[Ord. No. 2005-1 §1, 2-22-2005]
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. 2005-1 §1, 2-22-2005]
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 Code Enforcement Officer which an applicant must use to obtain a permit to conduct facilities work across, over or under the City's right-of-way.
The City of Caruthersville, Missouri.
The City Code Enforcement Officer or his 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 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 shall also include awnings and any support mechanisms for such awnings.
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 Code Enforcement Officer 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.
[Ord. No. 2005-1 §1, 2-22-2005]
A.
All building awnings in the Central Business Zone which extend over the City's right-of-way shall conform to the following standards:
1.
All awnings shall be attached to and fully supported by the property owner's building. No awning shall have vertical support structures attached in any way to the City's sidewalk or right-of-way. No awning shall have visible support structures extending above such awning.
2.
No part of any awning may extend more than five (5) feet into the air space above the City's right-of-way and the outside edge of any awning must be at least four (4) feet from a plane extending vertically along the back of the adjoining street curb.
3.
The bottom of every awning must be at least nine (9) feet above the level of the City's sidewalk below such awning.
4.
Every awning shall consist of an internal support frame covered by either a metal, canvas or vinyl covering.
B.
Awnings existing on the date of passage of this Chapter that are not supported by the City sidewalk shall be permitted to remain over the City's right-of-way, so long as such awnings are safe, remain in a good state of repair and do not extend into the air space above the City's right-of-way more than five (5) feet at a location that would cause them to interfere with the installation of light poles as specified in the City's development and engineering plan for the improvement of downtown streets and sidewalks.
[Ord. No. 2005-1 §1, 2-22-2005]
A.
Permit Requirements. 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 City Code Enforcement Officer. The City Code Enforcement Officer shall design and make available standard forms for such Applications, requiring such information as the City Code Enforcement Officer 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 City Code Enforcement Officer 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 either the City or the Applicant, the City Code Enforcement Officer 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 City Code Enforcement Officer 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 City Code Enforcement Officer'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
(2)
Time sensitive maintenance,
then the City Code Enforcement Officer 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 City Code Enforcement Officer determines that there will be significant excavation of the Public Rights-of-Way and no exemption under Subsection (4)(a) or any other provision of this Section applies, the City Engineer 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 City Code Enforcement Officer 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 City Code Enforcement Officer may include in Permits 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.
7.
The City 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 sensitive 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.
8.
Applicant may appeal any final decision of the City Code Enforcement Officer to the Board of Adjustment.
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 one hundred dollars ($100.00).
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. 2005-1 §1, 2-22-2005]
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 Code Enforcement Officer 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 Pemiscot 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.
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.
[Ord. No. 2005-1 §1, 2-22-2005]
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 Code Enforcement Officer 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 Code Enforcement Officer.
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 attorneys fees, up to the full amount of the bond.
3.
Upon completion of the Facilities Work to the satisfaction of the City Code Enforcement Officer, the City Code Enforcement Officer 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 Code Enforcement Officer 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, of 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 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.
[Ord. No. 2005-1 §1, 2-22-2005]
A.
Compliance With Laws. Each Applicant shall comply with all applicable City ordinances, resolutions, rules and regulations heretofore and hereafter adopted or established.
B.
Franchises Not Superseded. Nothing herein relieves 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 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 the event of a subsequent change in applicable law so that the provision that has been held invalid is no longer 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.
[Ord. No. 2005-1 §1, 2-22-2005]
The provisions hereof shall specifically apply to any lands or property annexed as of the date of such annexation.
[Ord. No. 2005-1 §1, 2-22-2005]
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.
[Ord. No. 2005-1 §1, 2-22-2005]
Any standards in this Chapter relating to Facilities Work shall be fully applicable to work performed by the City and its departments.
[Ord. No. 2005-1 §1, 2-22-2005]
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.