[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.
- CITY ADMINISTRATOR
- 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.
- FACILITIES WORK
- 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.
- PERMIT FEE
- 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.
- PUBLIC RIGHTS-OF-WAY
- 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.
- ROW USER (RIGHTS-OF-WAY USER)
- 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]
Requirements Of Agreement Or Franchise.
Agreement or franchise required.
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.
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.
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.
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.
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.
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.
Application For Franchise Or Agreement Required.
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.
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.
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:
Identity and legal status of the ROW user.
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.
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.
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.
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.
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.
Information sufficient to determine the amount of net assets of the ROW user.
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.
Such other information as may be reasonably required by the City to determine requirements and compliance with applicable regulations.
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.
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]
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.
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.
Each such application shall be accompanied by payment of fees as designated in this Chapter.
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 (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:
Evaluate the degree of disturbance necessary to perform the facilities work. If the applicant can show to the City Engineer's reasonable satisfaction that the facilities work involves any of the following:
No significant disruption or disturbance to the public rights-of-way, or
For circumstances where the City determines that there will be significant excavation of the public rights-of-way and no exemption under Subsection (4)(a) or any other provision of this Section applies, the City may, consistent with Subsection (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.
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.
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.
The City may deny a permit application subject to, but not limited to, the following reasons if deemed in the public's interest:
Failure to return the right-of-way to its previous condition under previous permits.
Conflict with or disruption to existing utilities, transportation or City use.
The area is environmentally sensitive as defined by State or Federal Statutes.
Applicant's failure to provide required information.
Applicant is in violation of any provision of this Chapter.
Applicant may appeal any final decisions to the City Administrator. Appeals shall be requested in writing and will be heard within sixty (60) days.
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 deposit/bond of ten dollars ($10.00) per square foot of estimated disturbance area, but in no case shall such deposit be less than two thousand dollars ($2,000.00). Such deposit shall be returned ninety (90) days after the disturbance has been backfilled and after an inspection by the City. In lieu of such deposit for each disturbance permit, the applicant may file with the City a surety bond to insure payment for the repair of such disturbance prior to acceptance by the City. The City may consider a lump sum annual 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 square foot of disturbance.
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 acceptance by the City after backfilling. The City shall be named as an additional insured.
The applicant shall pay to the City for permits and inspections a fee of thirty-five dollars ($35.00).
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.
[Ord. No. 2958 §1(36-4), 2-21-2006]
Oversight Of Facilities Work.
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.
Facilities work shall be subject to periodic inspection by the City.
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.
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:
Require such person to apply for a permit within thirty (30) days of receipt of a written notice from the City that a permit is required;
Require such person to remove its property and restore the affected area to a condition satisfactory to the City, or
Take any other action it is entitled to take under applicable law, including, but not limited to, filing for and seeking damages for trespass.
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).
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.
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.
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.
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]
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.
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.
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.
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."
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.
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.
For each violation of the provisions of this Chapter or a permit granted pursuant to this Chapter, a fine shall be assessed at a rate not exceeding one hundred dollars ($100.00) per day that the violation exists.
[Ord. No. 2958 §1(36-6), 2-21-2006; Ord. No. 3038 §4(2), 6-2-2008]
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.
Annexation. The provisions hereof shall specifically apply to any lands or property annexed as of the date of such annexation.
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.
[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.