[1]
Editor's Note — Ord. no. 1729 §§I — II, adopted May 20, 2013, repealed sections 510.110 — 510.200 and art. V "regulation of rights-of-way" and enacted new provisions set out herein. Former sections 510.110 — 510.200 derived from ord. no. 1194 §I(410 — 500), 1-22-2001; ord. no. 1471 §II, 5-16-2005; ord. no. 1518 §§I — IV, 3-20-2006.
[Ord. No. 1729 §§I —
II, 5-20-2013]
To the extent permitted by law, this Article shall apply to
all persons desiring to construct, operate or maintain facilities
in, along, across or under public rights-of-way within the City.
[Ord. No. 1729 §§I —
II, 5-20-2013]
A.
Definitions And Usage — General. For the purposes
of this Article, the following terms, phrases, words and abbreviations
shall have the meanings given herein, unless otherwise expressly stated.
When not inconsistent with the context, words used in the present
tense include the future tense and vice versa, words in the plural
number include the singular number and vice versa and the masculine
gender includes the feminine gender and vice versa. The words "shall"
and "will" are mandatory and "may" is permissive. Unless otherwise
expressly stated or clearly contrary to the context, terms, phrases,
words and abbreviations not defined herein shall be given the meaning
set forth in the City Code and, if not defined therein, their common
and ordinary meaning.
B.
ADMINISTRATIVE OFFICER
APPLICANT
APPLICATION
BOARD OF ALDERMEN
BULK PROCESSING
CITY
CITY FACILITIES
CONTRACTOR
EMERGENCY
EXCAVATION
FACILITIES
FACILITIES OWNER
FACILITIES WORK
INDIVIDUAL SERVICE CONNECTION
NORMAL BUSINESS HOURS
PERMIT
PERMIT HOLDER
PERSON
PROBATION
PROBATIONARY PERIOD
PROJECT
PUBLIC RIGHTS-OF-WAY
SCHEDULE
For the purpose of this Article,
the following terms, phrases, words and abbreviations shall have the
meanings given herein, unless otherwise expressly stated.
An office or individual having specific authority to administer
the regulations of this Article.
The specific person applying for and receiving a permit for
facilities work.
That form designed by the City of Bowling Green, which an
applicant must use to obtain a permit to conduct facilities work within,
across, under and over the City's rights-of-way.
The Governing Body of the City of Bowling Green, Missouri.
The acceptance and review of one (1) application with multiple
projects to be conducted within a calendar year.
The City of Bowling Green, Missouri, and its agencies, departments,
agents and employees acting within their respective areas of authority.
Any pavement for streets, sidewalks, alleys, paths; any curbs,
gutters, drainage structures, storm sewers, swales, ditches, sanitary
sewers, manholes, water mains, water service lines, water meters,
valves, street lights, conduits, traffic signals, cables, conduits,
panels, irrigation systems, bridges, culverts, lift stations, pump
stations, treatment facilities, hydrants or signs in which the City
holds a property interest.
Any person contracting with a facilities owner or permit
holder to do work within the public rights-of-way.
A condition that:
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, tunneled,
uncovered, directional bored, removed or otherwise displaced by means
of any tools, equipment or explosives, except that any de minimis
displacement or movement of ground caused by pedestrian or vehicular
traffic which does not materially disturb or displace surface conditions
of the earth, asphalt, concrete, sand, gravel, rock or any other material
in or on the ground shall not be deemed excavation.
Any conduit, valves, meters, duct, line, pipe, wire, hose,
manhole, pullbox, fiber optic cable, cable, culvert, pole, receiver,
transmitter, satellite dish, microcell, repeater, amplifier or other
device, material, apparatus or medium usable (whether actually used
for such purpose or not) for the transmission or distribution of any
service or commodity installed below or aboveground within the public
rights-of-way of the City, whether used privately or made available
to the public.
A person who owns, leases or otherwise controls the use of
facilities.
The installation of new facilities or any change, replacement,
relocation, removal, alteration or repair of existing facilities that
requires excavation, excluding exploratory excavation to physically
locate facilities, within the public rights-of-way, except for the
occasional replacement of utility poles and related equipment at the
existing location that does not involve excavation.
Individual water and sewer taps permitted as part of a building
permit, and individual service connections from a supply line, wire
or cable for natural gas, electric, cable television, telecommunications,
or other services to a residence or business.
8:00 A.M. to 4:30 P.M. Central Standard Time, Monday through
Friday.
A permit granted by the City to do facilities work within
the public rights-of-way.
Any person to whom a permit has been granted by the City
under this Article.
Any individual, firm, partnership, association, corporation,
company, or organization of any kind, or any lawful successor thereto
or transferee thereof.
The status of a person that has not complied with the conditions
of this Article.
One (1) year from the date that a person has been notified
in writing that they have been put on probation.
A written plan of work prepared and presented to the City
by an applicant that encompasses an outlined scope of work to be conducted
within the public rights-of-way. A project could be one (1) or more
separate excavations, constructions, or installations within the public
rights-of-way, but included as part of a single plan.
The surface, the air space above the surface and the area
below the surface of any street, highway, lane, path, alley, sidewalk,
boulevard, drive, bridge, tunnel, parkway easement 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 warranty 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 do not include
the airwaves above the rights-of-way with regard to cellular or other
non-wire telecommunications or broadcast services or private easements
in platted subdivisions or tracts not dedicated to public use.
An outline prepared and presented by a facilities owner describing
all of its proposed facilities work which may affect public rights-of-way
for the following twelve (12) month period.
[Ord. No. 1729 §§I —
II, 5-20-2013]
A.
Permit Requirements. Any person desiring to conduct facilities
work within public rights-of-way must first apply for and obtain a
permit, in addition to any other building permit, license, easement
or authorization required by law, unless such facilities work must
be performed on any emergency basis as set forth in "Definitions:
Emergency". A permit shall be obtained for each project.
B.
Facilities Work Done Without A Permit.
1.
Emergency situations.
a.
Each person performing facilities work on an emergency basis shall
notify the City before any facilities work is performed if performed
during normal business hours, and the City of Bowling Green Police
Department if performed outside of normal business hours, of the location
of the work and shall apply for the required permit by the next business
day following the commencement of the facilities work, and fulfill
the rest of the requirements necessary to bring itself into compliance
with this Article.
b.
In the event that the City becomes aware of an emergency requiring
facilities work, the City shall attempt to contact a representative
of each facility owner affected, or potentially affected, by the emergency.
If no response is received by a particular facilities owner to whom
contact is attempted, the Administrative Officer may take whatever
action he/she deems necessary in order to respond to the emergency,
the cost of which shall be borne by the person whose action or inaction
occasioned the emergency.
2.
If not applied for on the next business day, except in the case of
an emergency, any person who, without first having obtained the necessary
permit, performs facilities work or excavation in a public right-of-way,
in addition to any other penalties provided for the violation of ordinances
of this City, must subsequently obtain a permit, pay double the normal
fees for said permit, deposit with the City all monies necessary to
repair any damage caused by the unauthorized facilities work or excavation
to the public rights-of-way, and comply with all of the requirements
of this Article and other City ordinances.
C.
Permit Applications.
1.
All applications for permits shall be submitted to the Administrative
Officer. The Administrative Officer shall design and make available
standard forms for such application, requiring such information as
the Administrative Officer determines to be necessary, in order to
be consistent with the provisions of this Article and to accomplish
the purposes of this Article.
2.
As a minimum, the application should have the following information:
a.
The names, addresses, telephone numbers and legal status of the applicant,
contractor and facilities owner.
b.
The name, address and telephone number of a responsible person whom
the City may notify or contact at any time concerning the applicant's
facilities work in, or on, the public rights-of-way.
c.
A site plan showing the proposed location of the facilities work
including manholes or overhead poles; the length, size, type and proposed
depth of any conduit, or any other enclosures; and the relationship
of the facilities to all existing streets; length of public rights-of-way;
the number of road crossings; the number of entrance drive crossings;
the location of City-owned facilities in the proximity, if known,
and the dimensions and character of any cut or excavation, and the
number of square feet to be resurfaced, if applicable.
d.
Each application should include the projected commencement and termination
dates of the facilities work or, if such dates are unknown at the
time the permit is issued, a provision requiring the permit holder
to provide the Administrative Officer with reasonable advance notice
of such dates once they are determined.
e.
As applicable, information sufficient for the City to determine that
the applicant has applied for and received any permit, operation license
or other right or approvals required by the Federal Communications
Commission or the Missouri Public Service Commission; provided however,
that after the applicant has once provided the foregoing information,
such information can be incorporated by reference in future applications
that require such information rather than having to provide such information
with every subsequent application.
f.
Certificates of insurance as required by the City.
g.
Any additional information that the Administrative Officer may require
which may include such conditions and requirements as are reasonably
necessary to protect structures and facilities in the public rights-of-way
from damage and for the proper restoration of such public rights-of-way,
structures and facilities, and for the protection of the public and
the continuity of pedestrian and vehicular traffic.
3.
The Administrative Officer's review and approval of the application
for permit does not relieve the applicant of responsibility for:
4.
The making and repairing of individual service connections in the
public rights-of-way shall require a separate permit if allowed as
part of a building permit issued by the City. All repairs to the public
rights-of-way made as a result of individual service connections shall
be in accordance with this Article and the City of Bowling Green technical
specification, as applicable.
5.
Upon approval of such application, and prior to commencement of facilities
work, payment of fees established shall be paid to the City.
6.
The Administrative Officer shall review each application for a permit
and, upon determining that the applicant has all requisite authority
to perform the desired facilities work, and that the applicant has
submitted all necessary information and has paid the appropriate fee,
shall issue the permit, except as provided in "Denial of Permits"
hereof. In order to avoid excessive processing and accounting costs
to either the City or the applicant, the Administrative Officer shall
have the authority to establish procedures for bulk processing of
applications and periodic payment of fees.
7.
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 Administrative Officer shall do the following:
a.
Evaluate the degree of excavation necessary to perform the facilities
work in the public rights-of-way and determine whether the proposed
excavation will be more than minor in nature. The Administrative Officer
or his/her designee shall grant a permit within ten (10) business
days for facilities work deemed minor in nature. If the applicant
can show to the Administrative Officer's reasonable satisfaction that
the facilities work involves time sensitive maintenance, then the
Administrative Officer or his/her designee shall grant the permit
within two (2) business days. In either instance if the permit is
not issued in ten (10) business days, the aggrieved party may appeal
to the Board of Aldermen as provided in "The Appeal Procedure" of
this Section, unless the applicant is submitting one (1) project application
for multiple excavations, construction or installations; and
b.
For circumstance where the Administrative Officer determines that
there will be significant facilities work of the public rights-of-way
and no exemption applies, the Administrative Officer may, consistent
with the time requirements set forth in this Section, direct permit
holders performing facilities work in the same area to consult on
how they may schedule and coordinate their work to accomplish the
goal of this Section.
8.
An applicant receiving a permit shall promptly notify the Administrative
Officer of any changes in the information submitted in the application.
9.
Each permit shall be valid for the number of days stipulated on the
permit. Permit holders may request an extension on the permit time
restriction in writing to the Administrative Officer. If the time
limit on the permit expires without approval of an extension, the
permit shall be considered terminated.
10.
The Administrative Officer or his/her designee shall maintain an
index of all applicants who have been granted permits and their contact
person.
11.
An applicant whose permit application has been withdrawn, abandoned
or denied for failure to comply with the terms and provisions of this
Article shall not be refunded the application fee.
D.
Denial Of Permits.
1.
Mandatory denial. Except in the case of an emergency,
the Administrative Officer shall deny an application for permit in
the following events:
a.
Facilities work is sought which requires excavation of any portion
of the paved public rights-of-way which was constructed or reconstructed
in the preceding five (5) years, or as determined by the Administrative
Officer, except in the cases of emergencies.
b.
The applicant, contractor or facilities owner owes undisputed past
due fees from prior permits.
c.
The applicant, contractor or facilities owner has failed to return
the public rights-of-way to its previous and acceptable condition
under previous permits.
d.
The facilities work will cause undue disruption to existing or planned
utilities, transportation, public or City use.
e.
The facilities work area is environmentally sensitive as defined
by State or Federal Statute or regulations.
f.
Applicant's failure to provide required information.
g.
Applicant's failure to provide City with required schedule, provided
however, that the failure of an applicant to include in the schedule
construction activities which were not anticipated at the time of
submitting the schedule will not constitute grounds for denial of
permit.
h.
Failure of applicant to list the project in the schedule, provided
however, that the failure of an applicant to include in the schedule
construction activities which were not anticipated at the time of
submitting the schedule will not constitute grounds for denial of
permit.
i.
The applicant is in violation of the provisions of this Article.
j.
Location of proposed facilities work would impede maintenance of
existing facilities.
k.
Failure to pay for damages caused to any City facilities from prior
facilities work by the applicant or facilities owner.
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If a permit is denied under this Section, the Administrative
Officer will cooperate with the applicant to identify alternative
routes which most nearly match the routes requested by applicant for
the placement of facilities.
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2.
Permissive denial. The Administrative Officer may
deny a permit in order to protect the public health, safety and welfare,
and to prevent interference with the convenience of ordinary travel
over the public rights-of-way and to its users. The Administrative
Officer in his/her discretion may consider one (1) or more of the
following factors:
a.
The extent to which public rights-of-way where the permit is sought
is available;
b.
The competing demands for the particular location in the rights-of-way;
c.
The availability of other locations in the rights-of-way or in other
rights-of-way for the facilities of the applicant;
d.
The degree of current compliance of the applicant with the terms
and conditions of its franchise and other applicable ordinances and
regulations;
e.
The condition and age of the public rights-of-way, and whether and
when it is scheduled for total or partial reconstruction;
f.
The balancing of the costs of disruption to the traveling public
and damage to the public rights-of-way against the benefits to that
part of the public served by the expansion into additional parts of
the public rights-of-way;
g.
Destruction of public or private plant material.
E.
Appeal Procedure. Applicant may appeal any final decision
of the Administrative Officer to the Board of Aldermen who shall consider
the appeal within thirty (30) days or at the next regularly scheduled
Board of Aldermen meeting.
F.
Applicable Fees.
1.
Any fees collected pursuant to this Section will be used only to
reimburse the City for its actual costs incurred in managing the public
rights-of-way and will not be used to generate revenues to the City
above such costs, excluding legal fees relating to the interpretation
or enforcement of this Article, including all appeals.
2.
The permit fee is fifty dollars ($50.00).
3.
Fees for private connections for water and sewer service shall be
in conformance with the City's water and sewer ordinances.
4.
All permit fees shall be doubled during a probationary period.
5.
Permit fees that were paid for a permit that the Administrative Officer
has revoked for a breach are not refundable.
G.
Revocation Of Permits.
1.
Permits issued pursuant to this Article are a privilege and not a
right. The City reserves its right, as provided herein, to revoke
any permit, without fee refund; in the event of a violation of the
terms and provisions of any applicable Statute, ordinance, rule or
regulation, or any condition of the permit. A violation of a permit
holder shall include, but shall not be limited to, the following:
a.
The violation of any material provision of the permit;
b.
An evasion or attempt to evade any material provision of the permit,
or the perpetration or attempt to perpetrate any fraud or deceit upon
the City with respect to the permit;
c.
Any material misrepresentation of fact in the application for a permit;
d.
The failure to maintain the required bonds and/or insurance;
e.
The failure to complete the facilities work in a timely manner; or
f.
The failure to correct or comply with a condition indicated on an
order.
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If the Administrative Officer determines that the permit holder
has committed a violation of any term or condition of any Statute,
ordinance, rule, regulation or any condition of the permit, the Administrative
Officer shall make a written demand upon the permit holder to remedy
such violation. The demand shall state that continued violation may
be cause for revocation of the permit and for the imposition of other
penalties as provided for by law. Further, a violation shall allow
the Administrative Officer, at his/her discretion, to place additional
or revised conditions in the permit.
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2.
Within three (3) business days of receiving notification of a violation,
the permit holder shall contact in writing the Administrative Officer
with a plan, acceptable to the Administrative Officer, for its correction.
Permit holder's failure to so contact the Administrative Officer,
or the permit holder's failure to submit an acceptable plan, or permit
holder's failure to reasonably implement the approved plan shall be
cause for immediate revocation of the permit. In addition to all other
penalties provided for herein, permit holder's failure to so contact
the Administrative Officer, or the permit holder's failure to submit
an acceptable plan, or permit holder's failure to reasonably implement
the approved plan shall automatically place the permit holder on probation
for one (1) full year.
3.
If permit holder, while on probation, commits a violation as outlined
above, permit holder's permit will automatically be revoked and permit
holder will not be allowed further permits for one (1) full year thereafter,
except for emergency repairs. Applicant may repeal any such revocation
to the Board of Aldermen. The Board of Aldermen may rescind revocation
of a permit upon payment of a fee of one thousand dollars ($1,000.00).
4.
If the permit is revoked, the permit holder shall also reimburse
the City for the City's reasonable costs, including restoration costs
and costs of collection incurred in connection with such revocation.
H.
Coordination Of Constructions Activities. All permit holders
are required to cooperate with the City and with each other as follows:
1.
By January fifteenth (15th) of each year, each permit holder shall
provide the Administrative Officer with a schedule of its proposed
construction activities which may affect the public rights-of-way
for the ensuring twelve (12) months. Failure to provide a schedule
on a timely basis may be considered in denial of a permit for the
ensuing twelve (12) months.
2.
Each permit holder shall meet with the Administrative Officer and
other permit holders, either quarterly or as determined by the Administrative
Officer, to schedule and coordinate facilities work.
[Ord. No. 1729 §§I —
II, 5-20-2013]
A.
Oversight Of Facilities Work.
1.
Permit holders shall comply with all City codes and ordinances.
2.
The permit holder shall at all times conduct operations and perform
the facilities work in a manner that will ensure the least possible
obstruction to traffic as outlined in and in accordance with the Manual
of Uniform Traffic Control Devices. The permit holder shall provide
temporary facilities where and when necessary to conveniently serve
pedestrian travel over or through obstructions at public walkways
and at locations designated in their application.
3.
The permit holder shall give all emergency service providers as well
as the City of Bowling Green three (3) working days' notice to arrange
for routing of emergency vehicles before streets are closed to traffic.
Access to fire hydrants shall not be obstructed without approval of
the Bowling Green Fire Chief.
4.
Unless for an emergency, no person shall make paving cuts or curb
cuts except after receiving approval of a permit therefore work within
the public rights-of-way shall generally be by tunneling, boring or
jacking.
5.
Facilities work shall be subject to periodic inspection by the City.
All excavation, alignment, depth, compaction and backfill materials
shall be subject to inspection by the City. Such inspection, however,
shall not relieve the permit holder from any obligation to perform
all of the facilities work strictly in accordance with requirements
of the plans and technical specifications submitted with the application.
6.
6. Utility lines such as phone cables, water mains, television cables
and electric cables should be exposed at cross points before any directional
boring process begins using hydro-excavation.
Special consideration is to be given to storm sewers, sewer
mains and laterals due to the inability to locate these types of lines.
Sewer mains and laterals shall be exposed in order to observe the
drill stem as it crosses to ensure clearance between pipeline and
sewer line.
[Ord. No. 1884, 12-17-2018] |
B.
Inspection And Final Acceptance.
1.
Approval of the facilities work, as provided for herein, shall not
relieve the permit holder of any financial liabilities imposed on
the permit holder, nor shall it constitute final acceptance for maintenance
by the City of the facilities work. Final acceptance of the facilities
work will not be made until one (1) calendar year after completion
of the facilities work and its reinspection to confirm its continued
compliance with the plans and technical specifications submitted with
the application.
2.
Within five (5) days following notification from the permit holder
that all facilities work has been completed, the Administrative Officer
will make an inspection of the entire facilities work site. If any
work is found to be unsatisfactory or incomplete, instructions for
correction will be issued and another inspection will be made after
the Administrative Officer receives notice that the corrections have
been carried out. Before final acceptance of the completed facilities
work, the permit holder shall remove all surplus and discarded materials,
equipment, rubbish and temporary structures.
C.
Unacceptable And Unauthorized Work.
1.
The Administrative Officer 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, summarized the unauthorized work and provide a period of not
longer than thirty (30) days to cure the problem unless a time extension
is approved by the Administrative Officer, which cure period may be
shortened 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 the permit, or to the person
in charge of the facilities work site at the time of delivery. Such
orders may be enforced by equitable action in the Circuit Court of
Pike County, Missouri, and if the City prevails in such case, the
person involved in the facilities work, by acceptance of the permit,
agrees to be liable for all costs and expenses incurred by the City,
including reasonable attorney's fees, in enforcing such order, in
addition to any and all penalties established in this Article.
2.
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 penalties provided in the Article.
Except in those instances where facilities work must be performed
on an emergency basis, the City may, in its discretion, at any time
until a permit is secured, order the facilities work ceased and do
any of the following:
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
public rights-of-way 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.
3.
Records. Facility owners that maintain more than
one thousand (1,000) lineal feet of facilities within the public rights-of-way
shall keep complete and accurate maps and records of the location
of their facilities and shall, within twelve (12) months of the passage
of this Article, file with the Administrative Officer a current base
map of those portions of their systems which lie within, run through,
or over public rights-of-way. Base maps furnished to the Administrative
Officer shall show the location of facilities and their relationship
to existing streets or public rights-of-way. Base map updates shall
be provided to the Administrative Officer annually by January fifteenth
(15th). Applicants shall submit updated plans to the Administrative
Officer for approval whenever a project involves new construction
of the excavation of public rights-of-way. Such maps are intended
to be proprietary to the owners of the facilities and not owned by
the City, but are provided for the internal use by the City. The City,
to the extent permitted by law, will not provide such maps to third
parties.
4.
Assignment of permit. The rights granted by a permit
inure to the benefit of applicant. The rights shall not be assigned,
transferred, sold or disposed of, in whole or in part, by voluntary
sale, merger, consolidation or otherwise by force or involuntary sale
without the prior, express written consent of the City. Any such consent
shall not be withheld unreasonably and shall not be required for assignment
to entities that control, are controlled by, or are under common control
with applicant.
5.
Termination of permit and removal of installations. Upon termination of a permit, the City may order the removal of
any of the applicant's facilities work performed under the permit,
and if applicant should refuse, the City may remove such work at applicant's
expense.
D.
Construction Standards.
1.
The construction, operation, maintenance, and repair of facilities
shall be in accordance with all applicable ordinances.
2.
All facilities shall be installed and located with due regard for
minimizing interference with the rights of the public, including the
City and other users of the public rights-of-way.
3.
All new facilities shall be constructed underground except for facilities
that are required to be located aboveground and except in areas that
have been designated as overhead corridors by the Administrative Officer.
In cases where facilities will be placed underground, the permit holder
shall give to all facility owners registered hereunder reasonable
written advance notice of the particular date on which open trenching
will be available for installation of facilities.
4.
Existing underground conduits or overhead facilities shall be used
whenever feasible and permitted by the owner thereof. No person may
erect new poles or similar structures within the public rights-of-way
without the prior, express written consent of the Administrative Officer.
5.
Applicant shall not place facilities where they will damage or interfere
with the use or operation of previously installed facilities, or obstruct
or hinder the various utilities serving the residents and businesses
in the City or their use of any public rights-of-way.
6.
The permit holder shall be responsible to inform the Administrative
Officer of any damage to City property. The permit holder shall be
responsible to inform any other facilities owners of possible damage
to their facilities. The permit holder is fully responsible for reimbursing
the facilities owners for damages caused by the permit holder's work
to facilities whose existence and approximate locations were known
or should have been known before the damage was done. Nothing in this
Article shall make the permit holder liable for damage to facilities
located below the ground surface, in the absence of negligence, if
the facility owner, after reasonable notice from the permit holder,
fails to advise the permit holder of its location and approximate
depth below the ground surface.
7.
In the discretion of the Administrative Officer, prior to directional
boring, critical existing City facilities shall be located by digging
a hole large enough to visually inspect the facilities at proposed
crossing locations. To prevent damage to existing facilities, the
boring operation shall be visually monitored during the placement
of new facilities.
8.
Any and all public rights-of-way or facilities disturbed or damaged
during the facilities work shall be promptly repaired or replaced,
or caused to be promptly repaired or replaced, to its previous condition
by the permit holder or, at the Administrative Officer's discretion,
by the City, at the permit holder's expense.
9.
Any contractor or subcontractor used for facilities work must be
properly licensed under laws of the State of Missouri and all applicable
local ordinances, and each contractor or subcontractor shall have
the same obligations with respect to its work as a permit holder would
have hereunder and shall be responsible for ensuring that the work
of contractors and subcontractors is performed consistent with its
permit and applicable law, shall be fully responsible for promptly
correcting acts or omissions by any contractor or subcontractor.
[Ord. No. 1729 §§I —
II, 5-20-2013]
A.
Performance Bond.
1.
Prior to any facilities work in the public rights-of-way, an applicant
shall establish in the City's favor a performance bond in an amount
determined as follows: five hundred dollars ($500.00) for less than
twenty (20) linear feet; five thousand dollars ($5,000.00) for twenty
(20) to one hundred (100) linear feet; and ten thousand dollars ($10,000.00)
for more than one hundred (100) linear feet. A single continuing bond
where facilities work is conducted by the same applicant under numerous
permits may be established in the amount of ten thousand dollars ($10,000.00).
For an applicant applying to work on less than twenty (20) linear
feet, a check made payable to the City of Bowling Green may be presented
to the City in lieu of a performance bond.
2.
In the event an applicant fails to complete the facilities work in
a safe, timely and competent manner, there shall be recoverable, jointly
and severally from the principal and surety of the bond, any damages
or loss suffered by the City as a result, plus a reasonable allowance
for attorney's fees, up to the full amount of the bond or letter of
credit.
3.
Upon completion of the facilities work to the satisfaction of the
the Administrative Officer, the Administrative Officer shall eliminate
the bond or reduce its amount after a time appropriate to determine
whether the work performance was satisfactory, which time shall be
established by the Administrative Officer considering the nature of
the work performed.
4.
A performance bond shall be issued by a surety acceptable to the
City and shall contain the following endorsement:
"This bond may not be canceled or allowed to lapse until sixty
(60) days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
5.
In the event that an excavation is not refilled within a reasonable
time after it is ready for refilling, the Administrative Officer shall
notify the permit holder making the excavation that if such excavation
is not filled within four (4) days, it shall be filled by the City.
The charge for the cost of such work shall be paid by the permit holder
within ten (10) days after completed and no additional permit shall
be issued to that person after that time, unless such charge has been
paid.
6.
In the event that the applicant fails to backfill, repair or repave
any excavations made within the public rights-of-way, the Administrative
Officer, at his/her discretion, shall repair said cut with City employees
or contract the repair to be made and charge the applicant for the
full contract cost of repair.
If the City makes the repair with City employees, the charges
shall be based on the unit price paid on the most recent street improvement
or pavement repair contract entered into by the City.
B.
Cost Recovery. In the event the City incurs additional costs
as a direct result of an unauthorized action or an inaction by any
person and/or facilities owner, the City shall have the right to recover
from that owner or person any and all documentable costs incurred
including, but not limited to, the identification of undocumented
facilities, completion of improper facilities work, long-term structural
damage, construction delay fees and penalties, fees paid to other
agencies and any other documentable costs incurred by the City within
the public rights-of-way.
C.
Penalties. For each violation of provisions of this Article,
or a permit granted pursuant to this Article as to which the City
has given notice to applicant as provided in this Article, penalties
may be chargeable to the applicant at a rate not exceeding five hundred
dollars ($500.00) per day for so long as the violation continues.
[Ord. No. 1729 §§I —
II, 5-20-2013]
Whenever, by reason of present or future City use of public
rights-of-way, a public improvement is undertaken by the City, or
changes in the grade or widening of a street or in the location or
manner of constructing a water pipe, drainage channel, sewer or other
City-owned underground or aboveground structure is made, and it is
deemed necessary by the City to move, alter, change, adapt or conform
the underground or aboveground facilities of a facilities owner, the
facilities owner shall make the alterations or changes, on alternative
rights-of-way if available, as soon as practicable after being so
ordered in writing by the City at the facility owner's expense without
claim for reimbursement or damages against the City. Failure to promptly
comply with such written order shall be deemed unlawful. The City
will endeavor to minimize the interference with previously installed
facilities when conducting its own facilities work.
[Ord. No. 1729 §§I —
II, 5-20-2013]
A.
A facilities
owner who has determined to discontinue its use of certain facilities
in the City must either:
1.
Provide information satisfactory to the Administrative Officer that
the facilities owners' obligations for its facilities in the rights-of-way
under this Article have been lawfully assumed by another facilities
owner; or
2.
Submit to the Administrative Officer a proposal and instruments for
transferring ownership of its facilities to the Administrative Officer.
If a facilities owner proceeds under this clause, the City may, at
its option:
B.
Facilities
of a facilities owner who fails to comply with this Section and which,
for two (2) years, remains unused shall be deemed to be abandoned.
Abandoned facilities are deemed to be a nuisance.
The City may exercise any remedies or rights it has at law and
in equity including, but not limited to:
C.
Any
facilities owner who has unused facilities in any rights-of-way shall
remove the facilities from that right-of-way during the next scheduled
excavation, unless this requirement is waived by the Administrative
Officer.
[Ord. No. 1729 §§I —
II, 5-20-2013]
A.
Indemnification And Minimum Limits Of Insurance. Permit holder and its contractor shall maintain limits no less that
those outlined in the City of Bowling Green technical specifications
as applicable.
B.
Compliance With Laws. Each applicant shall comply with all
applicable Federal and State laws as well as City ordinances, resolution,
rules and regulations heretofore and hereafter adopted or established.
C.
Applicant Subject To Other Laws, Police Power.
1.
An applicant shall at all times be subject to all lawful exercise
of the police powers of the City including, but not limited to, all
powers regarding zoning, supervision of the restoration of the rights-of-way,
and control of public rights-of-way.
2.
No action or omission of the City shall operate as a future waiver
of any rights of the City under this Article.
3.
Except where rights are expressly granted or waived by a permit,
they are reserved, whether or not expressly enumerated. This Article
may be amended from time to time and in no event shall this Article
be considered a contract between the City and an applicant such that
the City would be prohibited from amending any provision hereof.
D.
Future Uses. In placing any facility, or allowing it to
be placed in the public rights-of-way, the City is not liable for
any damages caused thereby to a facility which is already in place.
E.
Franchise Not Superseded. Nothing herein shall be deemed
to relieve an applicant or the City of the provisions of an existing
franchise, license or other agreement or permit.
F.
Rights And Remedies.
1.
The exercise of one (1) remedy under this Article shall not foreclose
use of another, nor shall the exercise of a remedy or the payment
of damages or penalties relieve an applicant of its obligations to
comply with its permits. Remedies may be used alone or in combination;
in addition, the City may exercise any rights it has at law or equity.
2.
The City hereby reserves to itself the right to intervene in any
suit, action or proceeding involving any provisions of this Article.
3.
No applicant shall be relieved of its obligation to comply with any
of the provisions of this Article by reason of any failure of the
City to enforce prompt compliance.
G.
Incorporation By Reference. Any permit granted pursuant
to this Article shall by implication include a provision that shall
incorporate by reference this Article into such permit as fully as
if copied therein verbatim.
H.
Force Majeure. An applicant shall not be deemed in violation
of provisions of this Article where performance was rendered impossible
by acts of God or the public enemy, epidemics, war or riots, civil
disturbances, quarantine restrictions, labor strikes, freight embargoes,
fires, floods, unusually severe weather or other natural catastrophes
beyond the applicant's control, and a permit shall not be revoked
or an applicant penalized for such non-compliance, provided that the
applicant takes immediate and diligent steps to bring itself back
into compliance and to comply as soon as possible under the circumstances
with its permit without unduly endangering the health and safety of
the applicant's employees or property, the public, public rights-of-way,
public property or private property.
I.
Calculation Of Time. Unless otherwise indicated, when the
performance or doing of any act, duty, matter or payment is required
under this Article or any permit, and a period of time is prescribed
and is fixed herein, the time shall be computed so as to exclude the
first (1st) and include the last day of the prescribed or fixed period
of time.
J.
Severability. If any Section, Subsection, sentence, clause,
phrase, term, condition or provision of this Article shall, to any
extent, be held to be invalid, unenforceable 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 remainder hereof
and shall be valid in all other respects and continue to be effective.
In the event of a subsequent change in applicable law so that the
provision that has been held invalid is no longer invalid, said provisions
shall thereupon return to full force and effect without further action
by the City and shall thereafter be binding on the applicant and the
City. If a permit, right or registration shall be considered a revocable
permit as provided herein, the permit holder must acknowledge the
authority of the Board of Aldermen to issue such revocable permit
and the power to revoke it. Nothing in these ordinances precludes
the City from requiring a franchise agreement with the applicant,
as allowed by law, in addition to requirements set forth herein.
K.
Technical Specification Applicable To City. Technical specifications,
which are on file in the City offices, shall be fully applicable to
work performance by the City and its departments. As a matter of public
policy, the City shall utilize the Missouri One-Call system to notify
registered facilities owners, prior to the City working in the public
rights-of-way.
L.
Eminent Domain. Nothing herein shall be deemed or construed
to impair or affect, in any way or to any extent, any right the City
may have to acquire the property of applicant through the exercise
of the power of eminent domain.
M.
Annexation. The provisions of this Article shall specifically
apply to any lands or property annexed as of the date of such annexation.
N.
Savings Clause. 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 in any manner connected with the
subject written hereof, unless expressly provided otherwise herein
or hereafter.