[Ord. No. 2958 §1(36-1), 2-21-2006; Ord. No. 3038 §4(1), 6-2-2008]
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.
The provisions of this Chapter shall be applied and interpreted to
ROW users, as defined herein, subject to the provisions of Sections
67.1830 to 67.1846, RSMo., inclusive.
[Ord. No. 2958 §1(36-2), 2-21-2006; Ord. No. 3038 §4(2), 6-2-2008]
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.
The specific person applying for and receiving a permit under
this Chapter.
A right-of-way disturbance permit which an applicant must
submit to obtain permission to conduct facilities work in, along,
across, over and under the City's right-of-way.
The City of Harrisonville, Missouri.
The City Administrator for the City of Harrisonville or his/her
designee.
Any act by which the 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 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 a disturbance.
Any conduit, duct, line, pipe, wire, hose, cable, culvert,
tube, pole, receiver, transmitter, satellite dish, micro call, Pico
cell, repeater, amplifier, structure 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 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 disturbance within the public rights-of-way, except for the
occasional replacement of utility poles and related equipment at an
existing general location that does not involve a street, curb and
gutter or sidewalk cut.
A permit granted by the City to do facilities work within
the public right-of-way.
A fee charged to recover the City's actual costs for an applicant's
facilities work in the rights-of-way including the costs of processing
permits, inspections and administration of this Chapter, excluding
legal fees relating to the interpretation or administration of this
Chapter including all such appeals. The permit fee shall be determined
annually and shall be available for review at City Hall.
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.
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 specifically dedicated easements obtained by utilities or private
easements in platted subdivisions or tracts.
Such persons and entities maintaining or installing facilities
in the public rights-of-way of the City that provide a service for
or without a fee including, but not limited to, every cable television
service provider, pipeline corporation, gas corporation, electrical
corporation, rural electric cooperative, telecommunications company,
water corporation, heating or refrigerating corporation or sewer corporation
under the jurisdiction of the Public Service Commission, and all other
persons or entities, whether public or private, installing or maintaining
facilities in the public rights-of-way of the City not otherwise expressly
exempted, provided that the term shall not include the City or its
departments except where otherwise required by law or incidental uses
authorized under this Chapter.
[Ord. No. 3038 §4(3), 6-2-2008]
A.
Requirements Of Agreement Or Franchise.
1.
Agreement or franchise required.
a.
Franchise. Except where otherwise authorized or
required by applicable law, no ROW user may construct, maintain, own,
control or use facilities in the public rights-of-way without a franchise
or ROW agreement with the City as provided herein. A franchise shall
be obtained in conformance with all applicable franchise procedures
for any ROW user seeking to use the public rights-of-way for purposes
of providing cable television service or distribution of electricity,
gas, water, steam, lighting or sewer public utility service in the
City.
b.
ROW agreement. A ROW agreement shall be required
for all other ROW users, except as provided herein or otherwise required
by law. Such agreements shall conform to all applicable law and requirements,
but shall not be subject to procedures applicable to franchises and
the City may, if appropriate, approve form agreements that may be
executed by the City Administrator in substantially the form approved.
c.
Incidental uses. Incidental uses of the public rights-of-way,
such as approved uses related to the adjacent property, may be permitted
without a franchise or ROW agreement pursuant to a special use permit
issued by the City. The City Administrator or his or her designee
may establish such application, requirements and conditions applicable
to such uses consistent with the purposes of this Chapter or as otherwise
established by law.
2.
Franchises and agreements non-exclusive — approval. The authority granted by the City in any agreement or franchise
shall be for non-exclusive use of the public rights-of-way. The City
specifically reserves the right to grant, at any time, such additional
agreements or other rights to use the public rights-of-way for any
purpose and to any other person, including itself, as it deems appropriate,
subject to all applicable law. The granting of an agreement or franchise
shall not be deemed to create any property interest of any kind in
favor of the ROW user. All franchises and agreements shall be approved
by ordinance of the Board of Aldermen on a non-discriminatory basis
provided that the applicant is in compliance with all applicable requirements.
Such franchises and agreements shall be deemed to incorporate the
terms of this Chapter and other applicable laws of the City, except
as may be expressly stated in such agreements and franchises.
3.
Lease required for use of public lands or facilities. Unless otherwise provided, use or installation of any facilities
in, on or over non-rights-of-way public property of the City, or on
utility poles or other facilities of the City shall be permitted only
if a lease agreement, pole attachment agreement or other separate
written approval has been negotiated and approved by the City Board
of Aldermen with such reasonable terms as the Board may require.
4.
Transferability. Except as provided in this Chapter
or as otherwise required by law, no franchise, agreement or permit
may be transferred without the written application to and consent
of the City based on the requirements and policies of this Chapter.
The City shall not unreasonably withhold its consent to transfer as
provided herein.
B.
Application For Franchise Or Agreement Required.
1.
Application. An application for franchise or ROW
agreement shall be presented to the City Administrator in writing
and shall include all such information as is required by this Section.
The ROW user shall be responsible for accurately maintaining the information
in the application during the term of any franchise or agreement and
shall be responsible for all costs incurred by the City due to the
failure to provide or maintain as accurate any application information
required herein.
2.
Application fee. An application fee for review,
documentation and approval of such agreement or franchise shall be
established by the City Administrator to recover any actual costs
anticipated and incurred by the City in reviewing, documenting or
negotiating such agreement or franchise, including reasonable legal
fees, provided that no costs, if any, of litigation or interpretation
of Sections 67.1830 or 67.1832, RSMo., shall be included if such inclusion
is prohibited by law as to that applicant. If the actual costs are
thereafter determined to be less than the application fee, such amount
shall be returned to the applicant after written request therefrom;
if the actual costs exceed the application fee, applicant shall, after
written notice from the City, pay such additional amount prior to
issuance by the City of any final approval. Nothing herein shall be
construed to prohibit the City from also charging reasonable compensation
for use of the public rights-of-way where such a fee is not contrary
to applicable law.
3.
Application form. A ROW user shall submit a completed
application for franchise or ROW agreement on such form provided by
the City, which shall include information necessary to determine compliance
with this Chapter including, but not limited to:
a.
Identity and legal status of the ROW user.
b.
Name, address, telephone number, fax number and e-mail address of
each officer, agent or employee responsible for the accuracy of the
application. Each officer, agent or employee shall be familiar with
the local facilities of the ROW user, shall be the person(s) to whom
notices shall be sent, and shall be responsible for facilitating all
necessary communications including, but not limited to, certification
to the City of any material changes to the information provided in
such completed application during the term of any franchise or agreement.
c.
Name, address, telephone number, fax number and e-mail address of
the local representative of the ROW user who shall be available at
all times to act on behalf of the ROW user in the event of an emergency.
d.
Proof of any necessary permit, license, certification, grant, registration,
franchise agreement or any other authorization required by any appropriate
governmental entity including, but not limited to, the Federal Communications
Commission or the Public Service Commission.
e.
Description of the ROW user's intended use of the public rights-of-way,
including such information as to proposed services, so as to determine
the applicable Federal, State and local regulatory provisions as may
apply to such user.
f.
A list of authorized agents, contractors and subcontractors eligible
to obtain permits on behalf of the ROW user. An application may be
updated to add such person(s) at the time of permit application if
the updated application is submitted by an authorized representative
of the ROW user.
g.
Information sufficient to determine the amount of net assets of the
ROW user.
h.
Information sufficient to determine whether the ROW user is subject
under applicable law to franchising, service regulation, payment of
compensation for the use of the public rights-of-way, taxation or
other requirements of the City.
i.
Such other information as may be reasonably required by the City
to determine requirements and compliance with applicable regulations.
4.
Approval process. After submission by the ROW user
of a duly executed and completed application and application fee,
and executed franchise or ROW agreement as may be provided by the
City Administrator, or as modified by the City Administrator in review
of the specific circumstances of the application, all in conformity
with the requirements of this Chapter and all applicable law, the
City Administrator shall submit such franchise or agreement to the
Board of Aldermen for approval. Upon determining compliance with this
Chapter, the Board of Aldermen shall authorize execution of the franchise
or agreement (or a modified agreement otherwise acceptable to the
City consistent with the purposes of this Chapter), and such executed
franchise or agreement shall constitute consent to use the public
rights-of-way; provided that nothing herein shall preclude the rejection
or modification of any executed franchise or agreement submitted to
the City to the extent such applicable law does not prohibit such
rejection or modification, including where necessary to reasonably
and in a uniform or non-discriminatory manner reflect the distinct
engineering, construction, operation, maintenance, public work or
safety requirements applicable to the applicant.
5.
Appeals. Unless otherwise provided herein or by any other governing ordinance or law, any person aggrieved by a decision made pursuant to this Chapter, including a decision of the City Administrator under Section 530.030, shall, prior to seeking any judicial relief, file a written appeal of any such decision with the Board of Aldermen within fifteen (15) days of such decision specifying this provision and including specific details of the alleged claim or grievance and an evidentiary hearing shall be held on such appeal. Nothing herein shall deny any other applicable appeal remedy that may be granted by Federal or State law.
[Ord. No. 2958 §1(36-3), 2-21-2006; Ord.
No. 3568, 9-20-2021]
A.
Any
person desiring to conduct facilities work within the 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 first (1st) business day following the commencement
of the facilities work.
1.
All applications for permits shall be submitted to the City. The
City shall design and make available standard forms for such application,
requiring such information as the City determines to be necessary,
consistent with the provisions of this Chapter to accomplish the purposes
of this Chapter.
3.
The City 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, including but not limited to, performance bonds and proof of insurance, and has paid the appropriate fee, shall issue the permit, except as provided in Subsection (A)(4).
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 shall do the following:
a.
Evaluate the degree of disturbance necessary to perform the facilities
work. If the applicant can show to the Director of Public Works or
the Building Official, reasonable satisfaction that the facilities
work involves any of the following:
(1)
No significant disruption or disturbance to the public rights-of-way,
or
b.
For circumstances where the City 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 City may, consistent with Subsection (A)(3), direct the permit holders performing the 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 the projected start time and termination
date(s) or, if such dates are unknown at the time the permit is issued,
a provision requiring the permit holder to provide the City 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 may include conditions and requirements as are reasonably
necessary to protect structures and facilities in the public rights-of-way
from damage, including the designation of corridors within the rights-of-way
available for use by the applicant, 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 may deny a permit application, subject to, but not limited
to, the following reasons if deemed in the public's interest:
a.
Failure to return the right-of-way to its previous condition under
previous permits.
b.
Conflict with or disruption to existing utilities, transportation
or City use.
c.
The area is environmentally sensitive as defined by State or Federal
Statutes.
d.
Applicant's failure to provide required information.
e.
Applicant is in violation of any provision of this Chapter.
8.
Applicant may appeal any final decisions to the City Administrator.
Appeals shall be requested in writing and will be heard within sixty
(60) days.
9.
Applicant must pay the following fees and provide the following deposits, bonds and proof of insurance in accordance with Section 530.050 of this Chapter:
a.
Performance And Maintenance Bonds. The Director of Public Works or
the Building Official shall require the permittee to furnish a surety
bond, otherwise known as a performance and maintenance bond, equal
to the estimated cost of the work, except where authorization for
the construction of residential sidewalks and driveways within street
rights-of-way, required by ordinance, has been granted by their inclusion
in a building permit. The bond shall guarantee satisfactory performance
and completion of the work to the satisfaction of the Director of
Public Works or the Building Official within a time limit specified
on said special permit. The bond shall also guarantee maintenance
of the work performed for two (2) years. The City may consider a lump
sum biennial bond for multiple projects performed by utility companies
or their contractors, the cost of which shall be determined by the
number of projects and estimated total valuation of work.
For projects with valuation of work to be constructed or repaired
below five thousand dollars ($5,000.00) the permittee may at their
option deposit funds in the amount of the construction or repair to
the City to be held in escrow guaranteeing the performance and maintenance
of said work for a period of two (2) years. The minimum amount for
any bond, or deposit placed in escrow, shall be two thousand dollars
($2,000.00), no matter what the work valuation is.
b.
The applicant shall be required to furnish the City evidence of general
liability insurance in the amount of one million dollars ($1,000,000.00)
per occurrence and two million dollars ($2,000,000.00) per project
to insure and protect the City from all damage that may arise from
such disturbance prior to final acceptance by the City.
The City of Harrisonville shall have no duty to pay damages
unless the defenses of sovereign and governmental immunity are inapplicable.
Nothing in this Section shall reflect an intent by the City of Harrisonville
to waive any defenses of sovereign and governmental immunity.
c.
Right-of-way work permits applicable to this Chapter shall have a
fee collected, based on the dollar valuation of the work to be constructed
or repaired as specified in the City's Comprehensive Schedule of Fees,[2] except where authorization for the construction or repair
of residential sidewalks and driveways within street rights-of-way,
required by ordinance, has been granted by their inclusion in a building
permit.
[Ord. No. 3650, 5-1-2023]
|
Any fees collected pursuant to this Section will be used only
to reimburse the City for its actual costs of managing the rights-of-way.
|
[2]
Editor's Note: The Comprehensive Schedule of Fees is on file
in the City offices.
10.
Required ROW permit inspections shall be as determined by the Director
of Public Works or the Building Official and shall be listed on ROW
permits issued.
|
Required special inspections, by a City-approved 3rd party inspection
service, shall be as determined by the Director of Public Works or
the Building Official, and shall be listed on ROW permits issued.
Special inspections, may include, but not be limited to, fill compaction
and concrete testing.
|
[Ord. No. 2958 §1(36-4), 2-21-2006]
A.
Oversight Of Facilities Work.
1.
An applicant shall construct, operate and maintain facilities subject
to the supervision of all authorities of the City who have jurisdiction
in such matters and in strict compliance with this Chapter. All applicable
zoning and construction permitting ordinances and departmental rules
and regulations shall be followed.
2.
Facilities work shall be subject to periodic inspection by the City.
3.
The 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 more than thirty (30) days for compliance.
Stop work orders may be immediately enforced 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 Cass 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, at any time until the permit is secured, order the facilities
work ceased and do any of the following:
a.
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;
b.
Require such person to remove its property and restore the affected
area to a condition satisfactory to the City, or
c.
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 and in accordance with all traffic control measures including
the MUTCD (Manual of Uniform Traffic Control Devices).
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 as directed by 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.
The applicant shall be responsible for the costs incurred to repair
or replace existing facilities damaged by the applicant in the process
of placing facilities.
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 the laws of the State of Missouri and all
applicable local ordinances. Each contractor and 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 laws and shall be 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. 2958 §1(36-5), 2-21-2006]
A.
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 as necessary to ensure the applicant's faithful performance
of the facilities work. In lieu of a performance bond, the applicant
may provide an acceptable substitute.
B.
In
the event an applicant fails to complete the facilities work in a
safe, timely and competent manner, or in accordance with the permit,
there shall be recoverable, jointly and severable from the principal
and surety bond, any damages or loss suffered by the City, including
the cost to relocate improperly placed facilities, plus a reasonable
allowance for engineering and attorneys fees, up to the full amount
of the bond.
C.
Upon
completion of the facilities work to the satisfaction of the City,
the City shall eliminate the bond or reduce its amount after a time
appropriate to determine whether the work performed was satisfactory,
which shall be established by the City considering the nature of the
work performed.
D.
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 of written notice from the issuer of the bond
of intent to cancel or not to renew. Such notification shall be by
certified mail, return receipt requested."
|
E.
The
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 or omissions of the applicant
arising out of the construction and maintenance of these facilities.
F.
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. 2958 §1(36-6), 2-21-2006; Ord. No. 3038 §4(2), 6-2-2008]
A.
Severability. If any term, condition or provision of this
Chapter shall, to any extent, be held to be invalid or unenforceable.
In the event of a subsequent change in applicable law so that the
provision that has been 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.
B.
Annexation. The provisions hereof shall specifically apply
to any lands or property annexed as of the date of such annexation.
C.
Relocation Of Facilities. Whenever, by reason of changes
in the grade or widening of a street, or in the location or manner
of constructing water, sanitary sewer, storm water or electrical facilities
or other City-owned underground or above ground structures it is deemed
necessary by the City to move, alter, change, adapt or conform the
underground or above ground facilities of the user, the user shall
make the alterations or changes on alternative rights-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.
D.
Reserved.
[Ord. No. 3071 §1, 1-5-2009; Ord. No. 3226 §1, 1-7-2013; Ord.
No. 3374 §§ 1 – 2, 8-15-2016]
Attachment Fee Required. No person, other than
the City or a department thereof, shall attach or maintain any fixture
to or place on any utility pole or fixture or facility of the City
within City rights-of-way or easements without first executing a "City
of Harrisonville Pole Attachment License Agreement" hereafter known
as the "Agreement." City of Harrisonville Pole Attachment Agreement
is available at City Hall, City of Harrisonville, 300 E. Pearl Street,
Harrisonville, MO or City of Harrisonville Electric Department, 2108
Royal Street, Harrisonville, MO.
[Ord. No. 2958 §1(36-7), 2-21-2006]
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.
