[Ord. No. 99-01 §1, 1-4-1999]
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.
[Ord. No. 99-01 §2, 1-4-1999]
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 including 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.
APPLICANT
The specific person applying for and receiving a permit under
this Chapter.
APPLICATION
That form designed by the Superintendent of Public Works
which an applicant must use to obtain a permit to conduct facilities
work across, over or under the City's right-of-way.
CITY
The City of Tipton, Missouri.
EXCAVATION
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.
FACILITIES
Any conduit, duct, line, pipe, wire, hose, cable, culvert,
tube, pole, receiver, transmitter, satellite dish, micro call, 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.
PERMIT
A permit granted by the Superintendent of Public Works to
do facilities work within the public rights-of-way.
PERSON
An individual, partnership, association, joint stock company,
trust, organization, limited liability company, corporation, or other
entity, or any lawful successor thereto to 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 and 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.
[Ord. No. 99-01 §3, 1-4-1999]
A. 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,
unless such facilities work must be performed on an emergency basis,
then the person conducting the work shall as soon as practicable notify
the City of the location of the work and apply for the required permit
by the third (3rd) business day following the commencement of the
facilities work.
1. All applications for permits shall be submitted to the Superintendent
of Public Works. The Superintendent of Public Works shall design and
make available standard forms for such applications, requiring such
information as the Superintendent of Public Works 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 Superintendent of Public Works shall review each application for a permit and, upon determining that the applicant has 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
(4). In order to avoid excessive processing and accounting costs to the City or the applicant, the Superintendent of Public Works shall have authority to establish procedures for bulk processing of applications and periodic payment of fees.
4. It is the intention of the City that disruption of the public rights-of-way
should be minimized. Upon receipt of an application for a permit,
the Superintendent of Public Works 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 Superintendent of Public Works reasonable satisfaction that the facilities work involves any of the following: (a) no significant disruption or damage to the public rights-of-way, or (b) time sensitive maintenance; then the Superintendent of Public Works 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
(8); and
b. For circumstances where the Superintendent of Public Works determines
that there will be significant excavation of the public rights-of-way
and no exemption under (4)(a) or any other provision of this Section
applies, the Superintendent of Public Works may, consistent with the
time requirements set forth in Section (3) and in the permit, direct
permit holders performing 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 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 Superintendent
of Public Works with reasonable advance notice of such dates once
they are determined; length of public rights-of-way; number of road
crossings, information regarding scheduling and coordination of facilities
work if applicable; and location of facilities.
6. The Superintendent of Public Works may include in permits such conditions
and requirements as are reasonable 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 continuity of pedestrian
and vehicular traffic.
7. The Superintendent of Public Works may deny a permit application
for the following reasons if deemed in the public's interest:
a. Undisputed past due fees from prior permits,
b. Failure to return the right-of-way to its previous condition under
previous permits,
c. Undue disruption to existing utilities, transportation or City use,
d. Area is environmentally sensitivity as defined by State or Federal
Statute,
e. Failure to provide required information, and
f. The applicant is in violation of the provisions of this Chapter,
g. When the Board of Aldermen have passed a resolution directing the
Superintendent of Public Works not to issue a permit.
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Notwithstanding the provisions of Subsections (7)(c) and (7)(d) above, the Superintendent of Public Works will cooperate with the applicant to identify alternative routes which most nearly match the routes requested by applicant for the placement of facilities.
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8. Applicant may appeal any final decision of the Superintendent of
Public Works to the Governing Body of the City, which shall consider
the appeal within sixty (60) days or at its next regular meeting,
whichever occurs first.
9. Applicant must pay the following fees. 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.
a. Permit fee. A fee charged to recover the City's
actual costs for an applicant's facilities 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 fifty dollars ($50.00).
b. 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 regulate
applications, permits 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.
[Ord. No. 99-01 §4, 1-4-1999]
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 Superintendent of Public Works 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 Moniteau 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 is 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.
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 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.
[Ord. No. 99-01 §5, 1-4-1999]
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 Superintendent
of Public Works 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 Superintendent of Public Works.
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 at the bond, any damages
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
Superintendent of Public Works, the Superintendent of Public Works
shall release 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 Superintendent of Public Works 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, by certified mail, return receipt
requested, or a written notice from the issuer of the bond of intent
to cancel or not to renew."
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 or 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 amount 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
the City may have.
B. Penalties. For each violation of provisions of this Chapter
or a permit granted pursuant to this Chapter as to which 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.
[Ord. No. 99-01 §6, 1-4-1999]
A. Compliance With Laws. Each applicant shall comply with all
applicable City ordinances, resolutions, rules and regulations heretofore
and heretoafter adopted or established.
B. Franchise Not Superseded. Nothing herein relives the City
from any obligations under an existing franchise.
Nothing herein shall be deemed to relieve an applicant of the
provisions of an existing franchise, license or other agreement or
permit.
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. An 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
right-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 an event of a subsequent change in applicable
law so that the provision shall thereupon return to full force and
effect without further action by the City it shall thereafter be binding
on the applicant and the City.
[Ord. No. 99-01 §7, 1-4-1999]
The provisions hereof shall specifically apply to any lands
or property annexed as of the date of such annexation.
[Ord. No. 99-01 §8, 1-4-1999]
Whenever, by reason of changes in the grade or widening of a
street or in the location or manner of construction 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.
[Ord. No. 99-01 §9, 1-4-1999]
Any standards in this Chapter relating to facilities work shall
be fully applicable to work performed by the City and its department.