[Ord. No. 06-10-03 § 1, 10-12-2006]
To the extent permitted by law, this Chapter
shall apply to all persons desiring to construct, operate, or maintain
facilities in, along, across, under or over public rights-of-way within
the City.
[Ord. No. 06-10-03 § 2, 10-12-2006]
Definitions And Usage. For the purposes of this
Chapter, the following terms, phrases, words, and abbreviations shall
have the meanings given herein unless otherwise expressly stated.
When not inconsistent with the context, words used in the present
tense include the future tense and vice versa, words in the plural
number include the singular number and vice versa, and masculine gender
includes the feminine gender and vice versa. The words "shall" and
"will" are mandatory and "may" is permissive. Unless otherwise expressly
stated or clearly contrary to the context, terms, phrases, words,
and abbreviations not defined herein shall be given the meaning set
forth in the City Code, and if not defined therein, their common and
ordinary meaning.
The specific person applying for and receiving a permit under
this Chapter.
That form designed by the Superintendent of City Services
and the City Clerk which an applicant must use to obtain a permit
to conduct facilities work across, over or under the City's rights-of-way.
The City of Salisbury, Missouri.
The City Clerk or his or her designee.
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, uncovered,
removed, or otherwise displaced by means of any tools, equipment or
explosives, except that any de minimis displacement or movement of
ground caused by pedestrian or vehicular traffic or any other activity
which does not disturb or displace surface conditions of the earth,
asphalt, concrete, sand, gravel, rock or any other material in or
on the ground shall not be deemed excavation.
Any conduit, duct, line, pipe, wire, hose, cable, culvert,
tube, pole, receiver, transmitter, satellite dish, micro call, picocell,
repeater, amplifier, or other device, material, apparatus, or medium,
usable (whether actually used for such purpose or not) for the transmission
or distribution of any service or commodity installed below or above
ground within the public rights-of-way of the City, whether used privately
or made available to the public.
The installation of new facilities or any change, replacement,
replication, removal, alteration or repair of existing facilities
that requires excavation within the public rights-of-way, except for
the occasional replacement of utility poles and related equipment
at the existing general location that does not involve either a street
or sidewalk cut.
A permit granted by the Superintendent of City Services to
do facilities work within the public rights-of-way.
An individual, partnership, association, joint-stock company,
trust, organization, limited-liability company, corporation, or other
entity, or any lawful successor thereto or transferee thereof, but
such term does not include the City.
The surface, the air space above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, parkway, or other similar
property in which the City now or hereafter holds any property interest
which was dedicated as rights-of-way. No reference herein or in any
permit to public rights-of-way shall be deemed to be a representation
or guarantee by the City that its interest or other right to control
the use of such property is sufficient to permit its use for such
purposes. "Public rights-of-way" does not include the airwaves above
the rights-of-way with regard to cellular or other non-wire telecommunications
or broadcast services, or easements obtained by utilities or private
easements in platted subdivisions or tracts.
The Superintendent of City Services or his or her designee.
[Ord. No. 06-10-03 § 3, 10-12-2006]
A.
Permit Requirements. Any person desiring to conduct
facilities work within public rights-of-way must first apply for and
obtain a permit, in addition to any other building permit, license,
easement, or authorization required by law, unless such facilities
work must be performed on an emergency basis, then the person conducting
the work shall, as soon as practicable, notify the City of the location
of the work and apply for the required permit by the third business
day following the commencement of the facilities work.
1.
All applications for permits shall be submitted
to the Superintendent of City Services. The Superintendent of City
Services shall design and make available standard forms for such applications,
requiring such information as the Superintendent of City Services
determines to be necessary, consistent with the provisions of this
Chapter, to accomplish the purposes of this Chapter.
2.
Each such application shall be accompanied by
payment of fees as designated in this Chapter.
3.
The Superintendent of City Services shall review each application for a permit and, upon determining that the applicant has authority to perform the desired facilities work and that the applicant has submitted all necessary information and has paid the appropriate fee, shall issue the permit, except as provided in Subsection (A)(4). In order to avoid excessive processing and accounting costs to either the City or the applicant, the Superintendent of City Services shall have authority to establish procedures for bulk processing of applications and periodic payment of fees.
4.
It is the intention of the City that disruption
of the public rights-of-way should be minimized. Upon receipt of an
application for a permit, the Superintendent of City Services shall
do the following:
a.
Evaluate the degree of excavation necessary to perform the facilities work in the right-of-way and determine whether the excavation will be more than minor in nature. If the applicant can show to the Superintendent of City Services's reasonable satisfaction that the facilities work involves any of the following: no significant disruption or damage to the public rights-of-way, or time-sensitive maintenance; then the Superintendent of City Services shall grant the permit without delay, provided that if the permit is not issued in ten (10) business days, the aggrieved party may appeal as provided in Subsection (A)(8); and
b.
For circumstances where the Superintendent of City Services determines that there will be significant excavation of the public rights-of-way and no exemption under Subsection (A)(4)(a) or any other provision of this Section applies, the Superintendent of City Services may, consistent with the time requirements set forth in Section 520.030 and in the permit, direct permit holders performing facilities work in the same area to consult on how they may schedule and coordinate their work to accomplish the goal of this Section.
5.
Each permit shall include projected commencement
and termination dates, or if such dates are unknown at the time the
permit is issued, a provision requiring the permit holder to provide
the Superintendent of City Services with reasonable advance notice
of such dates once they are determined; length of public rights-of-way;
number of road crossings; information regarding scheduling and coordination
of facilities work, if applicable; and location of facilities.
6.
The Superintendent of City Services may include
in permits such conditions and requirements as are reasonably necessary
to protect structures and facilities in the public rights-of-way from
damage and for the proper restoration of such public rights-of-way,
structures and facilities, and for the protection of the public and
the continuity of pedestrian and vehicular traffic.
7.
Denial Of Permit Application.
a.
The Superintendent of City Services may deny
a permit application for the following reasons if deemed in the public's
interest:
(1)
Undisputed past due fees from prior
permits;
(2)
Failure to return the right-of-way
to its previous condition under previous permits;
(3)
Undue disruption to existing utilities,
transportation or City use;
(4)
Area is environmentally sensitive
as defined by State or Federal Statute;
(5)
Failure to provide required information;
and
(6)
The applicant is in violation of
the provisions of this Chapter.
b.
Notwithstanding the provisions of Subsections (A)(7)(a)(3) and (A)(7)(a)(4) above, the Superintendent of City Services will cooperate with the applicant to identify alternative routes which most nearly match the routes requested by applicant for the placement of facilities.
8.
Applicant may appeal any final decision of the
Superintendent of City Services to:
a.
The City Mayor, which appeal shall be acted
upon by the Mayor within five (5) business days; and
b.
If denied by the Mayor, the applicant may then
appeal to the Governing Body of the City, which shall consider the
appeal within sixty (60) days or at its next regular meeting, whichever
occurs first.
9.
Applicant Must Pay The Following Fees. Any fees
collected pursuant to this Section will be used only to reimburse
the City for its actual incurred cost of managing the rights-of-way
and will not be used to generate revenue to the City above such costs.
The City may not require or accept in-kind services in lieu of any
fee.
a.
Permit Fee. A fee charged to recover the City's
actual costs for an applicant's facilities work in the right-of-way,
including the costs of processing permits, inspections and administration
of this Chapter, excluding legal fees relating to the interpretation
or enforcement of this Chapter, including all such appeals. The permit
fee is one hundred dollars ($100.00).
b.
Applicant Subject To Other Laws, Police Power.
(1)
An applicant shall at all times
be subject to all lawful exercise of the police powers of the City,
including but not limited to all powers regarding zoning, supervision
of construction, and control of public rights-of-way.
(2)
Facilities work shall be subject
to periodic inspection by the City.
(3)
The Superintendent of City Services
shall have full access to all portions of facilities work and may
issue stop-work orders and corrective orders to prevent unauthorized
work. Such corrective or stop-work orders shall state that work not
authorized by the permit is being carried out, summarize the unauthorized
work and provide a period of not longer than thirty (30) days to cure
the problem, which cure period may be immediate if certain activities
must be ceased to protect the public safety, and may be delivered
personally or by certified mail to the address listed on the application
for permit or to the person in charge of the construction site at
the time of delivery. Such orders may be enforced by equitable action
in the Circuit Court of Chariton County, Missouri, and if the City
prevails in such case, the person involved in the facilities work
shall be liable for all costs and expenses incurred by the City, including
reasonable attorney's fees, in enforcing such orders, in addition
to any and all penalties established in this Chapter.
(4)
Any person who engages in facilities
work in the public rights-of-way and who has not received a valid
permit from the City shall be subject to all requirements of this
Chapter. Except in those instances where facilities work must be performed
on an emergency basis, the City may, in its discretion, at any time
until a permit is secured, order the facilities work ceased and do
any of the following: require such person to apply for a permit within
thirty (30) days of receipt of a written notice from the City that
a permit is required; require such person to remove its property and
restore the affected area to a condition satisfactory to the City;
or take any other action it is entitled to take under applicable law,
including, but not limited to, filing for and seeking damages for
trespass.
B.
Construction Standards.
1.
The construction, operation, maintenance, and
repair of facilities shall be in accordance with applicable health,
safety, and construction codes.
2.
All facilities shall be installed and located
with due regard for minimizing interference with the public and with
other utility users of the rights-of-way, including the City.
3.
An applicant shall not place facilities where
they will damage or interfere with the use or operation of previously
installed facilities, or obstruct or hinder the various utilities
serving the residents and businesses in the City or their use of any
public rights-of-way.
4.
Any and all public rights-of-way disturbed or
damaged during the facilities work shall be promptly repaired or replaced
by the applicant to its previous condition.
5.
Any contractor or subcontractor used for facilities
work must be properly licensed under laws of the State and all applicable
local ordinances, and each contractor or subcontractor shall have
the same obligations with respect to its work as an applicant would
have hereunder and under applicable laws if the work were performed
by the applicant. The applicant shall be responsible for ensuring
that the work of contractors and subcontractors is performed consistent
with its permits and applicable law, shall be fully responsible for
all acts or omissions of contractors or subcontractors, and shall
be responsible for promptly correcting acts or omissions by any contractor
or subcontractor.
[Ord. No. 06-10-03 § 5, 10-12-2006]
A.
Performance Bond.
1.
Prior to any facilities work in the public rights-of-way,
an applicant shall establish in the City's favor a performance bond
in an amount determined by non-discriminatory regulations promulgated
by the Superintendent of City Services as necessary to ensure the
applicant's faithful performance of the facilities work. Differences
in bond requirements, including provisions for self-insurance or provisions
for a single continuing bond where facilities work is conducted by
the same applicant under numerous permits, may be established by regulation
based on the extent or nature of the facilities work, the past performance
of the applicant and not based on the characteristics of the applicant.
In lieu of a performance bond, applicant may provide an acceptable
substitute with the approval of the Superintendent of City Services
and the City Clerk.
2.
In the event an applicant fails to complete
the facilities work in a safe, timely and competent manner, there
shall be recoverable, jointly and severally, from the principal and
surety at the bond any damages or loss suffered by the City as a result,
plus a reasonable allowance for attorney's fees, up to the full amount
of the bond.
3.
Upon completion of the facilities work to the
satisfaction of the Superintendent of City Services, the Superintendent
of City Services shall eliminate the bond or reduce its amount after
a time appropriate to determine whether the work performed was satisfactory,
which time shall be established by the Superintendent of City Services
considering the nature of the work performed.
4.
A performance bond shall be issued by a surety
acceptable to the City, and shall contain the following endorsement:
"This bond may not be canceled or allowed to
lapse until sixty (60) days after receipt by the City, by certified
mail, return receipt requested, of a written notice from the issuer
of the bond of intent to cancel or not to renew."
5.
Applicant shall, at its sole cost and expense,
indemnify, hold harmless, and defend the City, its officials, boards,
board members, commissions, commissioners, agents, and employees against
any and all claims, suits, causes of action or proceedings, and judgments
for damages or equitable relief which are caused by the acts, errors
and omissions of applicant arising out of the construction and maintenance
of its facilities.
6.
Recovery by the City of any amounts under the
performance bond or otherwise does not limit an applicant's duty to
indemnify the City in any way, nor shall such recovery relieve an
applicant of its obligations under a permit or reduce the amounts
owed to the City other than by the amounts recovered by the City under
the performance bond, or in any respect prevent the City from exercising
any other right or remedy it may have.
[Ord. No. 06-10-03 § 6, 10-12-2006]
A.
Compliance With Laws. Each applicant shall comply
with all applicable City ordinances, resolutions, rules and regulations
heretofore and hereafter adopted or established.
C.
Rights And Remedies.
1.
The exercise of one (1) remedy under this Chapter
shall not foreclose use of another, nor shall the exercise of a remedy
or the payment of damages or penalties relieve an applicant of its
obligations to comply with its permits. Remedies may be used alone
or in combination; in addition, the City may exercise any rights it
has at law or equity.
2.
The City hereby reserves to itself the right
to intervene in any suit, action or proceeding involving any provisions
of this Chapter.
3.
No applicant shall be relieved of its obligation
to comply with any of the provisions of this Chapter by reason of
any failure of the City to enforce prompt compliance.
D.
Incorporation By Reference. Any permit granted pursuant
to this Chapter shall, by implication, include a provision that shall
incorporate by reference this Chapter into such permit as fully as
if copied therein verbatim.
E.
Force Majeure. An applicant shall not be deemed in
violation of provisions of this Chapter where performance was rendered
impossible by war or riots, civil disturbances, floods, or other natural
catastrophes beyond the applicant's control, and a permit shall not
be revoked or an applicant penalized for such noncompliance, provided
that the applicant takes immediate and diligent steps to bring itself
back into compliance and to comply as soon as possible under the circumstances
with its permit without unduly endangering the health, safety, and
integrity of the applicant's employees or property, the public, public
right-of-way, public property, or private property.
F.
Calculation Of Time. Unless otherwise indicated, when
the performance or doing of any act, duty, matter, or payment is required
under this Chapter or any permit and a period of time is prescribed
and is fixed herein, the time shall be computed so as to exclude the
first and include the last day of the prescribed or fixed period of
time.
G.
Severability. If any term, condition, or provision
of this Chapter shall, to any extent, be held to be invalid or unenforceable,
the remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in applicable
law so that the provision that has been held invalid is no longer
invalid, said provisions shall thereupon return to full force and
effect without further action by the City and shall thereafter be
binding on the applicant and the City.
[Ord. No. 06-10-03 § 7, 10-12-2006]
The provisions hereof shall specifically apply
to any lands or property annexed as of the date of such annexation.
[Ord. No. 06-10-03 § 8, 10-12-2006]
Whenever, by reason of changes in the grade
or widening of a street or in the location or manner of constructing
a water pipe, drainage channel, sewer, or other City-owned underground
or above ground structure, it is deemed necessary by the City to move,
alter, change, adapt, or conform the underground or above ground facilities
of a user, the user shall make the alterations or changes on an alternative
right-of-way provided by the City, if available, as soon as practicable
after being so ordered in writing by the City without claim for reimbursement
or damages against the City.
[Ord. No. 06-10-03 § 9, 10-12-2006]
Any standards in this Chapter relating to facilities
work shall be fully applicable to work performed by the City and its
departments.
[Ord. No. 06-10-03 § 10, 10-12-2006]
Nothing contained herein shall in any manner
be deemed or construed to alter, modify, supersede, supplement or
otherwise nullify any other ordinances of the City or requirements
thereof, whether or not relating to or in any manner connected with
the subject written hereof, unless expressly provided otherwise herein
or hereafter.
