[Ord. No. 1017, 8-1-2018]
A.
This Chapter is adopted for the following purposes:
1.
To recognize the City's primary role as chief steward of
the right-of-way and its duty to its citizens to recover the costs
of managing the right-of-way and incursions into it;
2.
To clarify and regulate conditions of occupancy and construction
for those ROW-users occupying space within the City's right-of-way
given the anticipated increased use of the right-of-way by various
ROW-users throughout the country;
3.
To recognize the necessity for sound management practices in
light of the increased use of the right-of-way and the fact that the
right-of-way is a limited resource;
4.
To treat each ROW-user equitably and in a competitively neutral
and non-discriminatory manner with considerations that may be unique
to the technologies and situation of each particular ROW-user;
5.
To minimize disruption, visual impact or inconvenience to the
public, and to preserve the public health, safety and welfare; and
6.
To comply with State and Federal legislation.
[Ord. No. 1017, 8-1-2018]
No person shall excavate the right-of-way, construct, or use
the facilities within the right-of-way of the City except as provided
herein.
[Ord. No. 1017, 8-1-2018]
For purposes of this Chapter the following words and phrases
shall have the meaning given herein:
Those facilities owned by the ROW-user that are not in use
and are not likely to be utilized by the owner in the future.
Any person controlling, controlled by or under the common
control of a "service provider."
Any person requesting permission to occupy, lease or operate
facilities using the right-of-way, or to excavate the right-of-way.
That area around a street excavation where the pavement and
sub-grade is impacted by the excavation and is subject to more rapid
deterioration.
The City of Buckner, Missouri, a municipal corporation, and
any duly authorized representative.
The City Clerk of the City of Buckner, Missouri, or the authorized
representative.
Includes construct, install, erect, build, affix or otherwise
place any fixed structure or object, in, on, under, through or above
the right-of-way.
Calendar day unless otherwise specified.
A condition that: (a) poses a clear and immediate danger
to life or health, or of a significant loss of property; or (b) requires
immediate repair or replacement in order to restore service to a user.
Includes any cutting, digging, excavating, tunneling, boring,
grading or other alteration of the surface or subsurface material
or earth in the right-of-way.
The fee charged by the City for each street or pavement cut
which is intended to recover the costs associated with construction
and repair activity of the ROW-user and its contractors and/or subcontractors.
Lines, pipes, irrigation systems, wires, cables, conduit
facilities, poles, towers, vaults, pedestals, boxes, appliances, antennas,
transmitters, gates, meters, appurtenances, or other equipment.
Federal Communications Commission.
An ordinance passed by the City in accordance with Missouri
law and granting a person the right to use the right-of-way or provide
service to the City's residents and providing compensation to
the City that is in addition to the fees and charges for registering
service providers, right-of-way permit fees, inspection fees, building
permit fees, excavation fees or other administrative fees.
The Mayor and the Board of Aldermen of the City of Buckner,
Missouri.
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 area between a property line and the street curb, sometimes
called boulevard, tree-shelf or snow-shelf.
Includes Portland cement concrete pavement, asphalt concrete
pavement, asphalt treated road surfaces and any aggregate base material.
The fee charged by the City to recover its cost incurred
for right-of-way management; including, but not limited to, costs
associated with registering applicants; issuing, processing, and verifying
right-of-way permit applications; inspecting job sites and restoration
of improvements; determining the adequacy of right-of-way restoration;
revoking right-of-way permits and, other costs the City may incur
in managing the provisions of this Chapter.
Any person to whom a right-of-way permit is issued to excavate
a right-of-way.
Any natural or corporate person, business association or
business entity, including, but not limited to, 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 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, street lights, public facilities, public building or public
lands.
Any real property owned by the City that is not right-of-way.
The Public Works Director of the City of Buckner, Missouri,
or such other official designated by the City Administrator.
The application process of a service provider, the approval
of the application by the City, and the authorization of the service
provider to use any portion of the right-of-way within the City to
provide service both within and beyond the City limits.
The temporary construction work necessary to make the right-of-way
usable.
Those costs associated with repairing and restoring the public
right-of-way because of damage caused by the ROW-user and its contractors
and/or subcontractors in the right-of-way.
The process by which an excavated right-of-way and surrounding
area, including pavement and foundation, is returned to the same condition,
or better than, that existed before the commencement of the work.
The areas within the City on, below or above public or private
property shown as right-of-way for public use on present and future
recorded plats or dedicated as right-of-way by deed of dedication.
It also includes the area on, below or above City streets, curbs,
alleys, bridges, parkways, and public utility easements.
The authorization to excavate for the construction, installation,
repair or maintenance of any type of facility within the right-of-way.
A work activity that makes no material change to the facilities
and does not disrupt traffic.
A person, its successors and assigns, that uses the right-of-way
for purposes of work, excavation, provision of services, or to install,
construct, maintain, repair facilities thereon, including, but not
limited to, landowners and service providers.
A commodity provided to a person by means of a delivery system
that is comprised of facilities located or to be located in the right-of-way,
including, but not limited to, gas, telephone, cable television, internet
services, open video system, alarm systems, steam, electric, water,
telegraph, data transmission, petroleum pipelines, or sanitary sewerage.
Any person owning, possessing or having an interest in facilities
in the right-of-way that are used for the provisions of a service
for or without a fee; provided, that this definition shall also include
persons owning, possessing or having an interest in facilities in
the right-of-way that are used by, may be used by or are intended
for use by another person, in whole or in part, to provide a service
for or without a fee, regardless of whether the actual facility owner
provides any service as defined herein.
The pavement and sub-grade of a City residential, collector
or arterial roadway.
[Ord. No. 1017, 8-1-2018]
A.
It is the policy of the City to authorize any ROW-user to utilize
the right-of-way in a competitively neutral, non-discriminatory manner
that maximizes the efficient use of and conserves the right-of-way
and minimizes the burden on the right-of-way, physically and aesthetically.
Any use of the right-of-way by a ROW-user shall be subject to the
terms and conditions hereof, in addition to other applicable Federal,
State or local requirements.
B.
The right granted to the ROW-user to use the right-of-way is limited
to the use that the ROW-user has filed with the City in accordance
with this Chapter. These rights are for the exclusive use of the ROW-user
except where otherwise provided herein, or when authorized by the
City.
C.
This Chapter also is designed to regulate occupancy and excavations
in the right-of-way by providing, among other things, for the issuance
of permits which grant the authority to utilize and occupy the right-of-way
within the City.
D.
All ROW-users shall be subject to all rules, regulations, policies,
resolutions, and articles 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 ROW-users 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 right-of-way.
[Ord. No. 1017, 8-1-2018]
A.
The Public Works Director is the principal City official for administration
of right-of-way permits for work and excavations made in the right-of-way.
The Public Works Director may delegate any or all of the duties hereunder.
B.
The City Clerk is the principal City official responsible for administration
of the registering of a service provider. The City Clerk may delegate
any or all of the duties hereunder.
[Ord. No. 1017, 8-1-2018]
A.
All service providers within the City, including existing service
providers, shall register and thereafter maintain current registration
after the effective date of this Chapter. Current registration means
that all information and status requirements of this Section shall
be current at least as recently as of the end of the previous calendar
year.
B.
Any person who is not an existing service provider prior to the effective
date of this Chapter and who wishes to become a service provider must
first register with the City.
C.
The service provider shall report any changes in its registration
information within thirty (30) days.
D.
No service provider shall be authorized to utilize the right-of-way
in any capacity or manner without registering and obtaining the necessary
right-of-way permit from the City.
E.
The information required for registration includes the following:
1.
Identity and legal status of service provider, including related
affiliates.
2.
Name, address, telephone number, fax number and email address
of officer, agent or employee responsible for the accuracy of the
registration statement.
3.
Name, address, telephone number, tax number and email address
of the local representative of the service provider who shall be available
at all times to act on behalf of the service provider in the event
of an emergency.
4.
Proof of any necessary permit, license, certification, grant,
registration, franchise agreement or any other authorization required
by any appropriate governmental entity.
5.
Description of the service provider's intended use of the
right-of-way.
6.
Information sufficient to determine whether the service provider
is or is not subject to franchising by Missouri law.
7.
Information sufficient to determine that the service provider
has applied for and received any permit or other approvals required
by the FCC.
8.
Such other information as may be reasonably required by the
City to complete the registration statement.
F.
Each service provider shall designate a local person familiar with
the facilities who will act as a local agent for the service provider
and will be responsible for satisfying information requirements of
this Chapter. The service provider shall present to the City the agent's
name, address, telephone number, fax number and email address. The
agent shall be the person to whom relocation notices and other such
notices shall be sent, and with whom rests the responsibility to facilitate
all necessary communications. The service provider shall be responsible
for all costs incurred by the City due to the failure to provide such
information to the City.
G.
Prior to construction, reconstruction, repair, maintenance, or relocation
of facilities owned by the service provider in the right-of-way, the
service provider shall first obtain the necessary right-of-way permit
as provided hereafter. The service provider shall make a good faith
effort to notify any adjacent property owners of work to be completed.
H.
Prior to providing service to the City and its residents, the service
provider shall first obtain the necessary franchise agreement, if
any, from the City.
I.
The service provider shall participate in any joint planning, construction
and advance notification of right-of-way work, including coordination
and consolidation of street cut work as directed by the Public Works
Director. In addition, the service provider shall cooperate with other
service providers and the City for the best, most efficient, most
aesthetic and least obtrusive use of the right-of-way, consistent
with safety, and to minimize traffic and other disruptions, including
street cuts.
J.
The service provider shall furnish maps showing the location of facilities
of the service provider within the City as provided hereafter.
K.
The City shall not exercise its authority under this provision to
in any way deter competition or discriminate against any service provider.
[Ord. No. 1017, 8-1-2018]
A.
The service provider shall keep and maintain accurate records and
as-built drawings depicting accurate location of all its facilities
constructed, reconstructed and/or relocated in the right-of-way.
B.
Within ten (10) days of a request by the City, the service provider
will provide to the City information concerning such facilities as
may be reasonably requested, including but not limited to, number,
size and/or locations of existing facilities.
C.
Underground facilities shall be differentiated from overhead facilities
and surface-mounted facilities.
D.
Such mapping and identification shall be at the sole expense of the
service provider.
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Except as provided hereafter, the service provider shall not
sell, transfer, lease, assign, sublet or dispose of its facilities,
or any portion thereof, that is located in City right-of-way, or any
right, title or interest in the same, or the transfer of any rights
granted by the City to any person either by forced or involuntary
sale, or by ordinary sale, consolidation or otherwise, without notice
to the City. 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 service providers. 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 service
provider.
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[Ord. No. 1017, 8-1-2018]
A.
The ROW-user's use of the right-of-way shall in all matters
be subordinate to the City's use or occupation of the right-of-way.
The City may reserve sufficient space within the right-of-way for
future public improvements. Without limitation of its rights, the
City expressly reserves the right to exercise its governmental powers
now and hereafter vested in or granted to the City.
B.
The ROW-user shall coordinate the placement of facilities in a manner
which 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 American Public Works Association (APWA) standards.
C.
The ROW-user shall consider any request made by the City concerning
placement of facilities in private easements in order to limit or
eliminate future street improvement relocation expenses or to address
aesthetic concerns.
D.
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 work in connection with its facilities,
avoid, so far as may be practicable, disrupting or interfering with
the lawful use of the right-of-way or other public lands of the City.
E.
All facilities of the ROW-user shall be placed so that they do not
interfere with the use of right-of-way and public lands. The City,
through its Public Works Director, shall have the right to consult
and review the location, design and nature of the facility prior to
its being installed. The designer is responsible for complying with
the stipulations noted in this Chapter.
F.
Whenever reasonably possible, all newly constructed facilities shall
be located underground and concealed. The ROW-user shall comply with
all requirements of the City relating to underground facilities. This
requirement may be waived by the Public Works Director at his/her
discretion for safety concerns, or some other good cause under the
condition that does not cause discrimination among ROW-users. If this
requirement is waived, the facilities shall be located as directed
by the Public Works Director, including, but not limited to, requirements
regarding location and height.
G.
The ROW-user shall not interfere with the facilities of the other
ROW-users without their permission. If and when the City requires
or negotiates to have a service provider cease using its existing
poles and to relocate its facilities underground, all other service
providers using the same poles shall also relocate their facilities
underground at the same time.
H.
The Public Works Director may assign specific corridors within the
right-of-way, or any particular segment thereof as may be necessary,
for each type of facility that is currently or, pursuant to current
technology, the Public Works Director expects will someday be located
within the right-of-way. All right-of-way permits issued by Public
Works Director shall indicate the proper corridor for the ROW-user's
facilities. Any ROW-user whose facilities are currently in the right-of-way
in a position at a variance with the designated corridors shall, no
later than at the time of next reconstruction or excavation of the
area where its facilities are located, move the facilities to its
assigned position within the right-of-way, unless this requirement
is waived by Public Works Director for good cause shown, upon consideration
of such factors as the remaining economic life of the facilities,
public safety, user service needs and hardship to the ROW-user.
I.
If, in the preparation and planning of a right-of-way project, the
Public Works Director deems it appropriate for a conduit to be constructed
along, across or under the right-of-way, the Public Works 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 right-of-way, the Public Works Director
may require the ROW-user to use such conduit, and to contribute to
the expense of such conduit, provided, however, the ROW-user use of
the conduit is reasonable and appropriate under the circumstances.
J.
All earth, materials, sidewalks, paving, crossings, utilities, other
public improvements 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 City. Upon determination by the Public Works Director that such
repair or replacement is a public safety matter, all such repair or
replacement shall be commenced within twenty-four (24) hours of notice
from the City, or the Public Works Director may direct the City to
make such repair or replacement and bill the ROW-user for the City
cost. The Public Works Director has the authority to inspect the repair
or replacement of the damage, and if necessary, to require the ROW-user
to do any necessary additional work.
K.
All technical standards governing construction, reconstruction, installation,
operation, testing, use, maintenance, and dismantling of a ROW-user's
facilities in the right-of-way shall be in accordance with applicable
Federal, State and local law and regulations, including those promulgated
by national trade associations commonly associated with the service
provided by the ROW-user. It is understood that the standards established
in this paragraph are minimum standards and the requirements established
or referenced in this Chapter may be in addition to or stricter than
such minimum standards. A ROW-user shall not construct or reconstruct
any of its facilities located upon, over, under or within the City
right-of-way without first having submitted, in writing, a description
of its planned improvement to the Public Works Director and having
received a permit for such improvement. The Public Works Director
may require that any drawings, plans and/or specifications submitted
be certified by a Missouri registered professional engineer stating
that such drawings, plans and/or specifications comply with all applicable
technical codes, rules and regulations, unless such plans are based
directly on nationally recognized codes, which are appropriately cited,
and attested to on the plans by the signature of an authorized official
of the organization applying for the permit.
L.
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 horizontal and vertical
location of its facilities located within the right-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.
M.
The City shall have the authority to prohibit the use or occupancy
of a specific portion of the right-of-way by a ROW-user due to public
health, safety or welfare considerations.
N.
At no location shall any flush or ground surface-mounted fixtures
be located more than five (5) feet from a property line that abuts
other private property unless agreed upon by the City.
O.
Unless otherwise approved by the Board of Aldermen, the following
shall govern: No flush or above ground boxes or similar elements larger,
wider, taller, or more numerous than existing service provider installation
unless agreed upon by the City through an alternative arrangement;
provided, however, no above ground box or similar element shall be
larger than ten (10) inches wide by ten (10) inches deep by twenty-eight
(28) inches high in the right-of-way. Further, that above ground boxes
no larger than thirty-four (34) inches wide by thirty-four (34) inches
high by sixteen (16) inches deep may be allowed in public utility
easements located at the side or rear property lines of any lot so
long as the box is located no closer to the street than within five
(5) feet of a building setback line (either platted or required by
the zoning regulations); and provided, further, that in approving
a right-of-way permit, the City Clerk shall require that the box be
located in a public utility easement located in the rear yard whenever
possible or, when not possible and with the approval of the City,
on public property that is within five (5) feet from a property line
that abuts private property.
[Ord. No. 1017, 8-1-2018]
A.
The ROW-user shall promptly remove, relocate or adjust any facilities
located in the right-of-way as directed by the City for a public improvement
or when reasonably required by the City by reason of public health,
safety and welfare. Such removal, relocation, or adjustment shall
be performed by the ROW-user at the ROW-user's 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 relocations
at due diligence upon notice by the City to begin relocation.
B.
The ROW-user shall promptly remove, relocate or adjust any facilities
located in a private easement, as directed by the City, for a public
improvement, at City expense, by moving such facilities to areas within
the expanded right-of-way or within remaining private easements or
remaining portions of such easements not condemned by nor disclaimed
to the City to avoid conflict with City construction and improvements.
The ROW-user shall disclaim those parts of its easements which lie
within the expanded right-of-way. Should the City, in the future,
elect to require the ROW-user to again relocate its facilities to
other areas within the expanded right-of-way, the cost of any such
future relocation shall be borne by the City.
C.
As soon as working drawings are available for public improvements
which will require the ROW-user to relocate its facilities, the City
shall provide the ROW-user with written notice of relocations and
the anticipated bid letting date of said improvement. The ROW-user
shall respond with any conflicts and a proposed construction schedule
within thirty (30) days.
D.
Following notice by the City in the form of the delivery of final
design plans for such public improvements, the ROW-user shall remove,
and relocate its facilities in accordance with the mutually agreed
upon schedule, 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 to clear construction in accordance
with project plans provided by the City.
E.
Any damages suffered by the City, its agents or its contractors to
the extent caused by ROW-user's failure to timely relocate or
adjust its facilities, or failure to properly relocate or adjust such
facilities, shall be borne by the ROW-user.
F.
In the event the ROW-user is required to move its facilities in accordance
with this Section, any ordinary right-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.
[Ord. No. 1017, 8-1-2018]
A.
It shall be the responsibility of the ROW-user to take adequate measures
to protect and defend its facilities in the right-of-way from harm
and damage, and shall maintain its facilities in good condition.
B.
The City shall not be liable for any damage to or loss of any of
the ROW-user's facilities within the right-of-way as a result
of or in connection with any construction, excavation, grading, filling
or work of any kind, including public improvements by or on the behalf
of the City, except to the extent allowed under Missouri law.
C.
The ROW-user shall be responsible to the City and its agents, representatives,
and authorized contractors for all damages suffered by them, including,
but not limited to, delay damages, repair costs, construction delays,
penalties or other expenses of any kind arising out of the failure
of the ROW-user to timely perform any of its obligations under this
Chapter to the extent caused by the acts or omissions of the ROW-user.
D.
The City or its authorized contractors shall be responsible for taking
reasonable precautionary measures including calling for facility locations
when constructing its public improvements.
E.
Any ROW-user who for any purpose makes or causes to be made any excavation
in, upon, under, through or adjoining any street, sidewalk, alley
or other right-of-way, and shall leave any part or portion thereof
open, or shall leave any part or portion thereof disrupted with rubbish,
building or other material during construction and/or the night time,
shall cause the same to be enclosed with good substantial and sufficient
barricades or drums equipped with the appropriate type warning lights
and orange safety fencing material which is properly secured around
the excavation or the disruption.
F.
Whenever a ROW-user shall excavate the full width of any street,
sidewalk, alley, driveway approach or other right-of-way, it shall
be its duty to maintain an adequate passage for vehicles and pedestrians
across or around the excavation until it is refilled as specified.
G.
Any excavation left open overnight on any thoroughfare or collector
type street shall be securely covered. 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.
H.
The Public Works Director, upon the review and approval of a plan
and details for trimming trees in the right-of-way, may grant permission
by permit to any ROW-user to trim trees upon and overhanging the right-of-way
so as to prevent the branches of such trees from coming in contact
with the facilities of the ROW-user.
I.
In the event the ROW-user severely disturbs or damages the root structure
of any tree in the right-of-way to the detriment of the health and
safety of the tree, the ROW-user will be required to remove and replace
the tree at the ROW-user's cost. Further, in review of the ROW-user's
plan, the Public Works Director may require the ROW-user to directionally
bore around any tree in the right-of-way.
J.
Upon the appropriate request of any person having satisfied City
procedure and ordinances, the ROW-user shall remove, raise, or lower
its facilities temporarily to permit the moving of houses or other
structures. The expense of such temporary removal, raising or lowering
shall be paid by the person 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 person detailing
the time and location of the moving operations, and not less than
twenty-four (24) hours' advance notice from the person advising
of the actual operation.
[Ord. No. 1017, 8-1-2018]
A.
If the City vacates a right-of-way which contains the facilities
of the service provider, and if the vacation does not require the
relocation of the service provider's facilities, the City shall
reserve, to and for itself and all service providers having facilities
in the vacated right-of-way, an easement for the right to install,
maintain and operate any facilities in the vacated right-of-way and
to enter upon such vacated right-of-way at any time for the purpose
of reconstructing, inspecting, maintaining or repairing the same.
B.
If the vacation requires the relocation of facilities; and
1.
If the vacation proceedings are initiated by the service provider,
the service provider must pay the relocation costs.
2.
If the vacation proceedings are initiated by the City, the service
provider must pay the relocation costs unless otherwise agreed to
by the City and the service provider.
3.
If the vacation proceedings are initiated by a person other
than the service provider or the City, such other person must pay
the relocation costs.
[Ord. No. 1017, 8-1-2018]
A.
A ROW-user owning abandoned facilities in the right-of-way must either:
1.
Remove its facilities and replace or restore any damage or disturbance
caused by the removal at its own expense. The Public Works Director
may allow underground facilities or portions thereof to remain in
place if the Public Works 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 vacated facilities left in place;
2.
Provide information satisfactory to the City that the ROW-user's
obligations for its facilities in the right-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 Section, 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.
B.
Facilities of a ROW-user 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 ROW-user, 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, (a) abating the
nuisance, (b) taking possession and ownership of the facility and
restoring it to a usable function, or (c) requiring the removal of
the facility by the ROW-user.
[Ord. No. 1017, 8-1-2018]
A.
Except as otherwise provided, no ROW-user may excavate any right-of-way
or conduct any repair, construction, or reconstruction of facilities
located within the right-of-way without first having obtained the
appropriate right-of-way permit. Failure to obtain the appropriate
right-of-way permit shall result in the assessment of a penalty equal
to the amount of the permit fee.
C.
No person owning or occupying any land abutting on a public right-of-way
shall construct, maintain, or permit in or on the portion of the public
right-of-way to which such land is adjacent, any fixed structure,
material or object without having obtained the appropriate right-of-way
permit.
D.
A right-of-way permit is required for emergency situations. If due
to an emergency it is necessary for the ROW-user to immediately perform
work in the right-of-way, and it is impractical for the ROW-user to
first get the appropriate permit, the work may be performed, and the
required permit shall be obtained as soon as possible during the next
City working day.
E.
No permittee may excavate the right-of-way beyond the date or dates
specified in the right-of-way permit unless the permittee:
F.
Right-of-way permits issued shall be conspicuously displayed by the
permittee at all times at the indicated work site and shall be available
for inspection by the Public Works Director, other City employees
and the public.
G.
All excavations by the permittee shall have a metal marker inserted
into the excavation of the restored pavement, which shall identify
the ROW-user.
H.
Before receiving a right-of-way permit, the applicant must show proof
of any necessary permit, license, certification, grant, registration,
franchise ordinance or any other authorization required by any appropriate
governmental entity.
I.
Any ROW-user who is found to be working in the public right-of-way
without a permit will be directed to stop work until a permit is acquired
and properly posted at the work site. The only exception allowed is
for emergency repair work.
J.
Any permittee 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.
[Ord. No. 1017, 8-1-2018]
A.
Application for a right-of-way permit shall be submitted to the City
Clerk by either the ROW-user or by the person who will do the work
and/or excavation in the right-of-way.
B.
Right-of-way applications shall contain and be considered complete
only upon receipt of the following:
1.
Compliance with verification of registration;
2.
Submission of a completed permit application form, including
all required attachments and scaled drawings showing the location
and area of the proposed project including all items specified in
this Section and the location of all existing and proposed facilities
at such location;
3.
A traffic control plan; and
4.
Payment of all money due to the City for permit fees and costs,
for prior excavation costs, for any loss, damage or expense suffered
by the City because of the applicant's prior excavations of the
right-of-way or for any emergency actions taken by the City, unless
the payment of such money is in dispute and timely appealed as provided
hereafter.
[Ord. No. 1017, 8-1-2018]
A.
The permittee shall obtain and maintain insurance coverage at its
sole expense, with financially reputable insurers that are licensed
to do business in the State of Missouri. Should grantee elect to use
the services of an affiliated captive insurance company for this purpose,
that company shall possess a certificate of authority from the Missouri
Insurance Commissioner. Grantee shall provide not less than the following
insurance:
1.
Workers compensation as provided for under any workers compensation
or similar law in the jurisdiction where any work is performed with
an employers' liability limit equal to the amount required by
law.
2.
Commercial general liability, including coverage for contractual
liability and products completed operations liability on an occurrence
basis and not a claims-made basis, with a limit of not less than two
million dollars ($2,000,000.00) combined single limit per occurrence
for bodily injury, personal injury, and property damage liability.
The City shall be included as an additional insured with respect to
liability arising from grantee's operations under this agreement.
3.
Commercial automobile liability, in the amount of no less than
one million dollars ($1,000,000.00) combined single limit, bodily
injury and property, including all owned, hired and non-owned vehicles.
The City shall be included as an additional insured with respect to
liability arising from grantee's operations under this agreement.
B.
As an alternative to the requirements of section 816 number 5 [subsection
13-816(a)], grantee may demonstrate to the satisfaction of the City
that it is self-insured and as such grantee has the ability to provide
coverage in an amount not less than one million dollars ($1,000,000.00)
per occurrence and two million dollars ($2,000,000.00) in aggregate,
to 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 occasioned by grantee, or alleged to so have been caused or
occurred.
C.
The permittee shall at all times during the term of the permit and
for two (2) years thereafter, maintain a performance and maintenance
bond in a form approved by the City Attorney. The amount of the bond
will be five thousand dollars ($5,000.00) or the value of the restoration,
whichever is greater, for a term consistent with the term of the permit
plus two (2) additional years, conditioned upon the permittee's
faithful performance of the provisions, terms and conditions conferred
by this Chapter. An annual bond in an amount of fifty thousand dollars
($50,000.00) automatically renewed yearly during this period shall
satisfy the requirement of this Section. 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.
E.
No performance and maintenance bond or liability insurance will be
required of any governmental entity, or of any residential property
owner working in the right-of-way adjacent to his/her residence, who
does not utilize a contractor to perform the excavation.
[Ord. No. 1017, 8-1-2018]
A.
The right-of-way permit fee shall be recommended by the City Clerk,
approved by the Governing Body and listed in the Schedule of Fees
maintained in the City Clerk's office.
B.
The right-of-way permit fee may include a permit and inspection fee
and an excavation fee.
C.
Fees paid for a right-of-way permit which is subsequently revoked
by the City are not refundable.
D.
Except as provided for in an emergency situation, when a ROW-user
is found to have worked or is working in the right-of-way without
having obtained a permit, the fee for the permit will be double the
amount had the ROW-user obtained a permit prior to beginning work.
[Ord. No. 1017, 8-1-2018]
A.
If the City Clerk determines that the applicant has satisfied the
requirements of this Chapter, the Public Works Director shall issue
a right-of-way permit.
B.
The City Clerk may impose reasonable conditions upon the issuance
of a right-of-way permit and the performance of the permittee in order
to protect the public health, safety and welfare, to ensure the structural
integrity of the right-of-way, to protect the property and safety
of other users of the right-of-way, and to minimize the disruption
and inconvenience to the traveling public.
C.
When a right-of-way permit is requested for purposes of installing
additional facilities and the performance and maintenance bond for
additional facilities is reasonably determined to be insufficient,
the posting of an additional or larger performance and maintenance
bond for the additional facilities may be required.
D.
Issued permits are not transferable.
E.
If work is being done for the ROW-user by another person, a subcontractor
or otherwise, the person doing the work and the ROW-user shall be
liable and responsible for all damages, obligations, and warranties
herein described.
[Ord. No. 1017, 8-1-2018]
A.
The permittee shall not make any cut, excavation or grading of right-of-way
other than excavations necessary for emergency repairs without first
securing a right-of-way permit.
B.
The permittee shall not at any one (1) time open or encumber more
of the right-of-way than shall be reasonably necessary to enable the
permittee to complete the project in the most expeditious manner.
C.
The permittee shall, in the performance of any work required for
the installation, repair, maintenance, relocation and/or removal of
any of its facilities, limit all excavations to those excavations
that are necessary for efficient operation.
D.
The permittee shall not permit such an excavation to remain open
longer than is necessary to complete the repair or installation.
E.
The permittee shall notify the City no less than three (3) working
days in advance of any construction, reconstruction, repair, location
or relocation of facilities which would require any street closure
or which reduces traffic flow to less than two (2) lanes of moving
traffic for more than four (4) hours. Except in the event of an emergency
as reasonably determined by the permittee, no such closure shall take
place without notice and prior authorization from the City.
F.
Non-emergency work on arterial and collector streets may not be accomplished
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.
G.
All work performed in the right-of-way or which in any way impacts
vehicular or pedestrian traffic shall be properly signed, barricaded,
and otherwise protected at the permittee's expense. Such signage
shall be in conformance with the latest Edition of the Administration's
Manual on Uniform Traffic Control Devices, unless otherwise agreed
to by the City.
H.
The permittee shall be liable for any damages to underground facilities
due to excavation work prior to obtaining location of such facilities,
or for any damage to underground facilities that have been properly
identified prior to excavation. The permittee shall not make or attempt
to make repairs, relocation or replacement of damaged or disturbed
underground facilities without the approval of the owner of the facilities.
I.
Whenever there is an excavation by the permittee, the permittee shall
be responsible for providing adequate traffic control to the surrounding
area as found in the Administration's Manual on Uniform Traffic
Control Device. The permittee shall perform work on the right-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. In the
event the excavation is not completed in a reasonable period of time,
the permittee may be liable for actual damages to the City for delay
caused by the permittee pursuant to this Chapter.
J.
All facilities and other appurtenances laid, constructed and maintained
by the permittee 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 parties
and in accordance with applicable Statutes of the State of Missouri,
as well as the rules and regulations of the Missouri Corporation Commission
or any other local, State or Federal agency having jurisdiction over
the parties.
K.
Following completion of permitted work for new construction, the
permittee shall keep, maintain and provide to the City accurate records
and as-built drawings, drawn to scale and certified to the City as
accurately depicting the location of all utility facilities constructed
pursuant to the permit. When available to the permittee, maps and
drawings provided will be submitted in AUTOCAD.DNT or AUTOCAD.DWG
automated formats, if available, or in hard copy otherwise. The Public
Works Director may waive this requirement. Such information shall
be subject in all respects and shall have the benefit of protection
as set forth in the Section entitled "Mapping Requirements of Service
Provider" contained herein.
L.
The City may use the as-built records of the service provider's
facilities in connection with public improvements.
[Ord. No. 1017, 8-1-2018]
A.
The work to be done under the right-of-way permit and the repair
and restoration of the right-of-way as required herein must be completed
within the dates as specified in the permit. However, in the event
of circumstances beyond the control of the permittee or when work
was prohibited by unseasonable or unreasonable conditions, the Public
Works Director may extend the date for completion of the project upon
receipt of a supplementary application for a permit extension.
B.
All earth, materials, sidewalks, curbs, paving, crossing, utilities,
public improvement or improvements of any kind damaged or removed
by the permittee shall be fully repaired or replaced promptly by the
permittee at its sole expense and the reasonable satisfaction of the
City. The Public Works Director has the authority to inspect the repair
or replacement of the damage and, if necessary, to require the permittee
to do the additional necessary work. Notice of the unsatisfactory
restoration and the deficiencies found will be provided to the permittee
and a reasonable time not to exceed fifteen (15) days will be provided
to allow for the deficiencies to be corrected.
C.
After any excavation, the permittee shall, at its expense, restore
all portions of the right-of-way to the same condition or better condition
than it was prior, to the excavation thereof.
D.
In addition to repairing its own street cuts, the permittee must
restore any area within five (5) feet of the new street cut that has
previously been excavated, including the paving and its aggregate
foundations.
E.
If the permittee fails to restore the right-of-way in the manner
and to the condition required by the Public Works Director, or fails
to satisfactorily and timely complete all restoration, the City may,
at its option, serve written notice upon the permittee and its surety
that, unless within five (5) days after serving of such notice, a
satisfactory arrangement can be made for the proper restoration of
the right-of-way, the City shall immediately serve notice of failure
to comply upon the surety and the permittee, and the surety shall
have the right to take over and complete the work, provided, however,
that if the surety does not commence performance thereof within ten
(10) days from the date of notice, the City may take over the work
and prosecute same to completion, by contract or otherwise, at the
expense of the permittee, and the permittee and its surety shall be
liable to the City for any and all excess cost assumed by the City
by reason of such prosecution and completion.
F.
The permittee responsible for the excavation who leaves any debris
in the right-of-way shall be responsible for providing safety protection
in accordance with the latest Edition of the Manual of Uniform Traffic
Control Devices and any applicable Federal or State requirement.
G.
If an excavation cannot be back-filled immediately and left unattended,
the permittee shall securely and adequately cover the unfilled excavation.
The permittee has sole responsibility for maintaining proper barricades,
safety fencing and/or lights as required, from the time of the opening
of the excavation until the excavation is surfaced and opened for
travel.
H.
In restoring the right-of-way, the permittee guarantees its work
and shall maintain it for twenty-four (24) months following its completion.
During the twenty-four (24) months, the permittee shall, upon notification
from the Public Works Director, correct all restoration work to the
extent necessary, using any method as required by the Public Works
Director. Said work shall be completed within a reasonable time, not
to exceed thirty (30) calendar days, of the receipt of notice from
the Public Works Director (not including days during which work cannot
be done because of circumstances constituting Force Majeure or days
when work is prohibited as unseasonable or unreasonable). In the event
the permittee is required to perform new restoration pursuant to the
foregoing guarantee, the Public Works Director shall have the authority
to extend the guarantee period for such new restoration for up to
an additional twenty-four (24) months from the date of the new restoration,
if the Public Works Director determines any overt action by the permittee
not to comply with the conditions of the right-of-way permit and any
restoration requirements.
I.
The twenty-four (24) month guarantee period shall be applicable to
failure of the pavement surface as well as failure below the pavement
surface.
J.
Payment of an excavation fee shall not relieve the permittee of the
obligation to complete the necessary right-of-way restoration.
[Ord. No. 1017, 8-1-2018]
[Ord. No. 1017, 8-1-2018]
A.
A right-of-way permit shall only be valid for the area of the right-of-way
specified within the permit. No permittee may cause any work to be
done outside the area specified in the permit, except as provided
herein. Any permittee who determines that an area greater than that
which is specified in the permit must be excavated must do the following
prior to the commencement of work in that greater area: (a) make application
for a permit extension and pay any additional fees required thereby;
and (b) receive a new right-of-way permit or permit extension.
B.
A right-of-way permit shall be valid only for the dates specified
in the permit. No permittee may commence work before the permit start
date or, except as provided herein, may continue working after the
end date. If a permittee does not complete the work by the permit
end date, the permittee must apply for and receive a new right-of-way
permit or a permit extension for additional time. This supplementary
application must be submitted to the City prior to the permit end
date.
[Ord. No. 1017, 8-1-2018]
A.
Obtaining a right-of-way permit under this Chapter shall not relieve
the permittee of its duty to obtain any necessary permit, license,
certification, grant, registration, franchise ordinance or any other
authorization required by any appropriate governmental entity, and
to pay any fees required by any other City, County, State, or Federal
rules, laws, or regulations. A permittee shall perform all work in
full accord with any and all applicable engineering codes adopted
or approved by the parties and in accordance with applicable Statutes
of the State of Missouri, and the rules and regulations of any other
local, State or Federal agency having jurisdiction over the parties.
A permittee shall perform all work in conformance with all applicable
codes and established rules and regulations and shall be responsible
for all work done in the right-of-way pursuant to its permit, regardless
by whom the work is done by.
B.
Except in cases of an emergency or with approval of the Public Works
Director, no right-of-way way work may be done when conditions are
unreasonable for such work.
C.
A permittee 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. Private vehicles may not be parked within or next
to the permit area.
[Ord. No. 1017, 8-1-2018]
A.
The City Clerk may deny a permit or prohibit the use or occupancy
of a specific portion of the right-of-way to protect the public health,
safety and welfare, to prevent interference with the safety and convenience
of ordinary travel over the right-of-way, or when necessary to protect
the right-of-way and its users. The City Clerk, in his/her discretion,
may consider all relevant factors including but not limited to:
1.
The extent to which the right-of-way space where the permit
is sought is available;
2.
The competing demands for the particular space in the right-of-way;
3.
The availability of other locations in the right-of-way or in
other right-of-way for the facilities of the applicant;
4.
The applicability of any ordinance or other regulations that
affect location of facilities in the right-of-way;
5.
The degree of compliance of the applicant with the terms and
conditions of its franchise ordinance, this Chapter, and other applicable
ordinances and regulations;
6.
The degree of disruption to surrounding communities and businesses
that will result from the use of that part of the right-of-way;
7.
The balancing of costs of disruption to the public and damage
to the right-of-way, against the benefits to that part of the public
served by the construction in the right-of-way;
8.
Whether the applicant maintains a current registration with
the City; or
9.
Whether the issuance of a right-of-way permit for the particular
dates and/or time requested would cause a conflict or interferes with
an exhibition, celebration, festival, or any other event. In exercising
this discretion, the Public Works Director shall be guided by the
safety and convenience of anticipated travel of the public over the
right-of-way.
B.
Notwithstanding the above provisions, the City Clerk may in his/her
discretion issue a right-of-way permit in any case where the permit
is necessary to:
[Ord. No. 1017, 8-1-2018]
A.
Permittees hold right-of-way permits issued pursuant to this Chapter
as a privilege and not as a right. The City reserves its right, as
provided herein, to revoke any right-of-way permit, without refund
of the permit fee, in the event of a substantial breach of the terms
and conditions of any law or the right-of-way permit. A substantial
breach shall, include, but not be limited to, the following:
1.
The violation of any material provision of the right-of-way
permit;
2.
An evasion or attempt to evade any material provision of the
right-of-way permit, or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its citizens;
3.
Any material misrepresentation of any fact in the permit application;
4.
The failure to maintain the required bond or insurance;
5.
The failure to complete the work in a timely manner;
6.
The failure to correct a condition indicated on an order issued
pursuant to this Chapter;
7.
Repeated traffic control violations; or
8.
Failure to repair facilities damaged in the right-of-way.
B.
If the City Clerk determines that the permittee has committed a substantial
breach of any law or condition placed on the right-of-way permit,
the City Clerk shall make a written demand upon the permittee to remedy
such violation. The demand shall state that the continued violation
may be cause for revocation of the permit, or legal action, if applicable.
Further, a substantial breach as stated above, will allow the City
Clerk, in his/her discretion, to place additional or revised conditions
on the right-of-way permit, specifically related to the manner in
which the breach is cured by the permittee. Within five (5) calendar
days of receiving notification of the breach, permittee shall contact
the City Clerk with a plan, acceptable to the City Clerk, for correction
of the breach. Permittee's failure to contact the City Clerk,
permittee's failure to submit an acceptable plan, or permittee's
failure to reasonably implement the approved plan shall be cause for
immediate revocation of the right-of-way permit.
C.
If a right-of-way permit is revoked, the permittee 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. 1017, 8-1-2018]
A.
Any excavation, back filling, repair and restoration, and all other
work performed in the right-of-way shall be done in conformance with
the APWA standard.
B.
The permittee shall employ a testing laboratory as approved by the
Public Works Director, which shall certify the proper back-filling
on any street cut. The permittee shall pay all costs associated with
such testing. This provision shall be waived when flowable fill is
used as backfill or with the permission of the Public Works Director.
C.
The permittee shall notify the Public Works Director upon completion
of the authorized work permit.
D.
The permittee will notify the Public Works Director to schedule an
inspection at the start of back filling. Upon completion of all right-of-way
restoration activities, the permittee will schedule a closeout inspection.
E.
When any corrective actions required have been completed and inspected
to the Public Works Director's satisfaction, the two-year maintenance
period will begin.
F.
In addition to the required scheduled inspections, the Public Works
Director may choose to inspect the ongoing permitted work in the right-of-way
at any time to ensure that all requirements of the approved permit
are being met by the permittee.
G.
At the time of any inspection, the Public Works Director may order
the immediate cessation of any work, which poses a serious threat
to the life, health, safety, or well being of the public. The Public
Works Director may issue a citation to the permittee for any work
which does not conform to the applicable standards, conditions, code
or terms of the permit. The citation shall state that failure to correct
the violation will be cause for revocation of the permit.
[Ord. No. 1017, 8-1-2018]
A.
Whenever a person shall deem themselves aggrieved by any decision
or action taken by the City Clerk or Public Works Director, the person
may file an appeal to the Governing Body within ten (10) calendar
days of the date of notice of such decision or action.
B.
The person shall be afforded a hearing on the matter before the Governing
Body within thirty (30) days of filing the appeal.
C.
In cases of applicability or interpretation of the rules, the Governing
Body may revoke such decision or action taken by the City Clerk or
Public Works Director.
D.
In cases where compliance with such decision or action taken by the
City Clerk or Public Works Director would cause undue hardship, the
Governing Body 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 rules. The Governing Body shall give
due consideration to the purposes of the rules in preserving public
safety and convenience, integrity of public infrastructure, and the
operational safety and function of the public right-of-way.
E.
Pending a decision of the Governing Body, the order of the City Clerk
or Public Works Director shall be stayed, unless the City Clerk or
Public Works Director determines that such action will pose a threat
to public safety or the integrity of the public infrastructure.
[Ord. No. 1017, 8-1-2018]
A.
A ROW-user shall indemnify and hold the City and its officers and
employees harmless against any and all claims, lawsuits, judgments,
costs, liens, losses, expenses, fees (including reasonable attorney
fees and costs of defense), proceedings, actions, demands, causes
of action, liability and suits of any kind and nature, including personal
or bodily injury (including death), property damage or other harm
for which recovery of damages is sought, to the extent that it is
found by a court of competent jurisdiction to be caused by the negligence
of the ROW-user, any agent, officer, director, or their respective
officers, agents, employees, directors or representatives, while installing,
repairing or maintaining facilities in a public right-of-way. 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 ROW-user from its duty to defend against liability or its duty
to pay and judgment entered against the City, or its agents.
1.
If a ROW-user and the City are found jointly liable by a court
of competent jurisdiction, liability shall be apportioned comparatively
in accordance with the laws of this State without, however, waiving
any governmental immunity available to the City under State or Federal
law. This Section is solely for the benefit of the City and ROW-user
and does not create or grant any rights, contractual or otherwise,
to any other person or entity.
[Ord. No. 1017, 8-1-2018]
Each and every provision hereof shall be subject to acts of
God, fires, strikes, riots, floods, war and other circumstances beyond
the ROW-user's or the City's control.
[Ord. No. 1017, 8-1-2018]
This Chapter shall be construed in a manner consistent with
all applicable Federal, State, and local laws. Notwithstanding any
other provisions of this Chapter 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. 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.
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. 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 Chapter.
[Ord. No. 1017, 8-1-2018]
A.
Franchise Ordinance Required. Whenever under Missouri law a person
is required to obtain a franchise ordinance to enter upon or otherwise
use the City's right-of-way or to provide service to the City's
residents, no person shall in any manner construct any facilities
or otherwise use the right-of-way of the City without obtaining such
a franchise ordinance. Before a telecommunications local exchange
service provider provides local exchange service in the City, it must
enter into a valid franchise ordinance with the City. The requirements
of this Chapter are in addition to any provisions of a franchise ordinance.
B.
Applications, Fees, Regulations, Notices, Procedures For Franchise
Ordinances. The City Clerk shall: (a) develop appropriate application
requirements and forms for franchise ordinances and require that such
applications be completed by all persons who are required to obtain
a franchise ordinance; (b) establish and require the payment of a
one-time non-refundable application fee to offset the City's
costs associated with the review and approval of a franchise ordinance
provided that such fee reimburses the City for its reasonable, actual
and verifiable costs of reviewing and approving the franchise; and
(c) implement such other procedures as the City Clerk deems appropriate
under the circumstances to accomplish the purposes of this Chapter.
C.
Stop Work Order. In addition to any other remedies provided for in this
Chapter, the City Clerk may issue a stop work order to any person
who is required to have a franchise ordinance and who attempts to
use the right-of-way without having obtained authorization to do so
under the terms of such an ordinance or who is authorized by such
an ordinance to use the right-of-way, but who does not comply with
the terms of such ordinance or this Chapter. Upon receipt of such
an order, all work shall immediately cease until the City Clerk issues
an order allowing work to commence in accordance with the terms of
the applicable ordinance.
[Ord. No. 1017, 8-1-2018]
If any Section, Subsection, sentence, clause, phrase, or portion
of this Chapter is for any reason held invalid or unconstitutional
by any court or administrative agency of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent provision
and such holding shall not affect the validity of the remaining portions
hereof.
[Ord. No. 1017, 8-1-2018]
The City's failure to enforce or remedy any non-compliance
of the terms and conditions of this Chapter or of any permit granted
hereunder shall not constitute a waiver of the City's rights
nor a waiver of any person's obligation as herein provided.
[Ord. No. 1017, 8-1-2018]
A.
Any person or entity violating any provision of this Chapter 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
one thousand dollars ($1,000.00). Every day that this Chapter is violated
shall constitute a separate offense.
B.
The violation of any provision of this Chapter is hereby deemed to
be grounds for revocation of the permit and registration to operate
with the City.
C.
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 Chapter and shall be entitled to recover all
costs including legal fees incurred in enforcing this Chapter plus
all costs associated with reasonable, necessary restorative work.
In addition to any other remedies, the City Attorney may institute
injunction, mandamus or other appropriate action or proceeding to
prevent violation of this Chapter.
[Ord. No. 1017, 8-1-2018]
A.
In addition to any rights specifically reserved to the City by this
Chapter, 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 Chapter.
The City shall have the right to waive any provision of this Chapter
or any registration, permit or other authorization granted thereunder,
except those required by Federal or State law, if the City determines
as follows: (a) that it is in the public interest to do so; and (b)
that the enforcement of such provision will impose an undue hardship
on the person. 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.
B.
Notwithstanding anything to the contrary set forth herein, the provisions
of this Chapter 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 right-of-way.
