice of relocations
and the anticipated date of said improvements as soon as working drawings
are available. The ROW user shall respond with any conflicts and a
proposed construction schedule within thirty (30) days.
C.
Upon delivery of final design plans for such public improvements,
the ROW user shall remove and relocate its facilities in accordance
with the mutually agreed upon schedule, provided the project is not
delayed by adverse weather conditions.
D.
In the event the ROW user is required to move its facilities in accordance
with this Section, any ordinary right-of-way permit fee shall be waived.
[Ord. No. 2001-29 § 1(9), 6-12-2001]
In the event a service provider shall sell, transfer, lease,
assign, sublet or dispose of its facilities or any portion thereof
that is located in City right-of-way or right, title or interest in
the same or transfer any rights granted by the City to any person
either by forced or involuntary sale or by ordinary sale, consolidation
or otherwise, it shall notify the City of same. In such case, the
buyer, transferee, lessee or assignee shall be subject to the terms
and conditions of this Article, including the requirements to register
as provided in the preceding Section.
[Ord. No. 2001-29 § 1(10), 6-12-2001]
A service provider may permit and has the authority to sell,
sublet or lease any use of excess capacity and sell services for resale
to any reseller service provider providing service within the City,
including the service provider's subsidiary or affiliate. The
reseller service provider shall first register and obtain any necessary
permit, license, certification, grant, registration, franchise agreement
or any other authorization required by any appropriate governmental
entity including, but not limited to, the City or the FCC. Unless
otherwise prohibited by law or regulatory authority, the service provider
shall use all reasonable efforts to provide the City on an annual
basis the identity of entities with which the service provider has
entered into an interconnection and/or resale agreement within the
City.
[Ord. No. 2001-29 § 1(11), 6-12-2001]
A.
The ROW user shall coordinate the placement of facilities in a manner
that minimizes adverse impact on any public improvement as reasonably
determined by the City. Where placement is not regulated, the facilities
shall be placed with adequate clearance from such public improvements
so as not to impact or be impacted by such public improvement.
B.
The ROW user shall consider any request made by the City concerning
placement facilities in private easements in order to limit or eliminate
future street improvement relocation expenses.
C.
All facilities shall be located and laid so as not to disrupt or
interfere with any pipes, drains, sewers, irrigation systems or other
structures or public improvements already installed. Also, avoid,
so far as may be practicable, disrupting or interfering with the lawful
use of the streets, alleys, sidewalks or other public lands of the
City.
D.
The ROW users shall not interfere with the facilities of the other
ROW user without their permission. If the City would require or negotiate
to have a service provider cease using its existing poles and to relocate
its facilities underground, all other service providers using the
same poles shall also relocate their facilities underground at the
same time. The City may waive this requirement when, in its sole discretion,
it deems relocation impractical. The cost of such relocation shall
be borne in accordance with this Article.
E.
All earth, materials, sidewalks, paving, crossings, utilities, other
public improvements or improvements of any kind damaged or removed
by the ROW user shall be fully repaired or replaced promptly by the
ROW user at its sole expense and to the reasonable satisfaction of
the City. If it is a public safety matter, all such repairs or replacement
shall be corrected within twenty-four (24) hours of notice from the
City.
F.
The ROW user shall cooperate promptly and fully with the City and
take all necessary measures to provide accurate and complete on-site
information regarding the nature and location of its facilities within
the right-of-way, both underground and overhead. Such location and
identification shall be at the sole expense of the ROW user.
[Ord. No. 2001-29 § 1(12), 6-12-2001]
A.
It shall be the responsibility of the ROW user to take adequate measures
to protect and defend its facilities in the right-of-way from harm
and damage.
B.
The City and ROW users shall be responsible for taking reasonable
precautionary measures including calling for facility locations.
C.
Any ROW user who for any purpose makes or cause to be made any excavation
in, upon, under, through or adjoining any street, sidewalk, alley
or other right-of-way and shall leave any part or portion thereof
open or shall leave part or portion thereof disrupted with rubbish,
building or other material during construction and/or the nighttime,
shall cause the same to be enclosed with good substantial and sufficient
barricades or drums equipped with the appropriate type warning lights
and orange safety fencing material which is properly secured around
the excavation or the disruption. The sole responsibility for maintaining
proper barricades, plates, safety fencing and/or lights are required
from the time the opening of the excavation until the excavation is
surfaced and opened for travel.
D.
In the event the ROW user severely disturbs or damages the root structure
of any tree in the right-of-way to the detriment of the health and
safety of the tree, the ROW user will be required to remove and replace
the tree at the ROW user's cost.
[Ord. No. 2001-29 § 1(13), 6-12-2001; Ord. No. 2019-23, 6-25-2019]
A.
If the City vacates a right-of-way which contains the facilities
of the service provider and if the vacation does not require the relocation
of the service provider's facilities, the City shall reserve, to and
for itself and all service providers having facilities in the vacated
right-of-way, an easement for the right to install, maintain and operate
any facilities in the vacated right-of-way and to enter upon such
vacated right-of-way at any time for the purpose of reconstructing,
inspecting, maintaining or repairing the same.
C.
If the vacation requires the relocation of facilities; and
1.
If the
vacation proceedings are initiated by the service provider, the service
provider must pay the relocation costs; or
2.
If the
vacation proceedings are initiated by the City, the service provider
must pay the relocation costs unless otherwise agreed to by the City
and the service provider; or
3.
If a person
other than the service provider of the City initiates the vacation
proceedings, such other person must pay the relocation costs.
[Ord. No. 2001-29 § 1(14), 6-12-2001]
The City Engineer may allow underground facilities or portions
thereof to remain in place if it is in the best interest of public
safety to do so. The ROW user shall submit to the City a proposal
and instruments for transferring ownership of its facilities to the
City. Facilities which remain unused for two (2) years shall be deemed
to be abandoned. The City may take possession and ownership of the
facility.
[Ord. No. 2001-29 § 1(15), 6-12-2001]
A.
The permittee shall not make any cut, excavation or grading of right-of-way
other than excavations necessary for emergency repairs without first
securing a right-of-way permit.
B.
The permittee shall notify the City no less than three (3) working
days in advance of any construction, reconstruction, repair, location
or relocation of facilities which would require any street closure
or which reduces traffic flow for more than four (4) hours.
C.
All work performed in the right-of-way or which in any way impacts
vehicular or pedestrian traffic shall be properly signed, barricaded
and otherwise protected at the permittee's expense.
D.
The permittee shall be liable for any damages to underground facilities
or for any damages to underground facilities that have been properly
identified prior to excavation.
E.
The permittee shall be responsible for providing adequate traffic
control to the surrounding area. The permittee shall perform work
on the right-of-way at such times that will allow the least interference
with the normal flow of traffic, the peace and quiet of the neighborhood.
F.
The City may use the as-built records of the service provider's
facilities in connection with public improvements.
[Ord. No. 2001-29 § 1(16), 6-12-2001]
A.
A right-of-way permit shall only be valid for the area of the right-of-way
specified within the permit. Any permittee who determines that an
area greater than that which is specified in the permit must be excavated
must do the following prior to the commencement of work in that greater
area:
B.
A right-of-way permit shall be valid only for the dates specified
in the permit. If a permittee does not complete the work by the permit
end date, the permittee must apply for and received a new right-of-way
permit or a permit extension for additional time.
[Ord. No. 2001-29 § 1(17), 6-12-2001]
A.
A permittee shall not disrupt a right-of-way such that the natural
free and clear passage of water through the gutters or other waterways
is interfered with. Private vehicles may not be parked within or next
to the permit area.
B.
Except in cases of emergency or with approval of the City Engineer,
no right-of-way work may be done when conditions are unreasonable
for such work.
C.
Each applicant shall comply with all applicable Federal and State
laws as well as City ordinances, resolutions, rules and regulations
heretofore and hereafter adopted or established. The ROW user's
rights are subject to the Police powers of the City to adopt and enforce
ordinances necessary to the health, safety and welfare of the public.
Nothing herein shall be deemed to relieve an applicant or the City
of the express provisions of an existing franchise, license or other
agreement or permit.
D.
This Article may be amended from time to time and in no event shall
this Article be considered a contract between the City and an applicant
such that the City would be prohibited from amending any provision
hereof.
E.
Each and every provision hereof shall be subject to acts of God,
fires, strikes, riots, floods, war and other circumstances beyond
the ROW user's or the City's control. Applicant shall take
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, the public
ROW, public property or private property.
F.
The City's failure to enforce or remedy any non-compliance of
the terms and conditions of this Article or of any permit granted
hereunder shall not constitute a waiver of the City's rights
nor a waiver of any person's obligation as herein provided.
G.
The exercise of one (1) remedy under this Article 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 Article. No
applicant shall be relieved of its obligation to comply with any of
the provisions of this Article by reason of any failure to the City
to enforce prompt compliance.
H.
The provisions of this Article shall specifically apply to any lands
or property annexed by City as of the date of such annexation.
I.
Unless otherwise indicated, when the performance or doing of any
act, duty, matter or payment is required under this Article or any
permit and a period of time is proscribed 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.
J.
Nothing herein shall be deemed or construed to impair or affect,
in any way or to any extent, any right the City may have to acquire
the property of the applicant through the exercise of the power of
eminent domain.
K.
In the event the City Council closes or abandons any public ROW which
contain facilities installed hereunder, any land contained in such
closed or abandoned public ROW shall be subject to the rights of the
applicant.
L.
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.
M.
The City shall have the right to waive any provision of this Article
or any registration, permit or other authorization granted thereunder,
except those required by Federal or State law, if the City determines
that it is in the public interest to do so or that the enforcement
of such provision will impose an undue hardship on the person.
[Ord. No. 2001-29 § 1(18), 6-12-2001]
Applicant shall, at its sole cost and expense, indemnify, hold
harmless and defend the City, its officials, boards, Council members,
commissions, agents and employees against any and all claims, suits,
causes of action, proceedings and judgments, including reasonable
attorney's fees, for damage or equitable relief arising out of
the construction and maintenance of the applicant's facilities
work, except to the extent such claim, suit, cause of action or proceedings
and judgments for damages or equitable relief arise out of the negligent
or willful misconduct of the City or its officials, boards, Council
members, commissions agents or employees.
[Ord. No. 2001-29 § 1(19), 6-12-2001]
If any Section, Subsection, sentence, clause, phrase or portion
of the Article is for any 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
hereof.
[Ord. No. 2001-29 § 1(20), 6-12-2001]
For each violation of the provisions of this Article or of a
permit granted pursuant to this Article, as to which the City has
given notice to applicant as provided in this Article, penalties may
be chargeable to the applicant at a rate of not less than one hundred
dollars ($100.00) and not exceeding five hundred dollars ($500.00)
per day for so long as the violation continues. The violation of any
provision of this Article is hereby deemed to be grounds for revocation
of the permit and registration to operate with the City. In addition
to any other remedies, the City Attorney may institute injunction,
mandamus or other appropriate action or proceeding to prevent violation
of this Article.
