[Ord. No. 2005-07-25-04 § 2, 7-25-2005]
To the extent permitted by law, this Chapter shall apply to
all persons desiring to construct, operate or maintain facilities
in, along, across, under or over Public Rights-of-Way within the City.
[Ord. No. 2005-07-25-04 § 2, 7-25-2005]
For the purposes of this Chapter, the following terms, phrases,
words and abbreviations shall have the meanings given herein, unless
otherwise expressly stated. When not inconsistent with the context,
words used in the present tense include the future tense and vice
versa, words in the plural number include the singular number and
vice versa and the masculine gender includes the feminine gender and
vice versa. The words "shall" and "will" are mandatory and "may" is
permissive. Unless otherwise expressly stated or clearly contrary
to the context, terms, phrases, words and abbreviations not defined
herein shall be given the meaning set forth in the City Code and,
if not defined therein, their common and ordinary meaning. For further
convenience, the first letter of terms, phrases, words and abbreviations
defined in this Chapter have been capitalized, but an inadvertent
failure to capitalize such letter shall not affect its meaning nor
shall the inadvertent capitalization of the first letter of a term,
phrase, word or abbreviation not defined herein affect the meaning
thereof.
The specific Person applying for and receiving a Permit under
this Chapter.
That form designed by the City Engineer and approved by the
City, which an Applicant must use to obtain a Permit to conduct Facilities
Work across, over or under the City's right-of-way.
The City of Greenwood, Missouri.
The City Engineer or his designee.
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, uncovered,
removed or otherwise displaced by means of any tools, equipment or
explosives, except that any de minimis displacement or movement of
ground caused by pedestrian or vehicular traffic or any other activity
which does not disturb or displace surface conditions of the earth,
asphalt, concrete, sand, gravel, rock or any other material in or
on the ground shall not be deemed Excavation.
Any conduit, duct, line, pipe, wire, hose, cable, culvert,
tube, pole, receiver, transmitter, satellite dish, micro call, Pico
cell, repeater, amplifier or other device, material, apparatus or
medium useable (whether actually used for such purpose or not) for
the transmission or distribution of any service or commodity installed
below or above ground within the Public Rights-of-Way of the City,
whether used privately or made available to the public.
The installation of new Facilities or any change, replacement,
relocation, removal, alteration or repair of existing Facilities that
requires Excavation within the Public Rights-of-Way.
A Permit granted by the Public Works Department of City to
do Facilities Work within the Public Rights-of-Way.
An individual, partnership, association, joint stock company,
trust, organization, limited liability company, corporation or other
entity or any lawful successor thereto or transferee thereof, but
such term does not include the City.
The surface, the air space above the surface and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, parkway or other similar
property in which the City now or hereafter holds any property interest,
which was dedicated as rights-of-way. No reference herein, or in any
Permit, to "Public Rights-of-Way" shall be deemed to be a representation
or guarantee by the City that its interest or other right to control
the use of such property is sufficient to permit its use for such
purposes. "Public Rights-of-Way" does not include the airwaves above
the rights-of-way with regard to cellular or other non-wire telecommunications
or broadcast services or easements obtained by utilities or private
easements in platted subdivisions or tracts.
[Ord. No. 2005-07-25-04 § 2, 7-25-2005]
A.
Permit
Requirements. Any Person desiring to conduct Facilities Work within
Public Rights-of-Way must first apply for and obtain a Permit, in
addition to any other building permit, license easement or authorization
required by law, unless such Facilities Work must be performed on
an emergency basis, then the Person conducting the work shall as soon
as practicable notify the City of the location of the work and apply
for the required permit by the third business day following the commencement
of the Facilities Work.
1.
All Applications for permits shall be submitted to the City
Clerk. The City Engineer shall design and make available standard
forms for such Applications, requiring such information as the City
Engineer determines to be necessary, consistent with the provisions
of this Chapter, to accomplish the purposes of this Chapter.
2.
Each such Application shall be accompanied by payment of fees
as designated in this Chapter.
3.
The City Engineer shall review each Application for a Permit and, upon determining that the Applicant has authority to perform the desired Facilities Work and that the Applicant has submitted all necessary information and has paid the appropriate fee, shall issue the permit, except as provided in Subsection (4). In order to avoid excessive processing and accounting costs to either the City or the Applicant, the City Engineer shall have authority to establish procedures for bulk processing of Applications and periodic payment of fees.
4.
It is the intention of the City that disruption of the Public
Rights-of-Way should be minimized. Upon receipt of an Application
for a Permit, the City Engineer shall do the following:
a.
Evaluate the degree of Excavation necessary to perform the Facilities
Work in the Right-of-Way and determine whether the Excavation will
be more than minor in nature. If the Applicant can show to the City
Engineer's reasonable satisfaction that the Facilities Work involves
any of the following:
b.
For circumstances where the City Engineer determines that there will be significant Excavation of the Public Rights-of-Way and no exemption under Subsection (4)(a) or any other provision of this Section applies, the City Engineer may, consistent with the time requirements set forth in Section 510.220 and in the Permit, direct Permit holders performing Facilities Work in the same area to consult on how they may schedule and coordinate their work to accomplish the goal of this Section.
5.
Each Permit shall include projected commencement and termination
dates or, if such dates are unknown at the time the Permit is issued,
a provision requiring the Permit holder to provide the City Engineer
with reasonable advance notice of such dates once they are determined;
length of Public Rights-of-Way; number of road crossings; information
regarding scheduling and coordination of Facilities Work, if applicable;
and location of Facilities.
6.
The City Engineer may include in Permits such conditions and
requirements as are reasonably necessary to protect structures and
Facilities in the Public Rights-of-Way from damage and for the proper
restoration of such Public Rights-of-Way, structures and Facilities
and for the protection of the public and the continuity of pedestrian
and vehicular traffic.
7.
The City Engineer may deny a Permit Application for the following
reasons if deemed in the public's interest:
a.
Undisputed past due fees from prior permits;
b.
Failure to return the right-of-way to its previous condition
under previous permits;
c.
Undue disruption to existing utilities, transportation or City
use, which would affect public health and safety;
d.
Area is environmentally sensitive as defined by State or Federal
Statute or located within a historic district, as may be established
by local ordinance;
e.
Failure to provide necessary information requested by City;
and
f.
The Applicant is in violation of the provisions of this Chapter.
8.
Applicant may appeal any final decision of the City Engineer
to the Board of Aldermen 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:
a.
Permit Fee. The permit fee which shall be used 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 shall be thirty-five dollars ($35.00) plus the inspection
and management fees based on a percentage of the required bond amount
and as defined in the following table:
|
Application fee: $35.00
| |||
|
Administration, inspection and management fee based on percentage
of bond amount:
| |||
|
Streets
|
20%
|
Grass/Parkway
|
5%
|
|
Unpaved/Overlays
|
15%
|
Cotic Driveway
|
25%
|
|
Sealcoats
|
15%
|
Sidewalk
|
10%
|
b.
Applicant Subject To Other Laws, Police Power.
(1)
An Applicant shall at all times be subject to all
lawful exercise of the Police powers of the City including, but not
limited to, all powers regarding zoning, supervision of construction
and control of Public Rights-of-Way.
(2)
No action or omission of the City shall operate
as a future waiver of any rights of the City under this Chapter.
(3)
The City shall have the maximum plenary authority
to regulate Applications, Permits and Facilities Work as may now or
hereafter be lawfully permissible. Except where rights are expressly
granted or waived by a Permit, they are reserved, whether or not expressly
enumerated. This Chapter may be amended from time to time and in no
event shall this Chapter be considered a contract between the City
and an Applicant such that the City would be prohibited from amending
any provision hereof.
[Ord. No. 2005-07-25-2004 § 2, 7-25-2005]
A.
Oversight of Facilities Work.
1.
An Applicant shall construct, operate and maintain Facilities
subject to the supervision of all of the authorities of the City who
have jurisdiction in such matters and in strict compliance with this
Chapter, all applicable zoning and construction permitting ordinances,
departmental rules and regulations.
2.
Facilities Work shall be subject to periodic inspection by the
City.
3.
The City Engineer and Public Works Department for City 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 Jackson 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 three (3) 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 adopted by City.
2.
All Facilities shall be installed and located with due regard
for minimizing interference with the public and with other utility
users of the rights-of-way, including the City.
3.
An Applicant shall not place Facilities where they will damage
or interfere with the use or operation of previously installed Facilities
or obstruct or hinder the various utilities serving the residents
and businesses in the City of their use of any Public Rights-of-Way.
4.
Any and all Public Rights-of-Way disturbed or damaged during
the Facilities Work shall be promptly repaired or replaced by the
Applicant to its previous condition.
5.
Any contractor or subcontractor used for Facilities Work must
be properly licensed under laws of the State and all applicable local
ordinances and each contractor or subcontractor shall have the same
obligations with respect to its work as an Applicant would have hereunder
and applicable laws if the work were performed by the Applicant. The
Applicant shall be responsible for ensuring that the Work of contractors
and subcontractors is performed consistent with its Permits and applicable
law, shall be fully responsible for all acts or omissions of contractors
or subcontractors and shall be responsible for promptly correcting
acts or omissions by any contractor or subcontractor.
[Ord. No. 2005-07-25-04 § 2, 7-25-2005]
A.
Performance Bond.
1.
Prior to any Facilities Work in the Public Rights-of-Way, an
Applicant shall establish in the City's favor a performance bond in
an amount determined by the City Engineer as necessary to ensure the
Applicant's faithful performance of the Facilities Work. Differences
in bond requirements, including provisions for self-insurance or provisions
for a single continuing bond where Facilities Work is conducted by
the same Applicant under numerous permits, may be established by regulation
based on the extent or nature of the Facilities Work, the past performance
of the applicant and not based on the characteristics of the Applicant.
In lieu of a performance bond, Applicant may provide an acceptable
substitute with the approval of the City Engineer.
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 City Engineer, the City Engineer shall eliminate the bond or reduce
its amount after a time appropriate to determine whether the work
performed was satisfactory, which time shall be established by the
City Engineer considering the nature of the work performed.
4.
A performance bond shall be issued by a surety acceptable to
the City and shall contain the following endorsement: "This bond may
not be canceled or allowed to lapse until sixty (60) days after receipt
by the City, by certified mail, return receipt requested, of a written
notice from the issuer of the bond of intent to cancel or not to renew."
5.
Applicant shall, at its sole cost and expense, indemnify, hold
harmless and defend the City, its officials, boards, board members,
commissions, commissioners, agents and employees against any and all
claims, suits, causes of action or proceedings and judgments for damages
or equitable relief which are caused by the acts, errors and omissions
of Applicant arising out of the construction and maintenance of its
Facilities.
6.
Recovery by the City of any amounts under the performance bond
or otherwise does not limit an Applicant's duty to indemnify the City
in any way, nor shall such recovery relieve an Applicant of its obligations
under a Permit or reduce the amounts owed to the City other than by
the amounts recovered by the City under the performance bond or in
any respect prevent the City from exercising any other right or remedy
it may have.
B.
Penalties. For each violation of provisions of this Chapter or a
Permit granted pursuant to this Chapter as to which the City has given
notice to Applicant as provided in this Chapter, penalties may be
chargeable to the Applicant at a rate not exceeding one thousand dollars
($1,000.00) per day for so long as the violation continues.
[Ord. No. 2005-07-25-04 § 2, 7-25-2005]
A.
Compliance With Laws. Each Applicant shall comply with all applicable
City ordinances, resolutions, rules and regulations heretofore and
hereafter adopted or established.
B.
Franchises Not Superseded. Nothing herein relieves the City from
any obligations under an existing franchise. Nothing herein shall
be deemed to relieve an Applicant of the provisions of an existing
franchise, license or other agreement or permit.
C.
Rights And Remedies.
1.
The exercise of one (1) remedy under this Chapter shall not
foreclose use of another, nor shall the exercise of a remedy or the
payment of damages or penalties relieve an Applicant of its obligations
to comply with its Permits. Remedies may be used alone or in combination;
in addition, the City may exercise any rights it has at law or equity.
2.
The City hereby reserves to itself the right to intervene in
any suit, action or proceeding involving any provisions of this Chapter.
3.
No Applicant shall be relieved of its obligation to comply with
any of the provisions of this Chapter by reason of any failure of
the City to enforce prompt compliance.
D.
Incorporation By Reference. Any Permit granted pursuant to this Chapter
shall by implication include a provision that shall incorporate by
reference this Chapter into such Permit as fully as if copied therein
verbatim.
E.
Force Majeure. An Applicant shall not be deemed in violation of provisions
of this Chapter where performance was rendered impossible by war or
riots, civil disturbances, floods or other natural catastrophes beyond
the Applicant's control and a Permit shall not be revoked or an Applicant
penalized for such non-compliance, provided that the Applicant takes
immediate and diligent steps to bring itself back into compliance
and to comply as soon as possible under the circumstances with its
Permit without unduly endangering the health, safety and integrity
of the Applicant's employees or property, the public, Public Right-of-Way,
public property or private property.
F.
Calculation Of Time. Unless otherwise indicated, when the performance
or doing of any act, duty, matter or payment is required under this
Chapter or any Permit and a period of time is prescribed and is fixed
herein, the time shall be computed so as to exclude the first and
include the last day of the prescribed or fixed period of time.
G.
Severability. If any term, condition or provision of this Chapter
shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in applicable
law so that the provision that has been held invalid is no longer
invalid, said provisions shall thereupon return to full force and
effect without further action by the City and shall thereafter be
binding on the Applicant and the City.
[Ord. No. 2005-07-25-04 § 2, 7-25-2005]
The provisions hereof shall specifically apply to any lands
or property annexed as of the date of such annexation.
[Ord. No. 2005-07-25-04 § 2, 7-25-2005]
Whenever, by reason of changes in the grade or widening of a
street or in the location or manner of constructing a water pipe,
drainage channel, sewer or other City-owned underground or above ground
structure, it is deemed necessary by the City to move, alter, change,
adapt or conform the underground or above ground facilities of user,
user shall make the alterations or changes, on alternative right-of-way
provided by the City, if available, as soon as practicable after being
so ordered in writing by the City without claim for reimbursement
or damages against the City.
[Ord. No. 2005-07-25-04 § 2, 7-25-2005]
Any standards in this Chapter relating to Facilities Work shall
be fully applicable to work performed by the City and its departments.
