[Ord. No. 490, 7-20-2016]
A. It shall be the policy of the City to authorize use of the rights-of-way
in a manner that minimizes interference to the public use and minimizes
the burden on the rights-of-way physically and aesthetically to the
full extent permitted by law. Any use of the rights-of-way by any
person shall be subject to the terms and conditions hereof, in addition
to all applicable Federal, State or local requirements, and nothing
herein shall be enforced or interpreted to contravene any superseding
law, including but not limited to Section 67.1830, RSMo., et seq.,
to the extent applicable to any given circumstance.
B. The right granted to a person to use the rights-of-way is limited
to the use that the person has filed with the City and approved in
accordance with this Chapter. These rights shall grant non-exclusive
use only to that person except where otherwise provided herein or
when expressly authorized by the City.
[Ord. No. 490, 7-20-2016]
The following definitions shall apply to this Chapter, except
that where the definitions set forth in Section 67.1830, RSMo. (Supp.
2001), as may be amended, are required by law to apply to specific
uses of the rights-of-way, such definitions shall apply to such circumstances:
ABANDONED FACILITIES
Those facilities owned by a ROW user that are not in use
or cannot be utilized by the owner in the future.
ADMINISTRATIVE FEE
That fee charged by the City to administer all aspects of
rights-of-way management to recover its cost of this management.
APPLICANT
Any person required to apply for a rights-of-way permit.
CITY
The City of Lake Waukomis, Missouri, a municipal corporation
and any duly authorized representative.
CITY SPECIFICATIONS
The City of Lake Waukomis design and constructions standards adopted pursuant to Section
520.020, filed with the City Clerk and as may be amended from time to time by the authority of the Mayor establishing such specifications and procedures consistent with the requirements and purposes of this Chapter.
CONSTRUCT
Includes construct, install, erect, build, affix or otherwise
place any fixed structure or object, in, on, under, through or above
the rights-of-way.
EMBEDDED
To surround tightly or incorporate.
EMERGENCY
Any incident that requires immediate intrusion and work within
the rights-of-way to restore service to a user.
EXCAVATE
Any removal of the surface or subsurface earth or boring
or tunneling activity within the public rights-of-way.
FACILITY
All/any lines, pipes, irrigation systems, wires, cables,
conduit facilities, poles, towers, vaults, pedestals, boxes, or other
equipment owned or controlled by an entity other than the City.
FCC
The Federal Communications Commission.
FRANCHISE AGREEMENT
An agreement between the City and an entity which exists
prior to January 1, 2016, and which expressly provides said entity
the right to use the City's rights-of-way in a manner which,
but for said agreement would require the entity to obtain a right-of-way
permit pursuant to this Chapter.
GOVERNING BODY
The Mayor and the Board of Aldermen of the City of Lake Waukomis,
Missouri.
OPERATIONS MANAGER
Where mentioned, shall include the Operations Manager, Building
Inspector or any person authorized by him.
PAVEMENT
The improved surface of the public way with concrete, asphalt,
aggregate or other treated materials.
PERSON
An individual, person or body natural or corporate.
PSC
The Missouri Public Service Commission.
PUBLIC EASEMENT
Any easement for utilities, access, or other use dedicated
to the City or in the name of the City irrespective of whether the
easement is held in trust by the City for private and public users
and regardless of whether private utilities or others in addition
to or other than the City are actually using the easements.
PUBLIC LANDS
Any real property owned by the City not used as rights-of-way
or considered to be rights-of-way.
REPAIR
The temporary work necessary to make the rights-of-way usable
for the public.
RESELLER SERVICE PROVIDER
A person 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.
RESTORATION
Returning the rights-of-way surface to its original condition,
or better.
RIGHTS-OF-WAY or ROW
The area on, below or above a public roadway, highway, street
or alleyway in which the City has an ownership interest, and including
such adjacent area of such public ways within such ownership interest
as made available by the City for rights-of-way use herein, but not
including:
1.
Easements obtained by utilities or private easements in platted
subdivisions or tracts;
2.
Railroad rights-of-way and ground utilized or acquired for railroad
facilities; or
3.
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.
RIGHTS-OF-WAY PERMIT
The authorization to make excavations or perform work for
the construction, installation, repair or maintenance of any type
of facility within the rights-of-way.
RIGHTS-OF-WAY USER or ROW USER
Such persons and entities maintaining, constructing or installing
facilities in the public rights-of-way of the City unless otherwise
expressly exempted by law. The term shall not include the City; provided
that the City shall nevertheless comply with all such requirements
applicable to ROW users to the extent such compliance is otherwise
required by State or Federal law.
SERVICE
That function provided to property adjoining the public rights-of-way
from a service provider.
WORK
1.
Construction, alteration, maintenance, installation, storage,
or location of facilities installed below, on or above ground in the
public rights-of-way, other than excavation, that also:
a.
Causes or threatens to cause any obstruction or interference
to any vehicular or pedestrian traffic or traffic lane in the rights-of-way;
b.
Involves temporary or permanent storage of materials or equipment
on rights- of-way;
c.
Causes or reasonably may cause damage to any public improvement
within the rights-of-way; or
d.
Causes removal, replacement or alteration to any safety feature
or requirement within the rights-of-way, including but not limited
to removal of manhole covers, altering lighting, traffic signage or
signals, placement or removal of traffic barricades, etc.
2.
Work shall not include routine or other maintenance on poles, boxes, or other facilities that does not result in one (1) or more of the circumstances described in Subsection
(1)(a) through
(d) herein.
[Ord. No. 490, 7-20-2016]
The Operations Manager is the principal City Official responsible
for administration of rights-of-way permits for work and excavations
made in the rights-of-way. The Mayor may act in the absence of the
Operations Manager.
[Ord. No. 490, 7-20-2016]
A. Agreement Required. Except when otherwise authorized
by applicable law, no ROW user may construct, maintain, own, control,
or use facilities in the rights-of-way without a franchise or ROW
agreement with the City as provided herein. All such franchises and
agreements shall be approved by ordinance of the Governing Body on
a non-discriminatory basis, provided that the applicant is in compliance
with all applicable requirements. Such franchises and agreements shall
be deemed to incorporate the terms of this Chapter and other applicable
laws of the City, except as may be expressly stated in such agreements
and franchises. Reseller service providers shall not be required to
obtain a franchise or agreement but shall be required to register
with the City prior to providing service on forms provided by the
City.
1.
Franchise. A franchise shall include all franchise
agreements which currently exist and/or into which the City may enter
in the future, or shall be required from the City in conformance with
all applicable franchise procedures for any ROW user seeking to use
the rights-of-way for purposes of providing or distribution of electricity,
gas, water, steam, lighting, or sewer public utility service in the
City, except where otherwise provided by law. Such franchise may be
granted only after satisfaction of all applicable procedural or substantive
requirements established by City ordinances or other law.
2.
ROW agreement. A ROW agreement with the City shall be required for all ROW users not set forth in Subsection
(A)(1), irrespective of any State licensing, franchise or certificate that may also be held by the ROW user, except as otherwise required herein or by law. Such agreements shall conform to all applicable law, but shall not be subject to procedures applicable to franchises, and the City may, if appropriate, approve form agreements that may be executed by the Mayor after approval by the Board of Aldermen.
3.
Incidental uses. Incidental uses of the public
rights-of-way may be permitted without a franchise or ROW agreement
pursuant to a rights-of-way permit issued by the Operations Manager.
The Mayor may establish such application, requirements and conditions
applicable to such uses consistent with the purposes of this Chapter
or as otherwise established by law.
B. Franchises And Agreements Non-Exclusive. The authority
granted by the City in any agreement or franchise shall be for non-exclusive
use of the rights-of-way. The City specifically reserves the right
to grant, at any time, such additional agreements or other rights
to use the rights-of-way for any purpose and to any other person,
including itself, as it deems appropriate, subject to all applicable
law. The granting of an agreement or franchise shall not be deemed
to create any property interest of any kind in favor of the ROW user.
C. Lease Required For Public Lands. Unless otherwise
provided, use or installation of any facilities in, on or over public
lands of the City not constituting rights-of-way shall be permitted
only if a lease agreement or other separate written approval has been
negotiated and approved by the City with such reasonable terms and
conditions as the City may require.
D. Transferability. Except as provided in this Chapter
or as otherwise required by law, no franchise, agreement or permit
may be transferred without the written application to and consent
of the City based on the requirements and policies of this Chapter.
The City shall not unreasonably withhold its consent to transfer as
provided herein, but any costs incurred shall be paid by the applicant.
E. Application For Franchise Or Agreement Required.
1.
Application. An application for franchise or
ROW agreement shall be presented to the Mayor in writing and shall
include all such information as is required by this Section. The ROW
user shall be responsible for accurately maintaining the information
in the application during the term of any franchise or agreement and
shall be responsible for all costs incurred by the City due to the
failure to provide or maintain as accurate any application information
required herein.
2.
Application fee. An application fee for review,
documentation and approval of such agreement or franchise shall be
established by the Mayor to recover any actual costs anticipated and
incurred by the City in reviewing, documenting, or negotiating such
agreement or franchise, including reasonable legal fees, provided
that no costs, if any, of litigation or interpretation of Section
67.1830 or 67.1832, RSMo., shall be included if such inclusion is
prohibited by law as to that applicant. If the actual costs are thereafter
determined to be less than the application fee, such amount shall
be returned to the applicant after written request therefrom; if the
actual costs reasonably exceed the application fee, the applicant
shall, after written notice from the City, pay such additional amount
prior to issuance by the City of any final approval. Nothing herein
shall be construed to prohibit the City from also charging reasonable
compensation for use of the public rights-of-way where such a fee
is not contrary to applicable law.
3.
Application form. A ROW user shall submit a
completed application for ROW agreement on such form provided by the
City, which shall include information necessary to determine compliance
with this Chapter.
4.
Approval process. After submission by the ROW
user of a duly executed and completed application and application
fee, and executed franchise or ROW agreement as may be provided by
the Operations Manager, or as modified by the Mayor in review of the
specific circumstances of the application, all in conformity with
the requirements of this Chapter and all applicable law, the Mayor
shall submit such agreement to the Board of Aldermen for approval.
Upon determining compliance with this Chapter, the Board of Aldermen
shall authorize execution of the agreement (or a modified agreement
otherwise acceptable to the City consistent with the purposes of this
Chapter), and such executed agreement shall constitute consent to
use the public rights-of-way; provided that nothing herein shall preclude
the rejection or modification of any executed franchise or agreement
submitted to the City to the extent such applicable law does not prohibit
such rejection or modification, including where necessary to reasonably
and in a uniform or non-discriminatory manner reflect the distinct
engineering, construction, operation, maintenance, public work or
safety requirements applicable to the applicant.
[Ord. No. 490, 7-20-2016]
A. No person shall make an excavation or perform work within the rights-of-way
without first obtaining a rights-of-way permit from the Operations
Manager, provided, that in case of emergency which requires immediate
attention to remedy defects, in order to prevent loss or damage to
persons or property, it shall be sufficient that the person making
such excavation or performing work in streets, alleys or sidewalks
obtain a permit as soon as possible and may proceed without a permit
when such permit cannot be obtained before starting such excavation
or work. The person securing a permit to make an excavation or perform
work in any street, alley or sidewalk is hereby deemed to be the person,
or his legal representative, making such excavation or performing
such work. All rights-of-way permits shall expire after sixty (60)
days from the date of issuance.
B. All persons shall be subject to all rules, regulations, policies,
resolutions, and ordinances now or hereafter adopted or promulgated
by the City in the reasonable exercise of its police power and are
subject to all applicable laws, orders, rules and regulations adopted
by governmental entities now or hereafter having jurisdiction. In
addition, the persons shall be subject to all technical specifications,
design criteria, policies, resolutions and ordinances now or hereafter
adopted or promulgated by the City in the reasonable exercise of its
police power relating to permits and fees, sidewalk and pavement cuts,
utility location, construction coordination, surface restoration,
and other requirements on the use of the rights-of-way. All persons
obtaining a permit shall provide the Operations Manager certificates
of insurance showing proof of liability coverage for personal injury
and property damage, as required herein. Any person found to be working
without providing for required safety and traffic control will be
directed to stop work until the appropriate measures are implemented
in accordance with the current edition of the Manual on Uniform Traffic
Control Devices.
C. All persons shall be subject to all rules and conditions of the City
application for right-of-way/excavation permit then being used.
[Ord. No. 490, 7-20-2016]
A. All excavations and work shall comply with each and every requirement
set forth in the City specifications.
B. The Operations Manager 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 traveling public. Each rights-of-way
permit shall be deemed to incorporate the provisions of this Chapter
as permit conditions.
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 Mayor, except as otherwise provided in Section
510.065 hereof.
D. A ROW user shall perform all excavations 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 excavations or work in conformance with all
applicable codes and established rules and regulations and shall be
responsible for all excavations 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. A ROW user shall be responsible for all reasonable
costs borne by the City that are directly associated with the ROW
user's permit or use of the rights-of-way thereunder.
E. Except in cases of an emergency or with approval of the Mayor, no
rights-of-way excavation or work may be done in violation of a stop-work
order issued by the Operations Manager if in his or her determination
conditions are unreasonable for such excavation or work based on standard
engineering and construction practices.
F. A ROW user shall not disrupt rights-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 traffic control plan.
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 Operations Manager 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 excavations 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. Any excavations
left open overnight on any thoroughfare or collector-type street shall
be securely covered. Unless otherwise approved by the Operations Manager
in writing, all excavations shall be filled in or covered at the end
of each working day. The ROW user assumes the sole responsibility
for maintaining proper barricades, plates, safety fencing and/or lights
as required from the time of opening of the excavation until the excavation
is surfaced and opened for travel.
K. Non-emergency excavation or work on arterial and collector streets
may not be performed during the hours of 7:00 A.M. to 8:30 A.M. and
4:00 P.M. to 6:00 P.M., in order to minimize disruption of traffic
flow. The ROW user shall perform excavation or work on the rights-of-way
at such times that will allow the least interference with the normal
flow of traffic and the peace and quiet of the neighborhood, and shall
not work between the hours of 10:00 P.M. and 7:00 A.M. Whenever there
is an excavation or work by the ROW user, the ROW user shall be responsible
for providing adequate traffic control and signage to the surrounding
area as determined by the Operations Manager or Police Chief of the
City. 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 to this Chapter.
L. The Operations Manager may limit the number of conduits or other
facilities 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 or deprive
the public or others of the reasonable use of the rights-of-way.
M. All underground mains, their service lines with ancillary appurtenances
thereto shall, wherever practicable, be placed within six (6) feet
of the pavement edge. As the width of the right-of-way varies the
final location of the main must be confirmed with the City of Lake
Waukomis Operations Manager to avoid a possible location outside of
the right-of-way in narrow right-of-way occurrences.
N. The ROW user shall notify the office of the Operations Manager upon
completion of the excavation or work authorized by the rights-of-way
permit.
O. Every person who obtains a rights-of-way permit and makes an excavation
within the rights-of-way shall guarantee for a period of one (1) year
the restoration of the rights-of-way in the area where such person
conducted an excavation and performed the restoration. Such person
shall guarantee the restoration of the rights-of-way against sagging,
buckling, deterioration, or other premature failures of the restoration.
If the applicant fails to restore the right-of-way in a manner and
to the condition required, or fails to satisfactorily and timely complete
all restoration required by the City, the City at its option may do
such work after giving the applicant at least twenty (20) days'
notice of its intent to do so. The applicant shall not be entitled
to further permits until restoration work is complete.
P. The Operations Manager, upon the review and approval of a plan and
details for trimming trees in the rights-of-way, may grant permission
by permit to any person to trim trees upon and overhanging the rights-of-way
so as to prevent the branches of such trees from coming in contact
with facilities of a ROW user. In the event the person severely disturbs
or damages any tree in the rights-of-way to the detriment of the health
and safety of the tree, the person will be required to remove and
replace a tree of like size at the person's cost. The location,
size, and species of any replacement tree shall be as approved by
the Mayor, unless the Mayor approves an equivalent monetary payment
in lieu of replanting. In reviewing any permit application, the Operations
Manager may require the Applicant to directionally bore around or
otherwise avoid disturbance to any tree, existing facility, or other
protected area in the rights-of-way.
Q. Upon the approved request of any party having satisfied City procedure
and ordinances, a ROW user shall remove, raise, or lower its facilities
temporarily to permit the moving of houses or other structures. Except
when required for a City project, the expense of such temporary removal,
raising or lowering shall be paid by the party requesting the same,
and the ROW user may require such payment in advance. The ROW user
must be given not less than fifteen (15) days' written notice
from the party detailing the time and location of the moving operations,
and not less than twenty-four (24) hours' advance notice from
the party advising of the actual operation.
R. Within sixty (60) days after completion of the work, the applicant
shall furnish the City with one complete set of plans, drawn to scale
and certified to the City as accurately depicting the location of
all utility facilities constructed pursuant to the permit. This requirement
may be waived by the City.
[Ord. No. 490, 7-20-2016]
Rights-of-way permits issued shall be made available by the
ROW user at all times at the indicated work site and shall be available
for inspection by the Operations Manager, other City employees and
the public.
[Ord. No. 490, 7-20-2016]
A. The Operations Manager may deny an application for a rights-of-way
permit 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 include the ROW user, or any persons acting on the
behalf of the ROW user, including contractors or subcontractors, that
have failed to return the public rights-of-way to their previous condition
under a previous rights-of-way 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 excavation or work identified in the rights-of-way
permit application or a reasonable alternative route that will not
result in additional installation expense of more than ten percent
(10%) to the ROW user or 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 application
is necessary to protect the public health and safety, the Operations
Manager 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 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 in the rights-of-way.
c.
The degree and nature 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 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.
The failure to comply with applicable City ordinances or any
other violation, unsafe conditions, or damage or threatened harm to
the rights-of-way or public that would constitute a lawful basis for
revocation of a permit.
[Ord. No. 490, 7-20-2016; Ord. No. 533, 12-21-2018]
Every person required to obtain a rights-of-way permit shall
pay a fee to the City for such permit as set forth in a Schedule approved
by the Board of Aldermen, as amended from time to time. Any person
making a street cut before obtaining a permit shall pay double the
normal permit fee, except for emergencies, in addition to any other
violation penalty as may be imposed under this Chapter.
[Ord. No. 490, 7-20-2016]
Where an application is made for a rights-of-way permit for
a ROW user to install or repair its facilities, the applicant shall
submit a map or plat of where the work is to take place. Such plat
or map shall be specific as to location and depth of the work, as
to street address or other location. For excavations or work involving
a street or curb, a traffic control plan shall be required and approved
by the Operations Manager before beginning work.
[Ord. No. 490, 7-20-2016]
A. Except as provided in this Section, each ROW user shall provide,
at its sole expense, and maintain during the term of an agreement
or franchise, commercial general liability insurance with a reputable,
qualified, and financially sound company licensed to do business in
the State of Missouri and, unless otherwise approved by the City,
with a rating by Best of not less than "A," that shall protect the
ROW user, the City, and the City's officials, officers, and employees
from claims which may arise from operations under an agreement or
franchise, whether such operations are by the ROW user, its officers,
Building Inspector, employees and agents, or any subcontractors of
the ROW user. This liability insurance shall include, but shall not
be limited to, protection against claims arising from bodily and personal
injury and damage to property, resulting from all ROW user operations,
products, services or use of automobiles, or construction equipment.
The amount of insurance for single limit coverage applying to bodily
and personal injury and property damage shall be at least two million
dollars ($2,000,000.00), but in no event less than the individual
and combined sovereign immunity limits established by Section 537.610,
RSMo., for political subdivisions; provided that nothing herein shall
be deemed to waive the City's sovereign immunity. An endorsement
shall be provided which states that the City is listed as an additional
insured and stating that the policy shall not be canceled or materially
modified so as to be out of compliance with the requirements of this
Section, or not renewed without thirty (30) days' advance written
notice of such event being given to the Mayor and Operations Manager.
If the person 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. The insurance requirements
in this Section or otherwise shall not apply to a ROW user to the
extent and for such period during an agreement or franchise as the
ROW user is exempted from such requirements pursuant to Section 67.1830(6)(a),
RSMo., and has on file with the City Clerk an affidavit certifying
that the ROW user has twenty million dollars ($20,000,000.00) in net
assets and is otherwise therefore so exempted unless otherwise expressly
provided by agreement or franchise.
B. The City reserves the right to waive any and all requirements under
this Section when deemed to be in the public interest.
C. Except as otherwise may be required by law for ROW users who have
on file with the City Clerk an affidavit certifying that the ROW user
has twenty million dollars ($20,000,000.00) in net assets and is otherwise
therefore exempted, a person shall at all times during the term of
a rights-of-way permit, and for four (4) years thereafter, maintain
a performance and maintenance bond in a form approved by the City
Attorney, Mayor or Operations Manager. The amount of the bond will
be five thousand dollars ($5,000) or one hundred and fifty percent
(150%) of the value of the restoration as reasonably determined by
the Operations Manager, whichever is greater, for a term consistent
with the term of the permit plus four (4) additional years, conditioned
upon the person's faithful performance of the provisions, terms
and conditions conferred by this Chapter. In the event the City shall
exercise its right to revoke the permit as granted herein, then the
City shall be entitled to recover under the terms of said bond the
full amount of any loss occasioned.
D. A copy of the liability insurance certificate and performance and
maintenance bond must be on file with the City Clerk.
[Ord. No. 490, 7-20-2016]
A. A ROW user shall promptly remove, relocate or adjust any facilities
located in the rights-of-way or in public easements as directed by
the City for a public improvement or as necessary to eliminate 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.
Where the ROW user facilities are located in whole or in part in private
easements, the ROW user shall promptly relocate the facilities if
the City has agreed to compensate the ROW user, through the condemnation,
purchase process, or other reasonable means for the cost of relocation
of the ROW user's facilities.
B. The City shall provide the ROW user with written notice of required
relocations or adjustments, the anticipated bid letting date, if any,
of the public improvement, and notice of the deadline for completion
of the relocations or adjustments. The ROW user shall respond within
ten (10) days with any conflicts and a proposed construction schedule
for relocation to be completed in not more than sixty (60) days from
date of the notice to the ROW user, unless such other schedule is
requested and reasonably approved by the Mayor. If facilities cannot
be fully relocated within the rights-of-way, the ROW user shall be
responsible at its own cost to obtain alternative locations to timely
relocate its facilities.
C. If any facilities are not relocated in accordance with this Section,
the City or its contractors may relocate the facilities after notice
to the ROW user. The ROW user and its surety shall be liable to the
City for any and all costs incurred by the City. 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. Failure
to comply with the relocation schedule set by the Mayor or Operations
Manager shall also subject the ROW user to penalties as provided for
violation of this Chapter.
[Ord. No. 490, 7-20-2016]
The City retains the right to vacate any rights-of-way within
the City. The City may condition vacation of its rights-of-way on
granting and recording of an acceptable easement authorizing the City
to use the vacated area, or a portion thereof, for specific purposes
as may be deemed appropriate in the public interest. The City may
also condition such vacation on payment of any relocation costs that
may result from such vacation. In the event that the vacation of rights-of-way
requires relocation of facilities of a ROW user, such user shall bear
all costs of relocation or removal of its facilities unless otherwise
provided by the party initiating the vacation. In no event shall the
City be obligated to pay for relocation costs due to a vacation of
right-of-way.
[Ord. No. 490, 7-20-2016]
A. A person owning abandoned facilities in the rights-of-way must remove
its facilities and replace or restore any damage or disturbance caused
by the removal at its own expense. The Mayor may allow underground
facilities or portions thereof to remain in place if the Mayor determines
that it is in the best interest of public safety to do so.
B. At such time, the City may take ownership and responsibility of such
vacated facilities left in place; or the person shall provide information
satisfactory to the City that such person's obligations for its
facilities in the rights-of-way have been lawfully assumed by another
authorized entity; or submit to the City a proposal and instruments
for transferring ownership of its facilities to the City. If the person
proceeds under this Section, the City may, at its option, purchase
the equipment, require the person, at its own expense, to remove it,
or require the person to post a bond in an amount sufficient to reimburse
the City for reasonable anticipated costs to be incurred to remove
the facilities.
C. Facilities of a person who fails to comply with this Section, and
whose facilities remain unused for two (2) years, shall be deemed
to be abandoned after the City has made a good faith effort to contact
the person, unless the City receives confirmation that the person
intends to use the facilities.
D. 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:
2.
Taking possession and ownership of the facility and restoring
it to a usable function; or
3.
Requiring the removal of the facility by the person.
[Ord. No. 490, 7-20-2016]
A. The City may, after reasonable notice and an opportunity to cure,
revoke a rights-of-way permit granted to a ROW user, without a fee
refund, if one or more of the following occurs:
1.
A material violation of a provision of this Chapter or a rights-of-way
permit, including the violation of any provision of this Chapter or
of any additional provisions of a specific permit;
2.
An evasion or attempt to evade any material provision of the
rights-of-way permit, or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its citizens;
3.
A material misrepresentation of fact in the rights-of-way permit
application;
4.
A failure to complete excavation or work by the date specified
in the rights-of-way permit, unless a rights-of-way permit extension
is obtained or unless the failure to complete the 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,
excavation or work that does not conform to applicable 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.
B. If a rights-of-way 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.
[Ord. No. 490, 7-20-2016]
Unless otherwise provided herein or by any other governing ordinance
or law, any person aggrieved by a decision, fee or requirement established
or made pursuant to this Chapter shall, prior to seeking any judicial
or statutory relief, if any, file a written appeal of any such decision,
fee or requirement with the Board of Aldermen within fifteen (15)
days of such decision or imposition of such fee or requirement, specifying
this provision and including specific details of the alleged claim
or grievance, and an evidentiary hearing shall be held on such appeal
by the Board of Aldermen or its designee to render a final decision.
Nothing herein shall deny or preclude any additional applicable appeal
remedy that may be granted by Federal or State law after such final
decision.
[Ord. No. 490, 7-20-2016]
In addition to any other penalties and remedies for violations that may exist in law or equity, any person that violates any provision of this Chapter shall be deemed to have committed an offense punishable as set forth in Section
100.220 of the Code and as otherwise provided for City Code violations.