[R.O. 1996 § 505.300; Ord. No. 4557 § 1, 7-20-2015]
A.
This Article is enacted to define the authority
of the City and its officers and employees with regard to public ownership,
control and management of its rights-of-way. The rights-of-way is
a valuable public resource that has required and will continue to
require substantial public investment and is intended to be used by
the public in travel and utilities when such use does not incommode
the public.
1.
Declaration Of Finding And Intent.
The City of Blue Springs (Blue Springs) finds that the public streets,
alleys, easements and other rights-of-way within Blue Springs:
a.
Are critical to the travel and transport
of persons and property in the business and social life of Blue Springs
and in the conduct of the health, education and commerce of its citizens;
b.
Are intended for appropriately regulated
public and private uses and must be managed and controlled consistent
with that intent;
c.
Can be partially occupied by the
facilities of utilities and other public service entities delivering
utility and public services rendered for profit, to the enhancement
of the health, welfare, and general economic well-being of Blue Springs
and its citizens;
d.
Are a unique and physically limited
resource requiring proper management to maximize the efficiency and
to minimize the costs to the taxpayers of the foregoing uses and to
minimize the inconvenience to and negative effects upon the public
from such facilities' construction, placement, relocation, and maintenance
in the rights-of-way;
e.
Are assets of the City of Blue Springs
that taxpayers have spent millions of dollars to acquire, and millions
of dollars to improve and maintain, and that when utility and similar
companies and other users of the rights-of-way excavate and otherwise
disturb the rights-of-way, the City must repave, reimprove, repair
and at times regrade the rights-of-way. Some of this expense is paid
for from the general revenue fund, and some from dedicated tax sources;
f.
Some rights-of-way users have failed
to provide accurate information to City contractors as to the location
and nature of facilities in the rights-of-way, or to relocate facilities
prior to City projects, and make demands on City contractors to pay
for damages to such facilities despite a failure to properly locate
and identify same, resulting in delays in public works projects and
increased costs to the City through higher bids from such contractors,
and have located facilities in such a way as to interfere with large
commercial trucks using the City's rights-of-way; and
g.
Passage of a rights-of-way ordinance
to deal in a competitively neutral fashion with telecommunications
and other utility providers will have a beneficial effect on all the
citizens and users of the rights-of-way as competition among utilities
and telecommunications providers within Blue Springs continues to
increase due to changes in technology, in Federal and State law and
increased demand for such services by City residents, businesses,
educational institutions, governmental officers and other public and
private institutions.
2.
The City finds that the right to
occupy portions of the rights-of-way for limited times and at specific
locations for the business of providing telecommunications services
or utility services is a valuable economic right to use a unique public
resource that has been acquired and is maintained at great expense
to City and its taxpayers, and the economic benefit of such rights
should be shared with all the taxpayers of City.
3.
The City finds that while telecommunications
and fiber optic facilities are in part an extension of interstate
commerce, their operations also involve rights-of-way, municipal franchising,
and vital business and community service, which are of local concern.
4.
The City finds that it is in the
best interest of its citizens to promote the rapid, but safe, development
of telecommunications, fiber optic and utility facilities responsive
to community and public interest, to assure that telecommunications
and utility companies provide adequate, economical and efficient service
to their subscribers, and to assure availability for municipal services,
educational and community services while not compromising the public's
rights to use of the rights-of-way for travel and compensation for
private commercial use of the rights-of-way.
5.
The City finds that it is in the
interest of the public to establish standards for all users of the
rights-of-way not covered by a specific franchise agreement such as
the cable operator or payment of gross receipts taxes regardless of
type of service being provided that:
a.
Consider compensating the City for the fair market value of the property used and reimbursement or recovery of one hundred percent (100%) of ongoing costs associated with the use of such property, including administrative actions as required by Article VI, Sections 23 and 25, of the Missouri Constitution;
b.
Takes into account that a gross receipts
license tax or a franchise fee is paid by some users;
c.
Encourages competition by establishing
terms and conditions under which users may use valuable public property
to serve the public while creating and maintaining a level playing
field among similarly situated participants;
d.
Fully protects the public, other
rights-of-way users and the City from any harm that may flow from
such private commercial use of rights-of-way while providing for innovative
uses of technology;
e.
Protects the authority of the City, in a manner consistent with Federal and State law, including, but not limited to, Sections 82.190, 82.230, 392.080, RSMo., and Article VI, Section 19 of the Missouri Constitution as amended 1971, and as required by Article III, Section 38(a) (prohibition on gifts or grants of property to private entities), and Article VI, Sections 23 and 25 (no grant or aid to corporations of public property) of the Missouri Constitution and as recognized by various State and Federal courts;
f.
Otherwise protects the public interests
in the development and use of City infrastructure, including recognizing
that disturbance of the rights-of-way and infrastructure therein for
utility and facility deployment impacts the rights-of-way in a different
and greater manner than other users both private and public;
g.
Minimizes physical disruption of
the rights-of-way for other users, the City, and travelers while maintaining
aesthetic quality throughout the City while also recognizing the rights
of abutting landowners, including but not limited to landscaping,
uninterrupted use of and undamaged private sewer laterals and waterlines,
irrigation systems and storm pipes;
6.
This Article shall apply to all users
of the rights-of-way engaged in any activities defined in, regulated
by, or requiring a permit pursuant to this Article.
7.
This Article and its application
is in addition to all other City Codes, provisions of this Chapter
and the Design and Construction Manual of the Department of Public
Works as adopted, approved, maintained and modified from time to time
by the Director of Public Works.
[R.O. 1996 § 505.301; Ord. No. 4557 § 1, 7-20-2015]
A.
ABANDONED EQUIPMENT OR FACILITIES
1.
2.
3.
ADJOINING PROPERTY OWNER
APPLICANT
CHARTER
CITY
CITY COUNCIL
CITY ENGINEER
CODE
COMMISSION
CONSTRUCT
CONDUIT
DAY
DESIGN AND CONSTRUCTION MANUAL
DIRECTOR
EMERGENCY
1.
2.
3.
EXCAVATE, EXCAVATING or EXCAVATION
1.
2.
3.
FCC
FACILITY or FACILITIES
FACILITY BASED SERVICE PROVIDER
GOVERNMENTAL ENTITY
MANUAL
MISSOURI ONE CALL
PARKWAY
PAVEMENT
PERSON
PUBLIC IMPROVEMENT
PUBLIC LANDS
PUBLIC WORKS COMMITTEE
RESELLER SERVICE PROVIDER
RESTORATION
RIGHTS-OF-WAY or ROW
1.
2.
3.
4.
RIGHTS-OF-WAY PERMIT
ROUTINE SERVICE OPERATION
ROW-USER
SERVICE
SERVICE PROVIDER
STREET
TEMPORARY TRAFFIC CONTROL
TEMPORARY TRAFFIC CONTROL PERMIT
WORK or WORKING
The following words, terms, and phrases,
when used in this Article, shall have the meanings given to them in
this Section, except where context clearly indicates a different meaning:
Any equipment, materials, apparatuses, devices or facilities
that are:
Declared abandoned by the owner of
such equipment or facilities;
No longer in active use, physically
disconnected from a portion of the operating facility or any other;
or
Facility that is in use or in service,
and no longer capable of being used for the same or similar purpose
for which the equipment, apparatuses or facilities were installed.
A person owning or legally occupying any land abutting a
public right-of-way.
Any person requesting permission to occupy or operate facilities
using the rights-of-way, or to work, excavate, or locate facilities
in the rights-of-way.
The Charter of the City of Blue Springs, Missouri.
The City of Blue Springs, Missouri, a municipal corporation
and any duly authorized representative.
The City Council of the City of Blue Springs, Missouri.
The City Engineer of Blue Springs, Missouri, or an authorized
representative.
The Code of Ordinances of the City of Blue Springs, Missouri.
The Missouri Public Service Commission.
Includes construct, install, erect, build, affix or otherwise
place any fixed structure or object, in, on, under, through or above
the rights-of-way.
A tube or for protecting electric wiring. Synonyms: pipe,
duct, chase, chute.
Calendar day unless otherwise specified.
The official document adopted by the City of Blue Springs
to regulate the construction of public infrastructure improvements
within the City including the design and construction of streets,
water lines, sanitary sewers, and storm sewers.
The Director of Public Works or their specified designee.
When another Director of the City is intended, that Director shall
be referred to with the department they oversee.
Includes, but is not limited to, the following:
An unexpected or unplanned outage,
cut, rupture, leak or any other failure of a ROW-user facility that
prevents or significantly jeopardizes the ability of a ROW-user to
provide service to customers;
An unexpected or unplanned outage,
cut, rupture, leak or any other failure of a ROW-user facility 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 any other such failure of ROW-user facilities
is not immediately repaired, controlled, stabilized or rectified;
or
Any occurrence involving a ROW-user
facility that a reasonable person could conclude under the circumstances
that immediate and undelayed action by the ROW-user is necessary and
warranted.
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, tunneled into, bored into, graded, or otherwise displaced,
by means of any tools, equipment or explosives, except that the following
shall not be deemed excavation:
Any de minimis displacement or movement
of ground caused by pedestrian or vehicular traffic;
The replacement of utility poles
and related equipment at the existing general location that does not
involve either a street or sidewalk cut; 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.
Federal Communications Commission.
Lines, pipes, irrigation systems, wires, cables, conduit
facilities, poles, towers, vaults, pedestals, boxes, appliances, antennas,
transmitters, gates, meters, appurtenances, or other equipment used
for or related to providing service.
A service provider owning or possessing facilities in the
rights-of-way.
Any County, Township, City, Town, Village, school district,
library district, road district, drainage or levee district, sewer
district, water district, fire district or other municipal corporation,
quasi-municipal corporation or political subdivision of the State
of Missouri or of any other State of the United States and any agency
or instrumentality of the State of Missouri or of any other State
of the United States or of the United States.
The Design and Construction Manual adopted, approved, maintained
and modified from time to time by the Director of Public Works.
The procedural requirements for excavation and utility safety
established by Section 319.010 et seq., RSMo., as amended from time
to time.
The area between a property line and the street curb or the
edge of pavement, sometimes called boulevards, tree-shelves or snow-shelves.
Includes portland cement concrete pavement, asphalt concrete
pavement, asphalt treated road surfaces and any aggregate base material.
Any natural or corporate person, business association or
business entity, including, but not limited to, a corporation, 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, or its agents, contractors,
or subcontractors, 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, streetlights, 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 rights-of-way.
The committee comprised of the Director of Public Works,
the City Engineer, the Director of Community Development and the Deputy
City Administrator which shall conduct routine business for the Public
Works Department of the City of Blue Springs, Missouri, with respect
to implementing this Article.
A rights-of-way (ROW) user providing service within the City
that does not have its own facilities in the rights-of-way, but instead
uses the rights-of-way by interconnecting with or using the network
elements of another ROW-user utilizing the rights-of-way, and/or by
leasing excess capacity from a facility based service provider.
The process by which an excavated rights-of-way and surrounding
area, including pavement and foundation, is returned to the same or
better condition than existed before the commencement of the excavation
or work as determined by the Director of Public Works.
Generally public property vested in the City in trust for
the citizens, in fee or easement, to which the public has a right
to access and use for the purpose intended by the dedication, including,
but not limited to, the area on, below or above a public sidewalk,
roadway, highway, street or alleyway in which the City has an ownership
interest, but not including:
The airwaves above a public rights-of-way
with regard to cellular or other non-wire telecommunications or broadcast
service;
Easements obtained by utilities or
private easements in platted subdivisions or tracts;
Railroad rights-of-way and ground
utilized or acquired for railroad facilities to the extent the City
may provide for protection of same or the railroad rights-of-way are
adjacent to or within City rights-of-way; or
Poles, pipes, cables, conduits, wires,
optical cables, or other means of transmission, collection or exchange
of communications, information, substances, data, or electronic or
electrical current or impulses utilized by a utility owned or operated
by a governmental entity pursuant to Chapter 91, RSMo., or pursuant
to a charter form of government.
The authorization to work, excavate, or locate facilities
in the rights-of-way.
Excavation or work that makes no material change to the facilities
and does not disrupt traffic.
A person, its successors and assigns, that uses the rights-of-way
for purposes of work, excavation, provision of services, or to install,
construct, maintain, repair facilities, equipment, or structures thereon
or adjacent to, for which a rights-of-way permit and/or a temporary
traffic control permit is required, including, but not limited to,
landowners and service providers. A ROW-user shall not include ordinary
vehicular or pedestrian traffic.
A commodity provided to a person by means of a delivery system
that is comprised of facilities located or to be located in the rights-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, to provide such
service, including, but not limited to, every cable television service
provider, pipeline corporation, gas corporation, electrical corporation,
rural electric cooperative, telecommunications company, water corporation,
water district, heating or refrigerating corporation or sewer corporation
under the jurisdiction of the public service commission; every municipally
owned or operated utility pursuant to Chapter 91, RSMo., or pursuant
to a charter form of government or cooperatively owned or operated
utility pursuant to Chapter 394, RSMo.; every streetlight maintenance
district; every privately owned utility; and every other entity, regardless
of its form of organization or governance, whether for profit or not,
which in providing a public utility type of service for members of
the general public, utilizes pipes, cables, conduits, wires, optical
cables, poles, or other means of transmission, collection or exchange
of communications, information, substances, data, or electronic or
electrical current or impulses, in the collection, exchange or dissemination
of its product or services through the public rights-of-way. "Service
provider" includes both facility based service providers and reseller
service providers.
The pavement and sub-grade of a City local, collector, commercial,
industrial, or arterial roadway and alleys.
The temporary management of motorized and non-motorized traffic
through the use of official traffic control devices as called for
in the MUTCD (Manual on Uniform Traffic Control Devices) as amended
from time to time, including, but not limited to, signs, markings,
fence, barricades, lights, delineators, and channelizers, as necessary
when the construction, repair, removal, excavation, work, events,
or other activity, whether within or adjacent to the public rights-of-way,
impacts normal traffic conditions.
The written authorization for a ROW-user to act in a manner
that narrows, closes, or otherwise impacts the normal flow of vehicular
traffic or pedestrian traffic on any public street or sidewalk.
The construction, installation, repair or maintenance of
any type of facility within the rights-of-way, unless an exemption
as provided in this Article applies to the routine maintenance of
the facility.
[R.O. 1996 § 505.310; Ord. No. 4557 § 1, 7-20-2015]
A.
The Director is the principal City official
responsible for administration of the rights-of-way registration and
permitting processes. The Director may delegate any and all duties
under this Article consistent with the Charter.
B.
The Public Works Committee may hear appeals
as provided under this Article and make recommendations to the City
Council for actions on appeals.
[R.O. 1996 § 505.320; Ord. No. 4557 § 1, 7-20-2015]
A.
All existing ROW-users who do not possess
a franchise or other written consent to use the ROW approved by the
City Council must register within ninety (90) days of the effective
date of this Article.
B.
Any person who is not a ROW-user prior
to the effective date of this Article and who wishes to become a ROW-user
must first register with the City.
C.
No ROW-user shall be authorized to use
the rights-of-way in any capacity or manner without registering with
the City and obtaining any necessary rights-of-way permit or temporary
traffic control permit from the Director.
D.
The ROW-user shall be responsible for all
costs incurred by the City due to the failure to provide any information
to the City required for registration.
[R.O. 1996 § 505.330; Ord. No. 4557 § 1, 7-20-2015]
Except as provided in this Article,
or as otherwise required by law, no registration may be transferred
without the written consent of the City Council. Any person not named
on a valid registration, including any affiliates or successors in
interest to a registered ROW-user, must register in accordance with
this Article or receive written authorization to transfer the registration.
Written authorization to transfer a registration shall be granted
according to the same standards for a registration. The City shall
not unreasonably withhold its consent to transfer as provided herein.
[R.O. 1996 § 505.340; Ord. No. 4557 § 1, 7-20-2015]
A.
Except as otherwise provided herein, no person, service provider, or ROW-user shall perform excavation or work, as those terms are defined in Section 505.301 hereof, in the rights-of-way without a rights-of-way permit or a permit obtained under another City Code Section. Obtaining a permit under this Article does not excuse or replace permits required under other provisions of this Code.
B.
No adjoining property owner shall construct,
maintain, or permit in or on the portion of the public rights-of-way
to which such land is adjacent, any fixed structure, material or object
without having obtained the appropriate rights-of-way permit under
this Chapter.
C.
The application for a rights-of-way permit
shall be submitted to the Director either by the registered ROW-user
or an authorized agent of the ROW-user who will do the work and/or
excavation in the rights-of-way.
D.
If the Director determines that the applicant
has satisfied the requirements of this Article, the Director shall
issue a rights-of-way permit.
E.
Any person who is found to be working or
excavating in the public rights-of-way without a rights-of-way permit
will be directed to stop the excavation or work until a rights-of-way
permit is acquired and available at the excavation or work site.
F.
Except as otherwise provided herein, no
person, service provider, or ROW-user shall narrow, close, alter,
affect, or otherwise impact the normal flow of vehicular traffic or
pedestrian traffic in the rights-of-way without a temporary traffic
control permit.
G.
The application for a temporary traffic
control permit shall be submitted to the Director either by the registered
ROW-user or an authorized agent of the ROW-user who will do the temporary
traffic control.
H.
If the Director determines that the applicant
has satisfied the requirements of this Article, the Director shall
issue a temporary traffic control permit.
I.
Any person who is found narrowing, closing,
altering, affecting or otherwise impacting the normal flow of vehicular
traffic or pedestrian traffic in the rights-of-way without a temporary
traffic control permit will be directed to stop the cause for temporary
traffic control, remove all temporary traffic control devices, restore
normal traffic conditions and leave the site until a temporary traffic
control permit is acquired and available at the site.
J.
ROW-user equipment, facilities and structures shall be placed so as not to incommode the public, diminish the rights of use of abutting landowners or impede or interfere with the use of other ROW-users and in accordance with Section 505.410(H) in addition to this Subsection. Equipment, facilities and structures shall be placed in accordance with directions and standards set by the Director. In addition, wherever feasible, utility cabinets should be placed in rear yards or other areas not visible from the street right-of-way. Cabinets and other structures to shelter and house equipment shall be screened in a manner to make them less aesthetically obtrusive to the area and painted a color that blends in with the surroundings. The maximum size of such a cabinet allowed in a commercial area or within the ROW for an arterial or through street will be sixty-four (64) cubic feet and the maximum size of such a cabinet allowed in a residential area or within the ROW for a residential street will be twenty-five (25) cubic feet. Any exemption form this size requirement granted by the Director shall also be reviewed by the Planning and Zoning Commission for determination if the size of the cabinet or structure incommodes the public, interferes with abutting landowner rights as recognized by Missouri and Federal law, will interfere or impede a public works project already identified by the City, overwhelms the immediate area rendering it out of scale with adjacent structures, plantings, landscaping and already existing uses, impedes or interferes with other ROW-user rights and access to their own facilities and equipment, or otherwise interferes with traffic both vehicular and pedestrian.
[R.O. 1996 § 505.350; Ord. No. 4557 § 1, 7-20-2015]
A.
Except as provided within this Chapter
for sidewalk and driveway excavation, no person may narrow, alter,
affect or otherwise change or impact the ROW without obtaining a permit
under this Section.
1.
Rights-of-way permit conditions include
the following:
a.
The Director may impose reasonable conditions upon the issuance of a rights-of-way permit and the performance of the ROW-user in order to protect the public health, safety and welfare, to ensure the structural integrity of the rights-of-way, to protect the property and safety of other users of the rights-of-way, and to minimize the disruption and inconvenience to the general public. Notwithstanding the provisions of Section 505.070 of this Code, the deposit and fee for any ROW permit for the installation of facilities under this Article involving excavation or disturbance of surface or built infrastructure such as a cut in a paved surface, and require repair or return to a condition that is the same or better than before the excavation, shall be one thousand five hundred dollars ($1,500.00). A portion of this fee shall serve as a deposit and be refunded to the permit holder less twenty dollars ($20.00) for issuance of the fee and the actual cost of inspection of the area of excavation to determine if the requirements of this Article have been met and any costs associated with the City repairing the area of excavation or returning it to the condition that existed just prior to the excavation.
b.
Any right-of-way or permit fee involving
the right-of-way provided for in this Code, actions of City Council
such as passage of the budget or other policy of the City may be raised
from time to time by posting same on the City's website and in the
City Clerk's office thirty (30) days before the effective date of
same and providing electronic notice to the registered ROW-users of
such posting. The ROW-user may file an objection to any fee and if
it does so, the fee shall be reviewed by City Council and approved,
modified or rejected through a motion, resolution or ordinance. The
payment of this fee and deposit shall not excuse or exempt the ROW-user
from all costs it is liable for under this Article.
c.
When a rights-of-way permit is requested
for purposes of installing additional facilities and the performance
and maintenance bonds for additional facilities is reasonably determined
to be insufficient, the posting of an additional or larger performance
or maintenance bond for the additional facilities may be required
by the Director.
d.
A ROW-user shall perform all excavation
or work in full accord with any and all applicable engineering codes
adopted or approved by the City and in accordance with applicable
Statutes of the State of Missouri, and the rules and regulations of
the commission or any other local, State or Federal agency having
jurisdiction over the parties. A ROW-user shall perform all excavation
or work in conformance with all applicable codes and established rules
and regulations and shall be responsible for all excavation or work
done in the rights-of-way pursuant to its rights-of-way permit, regardless
of by whom the excavation or work is done.
e.
Except in cases of an emergency or
with approval of the Director, no rights-of-way excavation or work
may be done in violation of a stop-work order issued by the Director
if in their determination conditions are unreasonable for such excavation
or work based on standard engineering and construction practices.
f.
A ROW-user 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. No person may park
private vehicles within or next to the work or excavation area, except
for such areas which may be designated and marked as safe areas for
vehicle parking in accordance with an approved temporary traffic control
permit.
g.
If excavation or work is being done
for the ROW-user by another person, a subcontractor or otherwise,
the ROW-user shall be responsible for ensuring that the excavation
or work of said person is performed consistent with its rights-of-way
permit and applicable law and shall be responsible for promptly correcting
acts or omissions by said person.
h.
The Director may establish in the
rights-of-way permit limitations on the amount of excavation or work
which may occur at one time and the amount of rights-of-way which
may be obstructed during construction.
i.
The ROW-user shall, in the performance
of any excavation or work required for the installation, repair, maintenance,
relocation and/or removal of any of its facilities, limit all excavation
or work to that necessary for efficient operation.
j.
The ROW-user shall not permit excavation
or work to remain open longer than is necessary to complete the repair
or installation, and in no event may excavation or work remain open
beyond the expiration of the rights-of-way permit or any approved
extension.
k.
The ROW-user shall perform excavation
or work on the rights-of-way at such times that will allow the least
interference with the peace and quiet of the neighborhood, and shall
not work between the hours of 10:00 p.m. and 7:00 a.m. The ROW-user
may perform excavation work after regular working hours for the Public
Works Department inspectors and on weekends if the Director approves
such a schedule and the ROW-user deposits with the City an amount
mutually agreeable to cover the additional costs to City of supervising
and managing the work during these time periods. City may draw on
this amount as it incurs costs for labor, materials and other expenses.
However, only restoration work will be allowed to be performed on
weekends.
l.
The Director may limit the number
of conduits that may be installed by each ROW-user based on the reasonable
needs to ensure that no one ROW-user may unreasonably consume a disproportionate
amount of the available rights-of-way to deter competition.
2.
Temporary traffic control permit
conditions include the following:
a.
The Director may impose reasonable
conditions upon the issuance of a temporary traffic control permit
and the activities of the ROW-user in order to protect the public
health, safety and welfare, to ensure the structural integrity of
the rights-of-way, to protect the property and safety of other users
of the rights-of-way, and to minimize the disruption and inconvenience
to the traveling public.
b.
A ROW-user shall comply with all
laws, ordinances, codes, regulations and all applicable engineering
codes adopted or approved by the City. A ROW-user shall be responsible
for all traffic control in the rights-of-way pursuant to its temporary
traffic control permit, regardless of who performs the temporary traffic
control.
c.
The Director may order the cessation
of temporary traffic control approved by such permit if in the opinion
of the Director, based on standard engineering and construction practice,
conditions are unreasonable for the continuation of such temporary
traffic control. Except in cases of an emergency or with the approval
of the Director, there shall be no interruption of normal traffic
in violation of a stop-work order issued by the Director.
d.
No person may park private vehicles
within or next to the temporary traffic control area, except for such
areas which may be designated and marked as safe areas for vehicle
parking in accordance with an approved plan and areas where parking
is legally permitted under normal conditions.
e.
If temporary traffic control is being
done for the ROW-user by a third person, such as a subcontractor,
the ROW-user shall be responsible for ensuring that the temporary
traffic control of said third person is performed consistent with
the temporary traffic control permit and applicable law and the permit
holder shall be responsible for promptly correcting any wrongful or
erroneous acts or omissions by said third person.
f.
The Director may establish in the
temporary traffic control permit limitations to the extent to which
traffic may be impacted at any one (1) time.
g.
The ROW-user shall limit all temporary
traffic control to that which is approved through the permit.
h.
The ROW-user shall not impact normal
traffic flow longer than is necessary to complete the project, and
in no event may the impact to traffic exceed the expiration of the
temporary traffic control permit or any approved extension.
i.
Non-emergency temporary traffic control
on arterial and collector streets may not be performed before 9:00
a.m. and after 4:00 p.m. Monday thru Friday, nor anytime on Saturday,
Sunday or public holidays observed by the City of Blue Springs. The
Director may grant exception to this condition in the temporary traffic
control permit.
B.
Issued rights-of-way permits and temporary
traffic control permits are not transferable without prior written
consent of the Director. The Director shall not unreasonably withhold
consent for transfer of a rights-of-way permit or a temporary traffic
control permit.
[R.O. 1996 § 505.360; Ord. No. 4557 § 1, 7-20-2015]
A.
Issued rights-of-way permits and temporary
traffic control permits shall be displayed by the ROW-user at all
times at the indicated project item and shall be available for inspection
by the Director, other City employees and the public at all times.
1.
A rights-of-way permit and a temporary
traffic control permit shall only be valid for the area specified
within such permit.
a.
No ROW-user may cause any excavation
or work to be done outside the area specified in the rights-of-way
permit, except as provided herein.
b.
No ROW-user may cause temporary traffic
control to be done outside the area specified in the temporary traffic
control permit, except as provided herein.
c.
Any ROW-user who determines that
an area greater than that which is specified in the rights-of-way
permit must be excavated must do the following prior to the commencement
of excavation or work in that greater area:
d.
Any ROW-user who determines that
temporary traffic control is necessary for an area greater than that
which is specified in the temporary traffic control permit must do
the following prior to the commencement of temporary traffic control
in that greater area:
2.
A rights-of-way permit and a temporary
traffic control permit shall be valid for sixty (60) days.
a.
No ROW-user may commence excavation
or work before the rights-of-way permit start date or, except as provided
herein, may continue excavation or work after the end date. If a ROW-user
does not complete the excavation or work by the rights-of-way permit
end date, the ROW-user must apply for and receive a new rights-of-way
permit or a rights-of-way permit extension for additional time.
b.
No ROW-user may perform temporary
traffic control before the temporary traffic control permit start
date or, except as provided herein, continue temporary traffic control
after the end date specified in the permit. If a ROW-user requires
temporary traffic control beyond the temporary traffic control permit
end date, the ROW-user must apply for and receive a new temporary
traffic control permit or a temporary traffic control permit extension
for additional time.
c.
One extension of up to sixty (60)
days may be granted for a rights-of-way permit or a temporary traffic
control permit upon request and may be granted without payment by
the ROW-user of additional rights-of-way permit or temporary traffic
control permit fees. To qualify for an extension, a supplementary
application must be submitted to the City prior to the permit end
date.
3.
A rights-of-way permit and a temporary
traffic control permit will only be valid for those persons indicated
on the approved permit and may only be transferred with prior written
consent of the Director.
[R.O. 1996 § 505.370; Ord. No. 4557 § 1, 7-20-2015]
A.
The Director may deny an application for
a rights-of-way permit or a temporary traffic control permit under
this Chapter if:
1.
The ROW-user, or any persons acting
on the behalf of the ROW-user, fails to provide all the necessary
information requested by the City for managing the public rights-of-way.
2.
The ROW-user, or any persons acting
on the behalf of the ROW-user, including contractors or subcontractors,
has a history of non-compliance or permitting non-compliance within
the City. For purposes of this Section, "history of non-compliance,
or permitting non-compliance, within the City," shall mean the ROW-user,
or any persons acting on the behalf of the ROW-user, including contractors
or subcontractors, has failed to return the public rights-of-way to
its previous condition under a previous rights-of-way permit or temporary
traffic control permit.
3.
The City has provided the ROW-user
with a reasonable, competitively neutral, and non-discriminatory justification
for requiring an alternative method for performing the temporary traffic
control, excavation or work identified in the respective rights-of-way
permit or temporary traffic control permit application or a reasonable
alternative route that will result in neither additional installation
expense up to ten percent (10%) to the ROW-user nor a declination
of service quality.
4.
The City determines that the denial
is necessary to protect the public health and safety, provided that
the authority of the City does not extend to those items under the
jurisdiction of the public service commission, such denial shall not
interfere with a ROW-user's right of eminent domain of private property,
and such denials shall only be imposed on a competitively neutral
and non-discriminatory basis. In determining whether denial of a rights-of-way
permit or a temporary traffic control permit application is necessary
to protect the public health and safety, the Director may consider
one (1) or more of the following factors:
a.
The extent to which the rights-of-way
space where the rights-of-way permit or temporary traffic control
permit is sought is available, including the consideration of competing
demands for the particular space in the rights-of-way, or other general
conditions of the rights-of-way.
b.
The applicability of any ordinance,
Code provision, or other regulations that affect the location of facilities
and public travel in the rights-of-way.
c.
The degree of disruption to surrounding
communities and businesses that will result from the use of that part
of the rights-of-way, including whether the issuance of a rights-of-way
permit or a temporary traffic control permit for the particular dates
and/or times requested would cause a conflict or interfere with an
exhibition, celebration, festival, or any other event.
5.
The area is environmentally sensitive
as defined by State statute or Federal law or is a historic district
defined by local ordinance.
6.
Any permit not granted within twenty-one
(21) days after application shall be deemed denied. The applicant
may refile for a permit without additional fees unless the failure
to act on the permit was the result of the applicant not submitting
a complete application or failing to provide information requested
by the Director or their designee.
[R.O. 1996 § 505.380; Ord. No. 4557 § 1, 7-20-2015]
A.
ROW-users performing routine maintenance
which does not require excavation or work in the rights-of-way, which
does not disrupt traffic, and which does not require more than two
(2) hours to complete, shall be exempt from the requirement of a rights-of-way
permit, provided they meet all other requirements for performance
such as return of the rights-of-way condition. Failure to meet the
other requirements for working within the rights-of-way under the
exemption shall result in no future exemptions and permits will be
required regardless of the time to perform the work.
B.
A ROW-user shall not be required to obtain
a rights-of-way permit or a temporary traffic control permit for temporary
traffic control, excavation or work which is necessary because of
an emergency, and that emergency is declared by a proper governmental
authority with jurisdiction over the emergency to be a disaster or
state of emergency under Federal, State or local law. In the event
that temporary traffic control, excavation or work is necessary during
a disaster or state of emergency, the ROW-user performing temporary
traffic control, excavation or work in the rights-of-way shall notify
the Public Works Department of the nature and scope of the temporary
traffic control, excavation or work to be performed in the rights-of-way,
along with the location of the temporary traffic control, excavation
or work, and the estimated time of the temporary traffic control,
excavation or work.
[R.O. 1996 § 505.390; Ord. No. 4557 § 1, 7-20-2015]
The ROW-user shall notify the office
of the Director upon completion of the temporary traffic control,
excavation or work authorized by the applicable rights-of-way permit
or temporary traffic control permit.
[R.O. 1996 § 505.400; Ord. No. 4557 § 1, 7-20-2015]
A rights-of-way permit and temporary
traffic control permit are required for emergency situations. If,
however, due to an emergency it is necessary for the ROW-user to immediately
perform temporary traffic control, excavation or work in the rights-of-way,
and it is impractical for the ROW-user to first get a rights-of-way
permit or a temporary traffic control permit, the temporary traffic
control, excavation or work may be performed, and the required permit
shall be obtained as soon as reasonably possible, but not later than
five (5) business days after the temporary traffic control, excavation
or work is begun. The ROW-user shall notify the City's Public Works
Department if emergency temporary traffic control, excavation or work
is necessary.
[R.O. 1996 § 505.410; Ord. No. 4557 § 1, 7-20-2015]
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 as defined in the City's Design and Construction
Manual.
B.
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. In addition, the ROW-user shall, in doing excavation or
work in connection with its facilities, avoid disrupting or interfering
with the lawful use of the streets, alleys, sidewalks or other public
lands of the City except as may be specifically authorized by a temporary
traffic control permit.
C.
All facilities of the ROW-user shall be
placed so that they do not interfere with the use of rights-of-way
and public lands. The City, through its Director, shall have the right
to consult and review the location, design and nature of the facility
prior to installation. To ensure that the right-of-way remains accessible
for public uses, to minimize visual obstruction of facilities, and
allow for adequate City maintenance of the right-of-way, a new utility
pole and any new ground mounted equipment associated with the new
utility pole shall not be installed within one hundred fifty (150)
feet of another utility pole or other ground mounted equipment on
the same side of the right-of-way. Should a ROW-user seek to replace
a utility pole, said replacement utility pole shall be sited within
ten (10) feet of the currently existing utility pole and shall not
be subject to the spacing requirements set forth in this Subsection.
The spacing requirement set forth in this Subsection may be waived
or altered by the Director upon the ROW-user establishing good cause
as to why said spacing requirement shall be waived or altered.
[Ord. No. 4834, 6-17-2019]
D.
The ROW-user shall not interfere with the
facilities and structures of the other ROW-users without their permission.
If and when the City requires or negotiates to have a ROW-user cease
using its existing poles and to relocate its facilities underground,
all other ROW-users using the same poles shall also relocate their
facilities underground at the same time. The cost of such relocation
shall be borne in accordance with this Article and the Commission
approved applicable tariff governing that ROW-user.
E.
All facilities and other appurtenances
laid, constructed and maintained by the ROW-user shall be laid, constructed
and maintained in accordance with acceptable engineering practice
and in full accord with any and all applicable engineering codes adopted
or approved by the City, the Code, the City's Design and Construction
Manual, applicable Statutes of the State of Missouri, and rules and
regulations of the FCC, the Commission, or any other local, State
or Federal agency having jurisdiction over the ROW-user.
F.
The ROW-user shall cooperate promptly and
fully with the City and take all reasonable measures necessary to
provide accurate and complete on-site information regarding the nature
and location of its facilities within the rights-of-way, both underground
and overhead, when requested by the City or its authorized agent for
a public improvement. Such location and identification shall be at
the sole expense of the ROW-user without any expense to the City,
its employees, agents, or authorized contractors.
G.
Unless otherwise agreed to by the City
and the ROW-user by license, agreement or permit, the City shall not
be liable for any damage to or loss of any of the ROW-users' facilities
within the rights-of-way unless the damage is the result of the sole
negligence, or willful, intentional, or malicious acts or omissions
of the City.
H.
No above-ground facility, cabinet or storage/housing
structure or fixture located on the rights-of-way shall exceed any
of the limits set forth in the Unified Development Code and this Article
without consent of the Director and review and approval of the City's
Planning and Zoning Commission for a determination of the impact of
such a facility, cabinet or storage/housing structure on surrounding
uses, including view and plantings and sight triangles and mitigation
of impact that may be accomplished if such a facility, cabinet or
storage/housing structure is allowed. No above-ground facility, cabinet
or storage/housing structure shall be placed on the rights-of-way
in such a way as to impede or prohibit direct access by another ROW-user
to its facilities or any sight triangles or in such a way as to impede
access and use for the disabled, handicapped or pedestrians and vehicles
in the normal use of the rights-of-way. Cabinets should be located
outside the ROW in private easements whenever possible. A suitable
reason must be presented to the Director for each cabinet location
to be considered for placement in the ROW. The reason must detail
why locations outside of the ROW are not possible.
[R.O. 1996 § 505.420; Ord. No. 4557 § 1, 7-20-2015]
A.
In the event that the ROW-user shall sell,
lease, assign, sublet or dispose of its facilities, or any portion
thereof, that are located in the rights-of-way, or any 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, the ROW-user shall notify the City
of the same. In such case, the buyer, transferee, lessee or assignee
shall be subject to all provisions of this Article, including the
requirement to register. This provision shall not apply to the sale
of property or equipment in the normal course of business or to the
sale or lease of facilities to reseller ROW-users. No notice to the
City shall be required for a transfer in trust, mortgage, or other
similar instrument, in whole or in part, to secure an indebtedness,
or for a pro forma transfer to a corporation, partnership, or other
entity controlling, controlled by or under common control with the
ROW-user.
B.
A ROW-user 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 ROW-user'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, the FCC or the Commission.
The ROW-user shall also provide the City, on at least a semiannual
basis, the identity of entities with which the ROW-user has entered
into an interconnection and/or resale agreement within the City. This
notice will not relieve the reseller service provider from its own
obligation to register and obtain any necessary franchise with the
City. Nothing in this Article shall prevent a facility based service
provider from providing to any reseller service provider the use of
the facility based service provider's facilities in the rights-of-way
as authorized by Federal or State law.
[R.O. 1996 § 505.430; Ord. No. 4557 § 1, 7-20-2015]
The Director may designate specific
utility corridors by assigning specific locations for each type of
facility that is currently, or that the Director expects will someday
be, located within the rights-of-way. All rights-of-way permits issued
by the Director shall indicate the proper location for the ROW-user's
facilities and standard detail as required in the City's Design and
Construction Manual. Specific locations shall be specified in the
City's Design and Construction Manual and can include reservation
of space for any planned or future anticipated uses of the City, in
its sole discretion.
[R.O. 1996 § 505.440; Ord. No. 4557 § 1, 7-20-2015]
If, in the preparation and planning
of a public improvement, the Director deems it appropriate for a conduit
to be constructed by the City along, across or under the rights-of-way,
the Director shall contact all appropriate ROW-users for their input
on the planning and design of such conduit. If a ROW-user desires
to construct, maintain or operate facilities along such rights-of-way
concurrently, the Director may allow the ROW-user to use such conduit
if the ROW-user agrees to contribute to the expense of such conduit.
When a ROW-user is installing conduit in a trench, the Director may
install conduit for the City at City's cost for the conduit. The City
shall not be responsible for reimbursing any costs of the ROW-user
in digging the trench that the City does not specifically ask for.
[R.O. 1996 § 505.450; Ord. No. 4557 § 1, 7-20-2015]
A.
Applicants may apply jointly for rights-of-way
permits to excavate the rights-of-way at the same time and place.
Applicants who apply jointly for a rights-of-way permit may share
in the payment of the rights-of-way permit fee. Applicants must agree
among themselves as to the portion each shall pay.
B.
The ROW-user shall participate in any joint
planning, construction and advance notification of excavation or work,
including coordination and consolidation of excavation or work as
required by the Director. In addition, the ROW-user shall cooperate
with other ROW-users and the City for the best, most efficient, most
aesthetic, and least obtrusive use of the rights-of-way.
[R.O. 1996 § 505.460; Ord. No. 4557 § 1, 7-20-2015]
A.
A ROW-user shall promptly relocate or adjust
any facilities located in the rights-of-way as directed by the City
for a public improvement. The ROW-user shall promptly remove, relocate
or adjust any facilities located in the rights-of-way as directed
by the City which create a threat to public safety. Such removal,
relocation or adjustment shall be performed by the ROW-user at the
ROW-user's sole expense without expense to the City, its employees,
agents, or authorized contractors and shall be specifically subject
to rules, regulations and schedules of the City pertaining to such.
The ROW-user shall proceed with the removal, relocation, or adjustment
of facilities with due diligence upon notice by the City to begin
removal, relocation, or adjustment.
B.
The ROW-user shall promptly relocate or
adjust any facilities located in private easements for the construction
of a public improvement at the cost of the ROW-user if:
1.
The City has condemned the private
easement or the City has purchased from the ROW-user the portion of
the private easement necessary for the public improvement; and
2.
The City has compensated the ROW-user,
through the condemnation, purchase process, or other means of compensation,
for the cost of relocation of the ROW-user's facilities.
C.
As soon as City prepared working drawings
are available for public improvements that will require the ROW-user
to relocate or adjust its facilities, the City shall provide the ROW-user
with written notice of required relocations or adjustments, the anticipated
bid letting date of the public improvement, and notice of the deadline
for completion of the relocations or adjustments. The ROW-user shall
respond with any conflicts and a proposed construction schedule within
thirty (30) days, subject to approval by the Director.
D.
Following delivery of final design plans
for such public improvements, the ROW-user shall relocate or adjust
its facilities in accordance with the schedule set by the Director,
provided the project is not delayed by adverse weather conditions
and other factors beyond the control of the ROW-user. The ROW-user
shall certify to the City, in writing, that its facilities have been
relocated or adjusted in accordance with project plans provided by
the City so as to allow the City, and its contractors, to proceed
with the public improvement.
E.
If any facilities are not relocated in
accordance with this Section, the City or its contractors may relocate
the facilities. The ROW-user and its surety shall be liable to the
City for any and all costs incurred by the City should the City be
required to have the facilities relocated, including any increase
in cost associated with the City's improvements that are delayed or
could be delayed by failure to move the facilities.
F.
In the event the ROW-user is required to
move its facilities in accordance with this Section, any ordinary
rights-of-way permit fee shall be waived.
G.
It is the intent of this Section for both
the City and the ROW-user to cooperate with one another so that the
need for facility relocation is minimized and, when required and feasible,
relocations may be completed prior to receipt of bids by the City
for a public improvement.
[R.O. 1996 § 505.470; Ord. No. 4557 § 1, 7-20-2015]
A.
A ROW-user owning abandoned facilities
in the rights-of-way must notify the City of its intent to abandon
the facilities and must either:
1.
Remove its facilities and replace
or restore any damage or disturbance caused by the removal at its
own expense. The Director may allow underground facilities, or portions
thereof, to remain in place if the Director determines that it is
in the best interest of public safety to do so. At such time, the
City may take ownership and responsibility of such abandoned facilities
left in place at its discretion;
2.
Provide information satisfactory
to the City that the ROW-user's obligations for its facilities in
the rights-of-way have been lawfully assumed by another authorized
ROW-user; or
3.
Submit to the City a proposal and
instruments for transferring ownership of its facilities to the City.
If the ROW-user proceeds under this Subsection, the City may, at its
option, purchase the equipment, require the ROW-user, at its own expense,
to remove it, or require the ROW-user to post a bond in an amount
sufficient to reimburse the City for reasonable anticipated costs
to be incurred to remove the facilities, except as otherwise provided
herein.
B.
If the City discovers abandoned facilities
in its rights-of-way and the owner of the abandoned facilities fails
to respond within thirty (30) days to a written notice sent by the
City stating that the City considers the facilities abandoned, or
the City is unable to locate the owner of the abandoned facilities
after reasonable attempts, the City shall deem the facilities to be
abandoned, unless the City receives confirmation that the ROW-user
intends to use the facilities. Abandoned facilities are deemed to
be a nuisance. The City may exercise any remedies or rights it has
at law or in equity, including, but not limited to:
[R.O. 1996 § 505.480; Ord. No. 4557 § 1, 7-20-2015]
A.
If the City vacates a rights-of-way which
contains the facilities of a ROW-user, the vacation requires the relocation
of facilities, and:
1.
Vacation proceedings are initiated
by the ROW-user, then the ROW-user must pay the relocation costs.
2.
Vacation proceedings are initiated
by the City, then the ROW-user must pay the relocation costs unless
otherwise agreed to by the City and the ROW-user.
3.
Vacation proceedings are initiated
by a person other than the ROW-user or the City, then such other person
must pay the relocation costs, unless otherwise agreed to.
[R.O. 1996 § 505.490; Ord. No. 4557 § 1, 7-20-2015]
A.
All traffic control, permanent and temporary,
shall be properly installed and maintained at the ROW-user's expense.
All traffic control materials and methods shall be in conformance
with the latest edition of the Manual on Uniform Traffic Control Devices.
B.
The ROW-user shall notify the City no less
than ten (10) working days in advance of any temporary traffic control
that results in the full closure of any direction of vehicle travel
along any street. Any other person doing temporary traffic control
that will disrupt vehicular or pedestrian traffic shall notify the
City no less than two (2) days in advance of any temporary traffic
control. Except in the event of an emergency as reasonably determined
by the ROW-user and Director, no such closure shall take place without
notice and prior authorization from the City.
C.
Coordination:
1.
An applicant may apply jointly for
a rights-of-way permit and temporary traffic control permit to perform
temporary traffic control, excavate or work in the rights-of-way at
the same time and place.
2.
Applicants may apply jointly for
temporary traffic control permit for temporary traffic control at
the same time and place. Applicants who apply jointly for a temporary
traffic control permit may share in the payment of the temporary traffic
control permit fee. Applicants must agree among themselves as to the
portion each shall pay.
3.
The ROW-user shall participate in
any joint planning, construction and advance notification of temporary
traffic control, including coordination and consolidation of temporary
traffic control as required by the Director. In addition, the ROW-user
shall cooperate with other ROW-users and the City for the best, most
efficient, most aesthetic, and least obtrusive use of the rights-of-way.
D.
A traffic control plan shall be submitted
for approval by the Director. This may include a detour traffic plan
if the Director so requires. All safety and traffic control measures
must be implemented according to any approved traffic control plan
required by the temporary traffic control permit.
[R.O. 1996 § 505.510; Ord. No. 4557 § 1, 7-20-2015]
A.
Except as provided in this Chapter and
other City Code, the following shall regulate and control excavation
within the ROW.
1.
Prior to the commencement of placement
of facilities, or repair of existing facilities, the ROW-user shall
provide at least ten (10) days' written notice to abutting landowners
in a form approved by the Director and during the time of any excavation
or construction of facilities provide to abutting landowners a telephone
number of a person to whom the landowner may speak about complaints
or conditions of the ROW adjacent to the landowner's property or interference
with enjoyment of their land.
2.
All ROW-users shall locate existing
facilities before beginning any work. The ROW-user shall identify
and locate any underground facilities in conformance with the "Missouri
One Call" system.
3.
The ROW-user shall be liable for
any damages to facilities due to excavation or work performed prior
to obtaining the location of all facilities in the area in which the
excavation or work is to be performed, or for any damage to facilities
that have been properly identified prior to excavation or work. The
ROW-user shall not make or attempt to make repairs, relocation or
replacement of damaged or disturbed facilities without the approval
of the owner of the facilities.
4.
Whenever there is excavation or work
by the ROW-user, the ROW-user shall be responsible for acquiring all
necessary temporary traffic control permits and providing adequate
temporary traffic control to the surrounding area as provided in this
Article. In the event the excavation or work is not completed in a
reasonable period of time, the ROW-user may be liable for actual damages
to the City for delay caused by the ROW-user pursuant.
5.
The ROW-user responsible for the
excavation or work who leaves any debris in the rights-of-way shall
be responsible for providing all necessary temporary traffic control
and safety protection in accordance with the temporary traffic control
permit and any applicable Federal or State requirement. The ROW-user
shall also be responsible for removing said debris from the rights-of-way.
If the ROW-user fails to comply with the temporary traffic control
permit or fails to remove debris from the rights-of-way, the ROW-user
shall be responsible for damages to the City, or its contractors,
resulting from said failures and shall indemnify the City and its
contractors as provided in this Article.
6.
In the event the ROW-user severely
disturbs or damages the root structure of any tree or landscaping
in the rights-of-way to the detriment of the health and safety of
the tree or plantings, the ROW-user shall be required to remove and
replace the tree or plantings at the ROW-user's cost. Further, in
review of the ROW-user's plan, the Director, in their discretion,
may require the ROW-user to directionally bore around any tree in
the rights-of-way.
7.
All excavation or work shall have
a metal or plastic marker, of a color, size, and shape approved by
the Director, inserted into the restored pavement which shall identify
the ROW-user.
8.
Upon completion of all rights-of-way
restoration activities, the ROW-user shall notify the City's Public
Works Department, which shall then schedule a closeout inspection.
Damage to water, sewer, storm or road assets (private or public) shall
be repaired. The contractor will be responsible for any claims as
the result of the contractor or ROW-user's excavation, installation
or repair to any of its facilities in the ROW, including but not limited
to claims for damage to landscaping, trees, laterals, pipes, driveways,
sidewalks or property in which rights are protected by Missouri law.
The ROW-user or its contractor shall be responsible for any and all
damage to water, storm and road asset (public or private).
[R.O. 1996 § 505.520; Ord. No. 4557 § 1, 7-20-2015]
All temporary traffic control, excavation
or work performed in the rights-of-way shall be done in conformance
with the City's Design and Construction Manual and the MUTCD.
[R.O. 1996 § 505.530; Ord. No. 4557 § 1, 7-20-2015]
A.
After any temporary traffic control, excavation
or work, the ROW-user shall, at its expense, restore all portions
of the rights-of-way to the same condition or better condition than
it was prior to the temporary traffic control, excavation or work.
B.
If excavation or work cannot be back-filled
immediately and is left unattended, the ROW-user shall securely and
adequately cover and mark the unfilled excavation or work. The ROW-user
has sole responsibility for maintaining proper temporary traffic control,
barriers, safety fencing, signage, and/or lights as required, from
the time of the opening of the excavation or work until the excavation
or work is surfaced and opened for travel.
C.
In addition to repairing its own street
cuts, the ROW-user must restore any area within five (5) feet of the
new street cut that has previously been excavated by any entity, including
the paving and its aggregate foundations.
D.
All earth, materials, sidewalks, paving,
crossing, utilities, public improvement 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 Director. However, a ROW-user shall not make or
attempt to make repairs, relocation or replacement of damaged or disturbed
facilities without the approval of the owner of the facilities.
1.
The Director has the authority to
inspect the repair or replacement of the damage, and if necessary,
to require the ROW-user to do additional and necessary excavation
or work. Notice of the unsatisfactory restoration and the deficiencies
found will be provided to the ROW-user and a reasonable time not to
exceed fifteen (15) days will be provided to allow for the deficiencies
to be corrected.
2.
Any deficiencies not corrected shall
be considered a failure to restore and the City shall proceed according
to this Article. Upon determination by the Director that the failure
to repair or replace creates a threat to public safety, all such repair
or replacement shall be corrected within twenty-four (24) hours of
notice from the City, or the Director may direct the City to make
such repair or replacement at the ROW-user's expense.
[R.O. 1996 § 505.540; Ord. No. 4557 § 1, 7-20-2015]
A.
If the ROW-user fails to restore the rights-of-way
in the manner and to the condition required by the Director, or fails
to satisfactorily and timely complete all restoration, the City may,
at its option, serve written notice upon the ROW-user and its surety
that, unless within ten (10) days after serving of such notice, a
satisfactory arrangement is made for the proper restoration of the
rights-of-way, the City shall immediately serve notice of failure
to comply upon the surety and the ROW-user, and the surety shall have
the right to arrange for and complete the restoration excavation or
work; provided, however, that if the surety does not commence performance
thereof within fourteen (14) days from the date of notice, the City
may perform its own restoration excavation or work and prosecute same
to completion, by contract or otherwise.
1.
Upon determination by the Director
that the failure to repair, replace or restore creates a threat to
public safety, all such repair or replacement shall be corrected within
twenty-four (24) hours of notice from the City, or the City will perform
its own restoration excavation or work and prosecute same to completion,
by contract or otherwise.
2.
Upon determination by the Director
that the failure to repair, replace or restore creates an immediate
threat to public safety, all such repair or replacement shall be corrected
within one (1) hour of notice from the City, or the City will perform
its own restoration excavation or work and prosecute same to completion,
by contract or otherwise.
3.
The ROW-user and its surety shall
be liable to the City for its actual costs of such restoration, including
the value of any time or overtime incurred through the labor of City
employees, the value of the use of City equipment, and the cost of
City materials used in the restoration project.
[R.O. 1996 § 505.550; Ord. No. 4557 § 1, 7-20-2015]
A.
In restoring the rights-of-way, including
but not be limited to plant coverings, landscaping, grading, artificial
surface, the ROW-user shall guarantee its excavation or work on artificial
surfaces and settlement and shall maintain such restoration and work
result for a period of forty-eight (48) months, and plant coverings
and landscaping and similar conditions shall be guaranteed and maintained
for a period of twenty-four (24) months, or for any type of repair,
replacement or condition resulting from the excavation the maximum
period of time allowed by law, whichever is greater, following its
completion and provide a bond to secure such guarantee at the request
of the Director.
1.
During said guarantee period the
ROW-user shall, upon notification from the Director, correct all restoration
excavation or work to the extent necessary, using any method as required
by the Director.
2.
Said excavation or work shall be
completed within a reasonable time, not to exceed thirty (30) calendar
days, of the receipt of notice from the Director.
3.
In the event the ROW-user is required
to perform new restoration pursuant to the foregoing guarantee, the
Director shall have the authority to extend the guarantee period for
such new restoration for up to an additional forty-eight (48) months,
or other greater period allowed by law, from the date of the new restoration,
if the Director determines there was action by the ROW-user not to
comply with the conditions of the rights-of-way permit and any restoration
requirements.
B.
When any required corrective actions have
been completed and inspected to the Director's satisfaction, the guarantee
period will begin.
C.
The guarantee period shall be applicable
to failure of the pavement surface as well as failure below the pavement
surface.
[R.O. 1996 § 505.560; Ord. No. 4557 § 1, 7-20-2015]
The ROW-user shall submit to the
Director in a form approved by the Director electronic shape files
showing the location of its facilities within fifteen (15) days of
registering or for new facilities within thirty (30) days of inspection
by the Director. Such maps shall be updated every six (6) months beginning
on January 1 of each year.
[R.O. 1996 § 505.570; Ord. No. 4557 § 1, 7-20-2015]
A.
Whenever a person has been denied a rights-of-way
permit or a temporary traffic control permit, had its rights-of-way
permit or temporary traffic control permit revoked, believes that
the fees imposed on the person by the City do not conform to the requirements
of Section 67.1840, RSMo., relating to the amount of fees, asserts
any issues related to the use of the rights-of-way, or deems themselves
otherwise aggrieved by any decision or action taken by the City or
the Director under this Article, the person may file an appeal to
the City Administrator or their designee by filing written notice
of such appeal with the City Clerk's office within ten (10) calendar
days of the date of notice of such decision or action.
1.
The City Administrator or their designee
shall schedule an informal meeting with the aggrieved person and shall
have the power to overrule such decision or action taken by the City
or the Director, may extend the time limit of such decision or action,
or may grant exceptions to, or waive requirements of, or grant a variance
from the specific provisions of this Article.
2.
The City Administrator or their designee
shall issue their decision in writing. After the decision of the City
Administrator or their designee is rendered, the aggrieved person
may appeal the decision of the City Administrator or their designee
to the Public Works Committee by filing written notice of such appeal
with the City Clerk's office within ten (10) calendar days of the
date of notice of such decision or action.
[R.O. 1996 § 505.580; Ord. No. 4557 § 1, 7-20-2015]
A.
Such appeals to the Public Works Committee as provided for in Section 505.570 hereof shall be heard by the Public Works Committee on the record with evidence and testimony as a contested hearing pursuant to Chapter 536, RSMo.
1.
The Public Works Committee shall
deliver a transcript of the written record and exhibits along with
its written recommendation for action to the City Council.
2.
The City Council may overrule such
decision or action taken by the City or the Director, may extend the
time limit of such decision or action, or may grant exceptions to,
or waive requirements of, or grant a variance from the specific provisions
of this Article.
3.
Any decision by the City Council
affirming the denial, revocation, fee imposition or dispute resolution
shall be in writing and supported by written findings establishing
the reasonableness of the decision.
B.
Pending a decision by the City Council,
the order of the Director shall be stayed, unless the Director determines
that such action will pose a threat to public safety or the integrity
of the public infrastructure.
C.
In the event the City Council affirms the
prior decision of the City or the Director, in addition to all other
remedies and if both parties agree, the aggrieved person shall have
the right to have the matter resolved by mediation or binding arbitration.
1.
Non-binding arbitration shall be
before an arbitrator agreed to by both the City and the aggrieved
person.
2.
The costs and fees of a single arbitrator
shall be borne equally by the City and the aggrieved person.
3.
If the parties cannot agree on an
arbitrator, the matter shall be resolved by a three-person arbitration
panel consisting of one (1) arbitrator selected by the City, one (1)
arbitrator selected by the aggrieved person, and one (1) arbitrator
selected by the other two (2) arbitrators. In the event that a three-person
arbitrator panel is necessary, each party shall bear the expense of
its own arbitrator and shall jointly and equally bear with the other
party the expense of the third arbitrator and of the arbitration.
4.
Each party to the arbitration shall
pay its own costs, disbursements and attorney fees.
5.
In no event shall litigation of any
kind be filed until the City and ROW-user have submitted to mediation,
with the mediator being selected and paid for in the same manner as
an arbitrator.
[R.O. 1996 § 505.590; Ord. No. 4557 § 1, 7-20-2015]
A.
Unless a ROW-user has twenty-five million
dollars ($25,000,000.00) in net assets and does not have a history
of non-compliance, or permitting non-compliance, within the City,
then the ROW-user shall file with the City evidence of liability insurance
with an insurance company licensed to do business in Missouri.
1.
The ROW-user shall provide all information
to the City necessary to determine the amount of net assets of the
ROW-user.
2.
The amount of insurance shall be
in amounts sufficient to protect the City against all liabilities
not protected by the State of Missouri's sovereign immunity statute.
The insurance will protect the City from and against all claims by
any person whatsoever for loss or damage from personal injury, bodily
injury, death, or property damage arising out of or alleged to have
arisen out of the negligent or willful acts or omissions of the ROW-user.
3.
If the ROW-user 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.
4.
A copy of the liability insurance
certificate must be on file with the City Clerk.
B.
No liability insurance will be required
of any residential property owner excavating or working in the rights-of-way
adjacent to their residence who does not utilize a contractor to perform
the excavation or work and who does not require a temporary traffic
control permit. However, said residential property owner shall be
required to demonstrate proof of a homeowner's policy with coverage
and limits acceptable to the Director.
C.
For purposes of this Section, "history
of non-compliance, or permitting non-compliance, within the City,"
shall mean the ROW-user, or any persons acting on the behalf of the
ROW-user, including contractors or subcontractors, has failed to return
the public rights-of-way to its previous condition under a previous
rights-of-way permit or temporary traffic control permit.
[R.O. 1996 § 505.600; Ord. No. 4557 § 1, 7-20-2015]
A.
If a ROW-user has twenty-five million dollars
($25,000,000.00) in net assets and does not have a history of non-compliance,
or permitting non-compliance, within the City, then the ROW-user shall
not be required to maintain a performance or maintenance bond.
1.
The ROW-user shall provide all information
to the City necessary to determine the amount of net assets of the
ROW-user.
2.
For purposes of this Section, "history
of non-compliance, or permitting non-compliance, within the City,"
shall mean the ROW-user, or any persons acting on the behalf of the
ROW-user, including contractors or subcontractors, has failed to return
the public rights-of-way to its previous condition under a previous
rights-of-way permit or temporary traffic control permit.
B.
If it is determined pursuant to Subsection (A) of this Section that a ROW-user does not have twenty-five million dollars ($25,000,000.00) in net assets or does have a history of non-compliance, or permitting non-compliance, within the City, then the ROW-user shall:
1.
Maintain a performance bond in a
form approved by the City Attorney. The amount of the bond will be
ten thousand dollars ($10,000.00) or the value of the restoration,
whichever is greater, as determined by the Director, for a term consistent
with the term of the applicable rights-of-way permit or temporary
traffic control permit, conditioned upon the ROW-user's faithful performance
of the provisions, terms and conditions conferred by this Article.
2.
Maintain a maintenance bond in a
form approved by the City Attorney. The amount of the bond will be
ten thousand dollars ($10,000.00) or the value of the restoration,
whichever is greater, as determined by the Director, for a term consistent
with the term of the applicable rights-of-way permit or temporary
traffic control permit plus four (4) additional years, conditioned
upon the ROW-user's faithful performance of the provisions, terms
and conditions conferred by this Article.
C.
In the event the City shall exercise its
right to revoke the rights-of-way permit or the temporary traffic
control permit as permitted herein, then the City shall be entitled
to recover under the terms of said bonds the full amount of any loss
occasioned. A copy of the maintenance and performance bonds must be
on file with the City Clerk. No maintenance or performance bond will
be required of any residential property owner excavating or working
in the rights-of-way adjacent to their residence, who does not utilize
a contractor to perform the excavation or work and who does not require
a temporary traffic control permit.
[R.O. 1996 § 505.610; Ord. No. 4557 § 1, 7-20-2015]
A.
Any person operating under the provisions
of this Article or performing any temporary traffic control, excavation
or work in the rights-of-way shall fully indemnify, release, defend
and hold harmless the City, officers, employees and agents of the
City when acting in their capacity as municipal officials, employees,
elected officials, attorneys, and agents, from and against any and
all claims, demands, suits, proceedings, and actions, liability and
judgment by other persons for damages, losses, costs, and expenses,
including attorney fees, to the extent caused by acts or omissions
of the person, or its agents, contractors, or subcontractors, in the
performance of the permitted temporary traffic control, excavation
or work. In no event shall the requirements of this Article and more
specifically any provision dealing with indemnification be construed
as a waiver of any sovereign or other immunity available to the City,
its offers, employees or agents.
B.
Nothing herein shall be deemed to prevent
the City, or any agent, from participating in the defense of any litigation
by their own counsel at their own expense. Such participation shall
not under any circumstances relieve the person from its duty to defend
against liability or its duty to pay any judgment entered against
the City, or its agents.
C.
All ROW-users shall be responsible for
promptly correcting acts or omissions by any contractor or subcontractor
performing permitted temporary traffic control, excavation or work
for such ROW-user hereunder.
[R.O. 1996 § 505.620; Ord. No. 4557 § 1, 7-20-2015]
Any person operating under the provisions
of this Article or performing any temporary traffic control, excavation
or work in the rights-of-way shall fully indemnify, release, defend
and hold harmless the City and agents of the City when acting in their
capacity as municipal officials, employees, elected officials, attorneys,
contractors, and agents, from and against any and all claims, demands,
suits, proceedings, and actions, liability and judgment by other persons
for contractual or economic losses, damages, losses, costs, and expenses,
including attorney fees, to the extent caused by failure of a ROW-user,
or its agents, contractors, or subcontractors, to relocate or adjust
its facilities pursuant to the provisions of this Article.
[R.O. 1996 § 505.630; Ord. No. 4557 § 1, 7-20-2015]
A.
Any person operating under the provisions
of this Article or performing any excavation or work in the rights-of-way
shall be liable for any damages to facilities due to excavation or
work performed by the person, including damage to underground facilities
that have been properly identified prior to commencement of excavation
or work.
B.
Any person operating under the provisions
of this Article or performing any excavation or work in the rights-of-way
shall fully indemnify, release, defend and hold harmless the City
and agents of the City when acting in their capacity as municipal
officials, employees, elected officials, attorneys, contractors, and
agents, from and against any and all claims, demands, suits, proceedings,
and actions, liability and judgment by other persons for damages,
losses, costs, and expenses, including attorney fees, associated with
damage to the facilities of other ROW-users by a person, or its agents,
contractors, or subcontractors.
[R.O. 1996 § 505.640; Ord. No. 4557 § 1, 7-20-2015]
A.
Any ROW-user may satisfy the insurance,
bonding, and indemnification provisions of this Article through a
valid franchise agreement with the City. Any requirements thus satisfied
shall be indicated on the ROW-user's registration and shall not be
required for each rights-of-way permit and temporary traffic control
permit.
B.
This Section shall not apply to an applicant
acting on behalf of a ROW-user, unless the applicant is listed as
an additional insured on the ROW-user's insurance policy and is covered
by the surety. The applicant must submit evidence of the satisfaction
of these requirements prior to issuance of a rights-of-way permit
or a temporary traffic control permit.
[R.O. 1996 § 505.650; Ord. No. 4557 § 1, 7-20-2015]
A.
No person shall perform temporary traffic
control, excavate or work in the rights-of-way in violation of this
Article. Any violation of this Article shall result in the immediate
issuance of a citation to the person and enforcement action pursuant
to City Code and State law. In addition, a stop-work order may be
issued by the Director which shall be complied with. Failure to comply
with such stop-work order may be enforced through any legal means
available to the City at the City's option, including daily penalties
as provided in this Article.
B.
Except as provided in Subsection (A) of this Section, if the Director determines that a ROW-user has committed a violation of this Article, any law or ordinance, or a condition placed on the rights-of-way permit or the temporary traffic control permit, the Director shall make a written demand upon the ROW-user to remedy such violation, which may include the issuance of a stop work order. The demand shall state that the continued violation may be cause for revocation of the rights-of-way permit or the temporary traffic control permit as provided for herein, or legal action if applicable.
C.
A violation will allow the Director, at
their discretion, to place additional or revised conditions on the
rights-of-way permit or the temporary traffic control permit, specifically
related to the manner in which the violation is cured by the ROW-user.
1.
Within fourteen (14) calendar days
of receiving notification of the violation, the ROW-user shall contact
the Director with a plan, acceptable to the Director, for correction
of the violation.
2.
Upon determination by the Director
that the violation creates a threat to public safety, the ROW-user
shall within twenty-four (24) hours of notice from the City contact
the Director with a plan, acceptable to the Director, for correction
of the violation.
3.
Upon determination by the Director
that the violation creates an immediate threat to public safety, the
ROW-user shall within one (1) hour of notice from the City contact
the Director with a plan, acceptable to the Director, for correction
of the violation.
4.
A ROW-user's failure to contact the
Director, ROW-users failure to submit an acceptable plan, or ROW-user's
failure to reasonably implement the approved plan shall be cause for
immediate revocation of the rights-of-way permit or the temporary
traffic control permit.
[R.O. 1996 § 505.660; Ord. No. 4557 § 1, 7-20-2015]
A.
The City may, after reasonable notice and
an opportunity to cure, revoke a rights-of-way permit or a temporary
traffic control permit granted to a ROW-user, without a fee refund,
if one (1) or more of the following occurs:
1.
A material violation of a provision
of the rights-of-way permit or temporary traffic control permit;
2.
An evasion or attempt to evade any
material provision of the rights-of-way permit or temporary traffic
control permit, or the perpetration or attempt to perpetrate any fraud
or deceit upon the political subdivision or its citizens;
3.
A material misrepresentation of fact
in the rights-of-way permit or temporary traffic control permit application;
4.
A failure to complete temporary traffic
control, excavation or work by the date specified in the associated
rights-of-way permit or temporary traffic control permit, unless a
rights-of-way permit or temporary traffic control permit extension
is obtained or unless the failure to complete the temporary traffic
control, excavation or work is due to reasons beyond the ROW-user's
control;
5.
A failure to correct, within the
time specified by the City, temporary traffic control, excavation
or work that does not conform to applicable engineering standards,
specifications, national safety codes, industry construction standards,
or applicable City Code provisions or safety codes that are no more
stringent than national safety codes or provisions, upon inspection
and notification by the City of the faulty condition; and
6.
A failure to comply with a stop work
order.
B.
If a rights-of-way permit or temporary
traffic control permit is revoked, the ROW-user shall also reimburse
the City for the City's reasonable costs, including administrative
costs, restoration costs and the costs of collection and reasonable
attorneys' fees incurred in connection with such revocation.
[R.O. 1996 § 505.670; Ord. No. 4557 § 1, 7-20-2015]
Any person violating any provision
of this Article is guilty of a public offense, and upon conviction
thereof shall be fined in a sum of not less than two hundred dollars
($200.00) nor more than five hundred dollars ($500.00) in addition
to any amount necessary to restore the ROW or repair City facilities.
Every day that this Article is violated shall constitute a separate
offense. The City shall have the authority to maintain civil suits
or actions in any court of competent jurisdiction for the purpose
of enforcing the provisions of this Article. In addition to any other
remedies, the City Attorney may institute injunction, mandamus or
other appropriate actions or proceedings to prevent violations of
this Article.
[R.O. 1996 § 505.680; Ord. No. 4557 § 1, 7-20-2015]
The City's failure to enforce or
remedy any non-compliance of the terms and conditions of this Article
or of any rights-of-way permit or temporary traffic control permit
granted hereunder shall not constitute a waiver of the City's rights
nor a waiver of any person's obligation as herein provided.
[R.O. 1996 § 505.690; Ord. No. 4557 § 1, 7-20-2015]
A.
This Article shall be construed in a manner
consistent with all applicable and valid Federal, State, and local
laws. Notwithstanding any other provisions of this Article to the
contrary, the construction, operation and maintenance of the ROW-user's
facilities shall be in accordance with all laws and regulations of
the United States, the State and any political subdivision thereof,
or any administrative agency thereof, having jurisdiction.
B.
In addition, the ROW-user shall meet or
exceed the most stringent technical standards set by regulatory bodies,
including the City, now or hereafter having jurisdiction.
C.
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. The ROW-user shall
comply with all applicable laws and ordinances enacted pursuant to
that power.
D.
Finally, failure of the ROW-user to comply
with any applicable law or regulation may result in a forfeiture of
any permit, registration or authorization granted in accordance with
this Article.
[R.O. 1996 § 505.700; Ord. No. 4557 § 1, 7-20-2015]
A.
In addition to any rights specifically
reserved to the City by this Article, the City reserves unto itself
every right and power which is required to be reserved by a provision
of any ordinance under any registration, permit or other authorization
granted under this Article.
B.
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 as follows:
C.
To be effective, such waiver shall be evidenced
by a statement, in writing, signed by a duly authorized representative
of the City. Further, the City hereby reserves to itself the right
to intervene in any suit, action or proceeding involving the provisions
herein.
D.
Notwithstanding anything to the contrary
set forth herein, the provisions of this Article shall not infringe
upon the rights of any person pursuant to any applicable State or
Federal statutes, including, but not limited to, the right to occupy
the rights-of-way.