ORDINANCE NO. 120934

 

Amending Chapter 64, Streets Sidewalks and Public Places, Code of Ordinances, by repealing Sections 64-4, 64-113, and 64-122 and enacting in lieu thereof new sections of like number and subject matter, modifying terms and modifying the performance and maintenance bond requirements.

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section 1. Amending Chapter 64, Streets Sidewalks and Public Places, Code of Ordinances, by repealing Sections 64-4, 64-113, and 64-122 and enacting in lieu thereof new sections of like number and subject matter modifying terms and modifying the performance and maintenance bond requirements.

 

Sec. 64-4.  Construction or repair by property owner of facilities in adjacent right-

of-way.

 

(a)   Definitions.  As used in this section: 

 

Director means the director of City Planning & Development of the city unless otherwise defined herein. 

 

Improvement  means new or a modification of existing curbs, gutters, driveways from curb to property line, sidewalks, sewers, street lighting systems, stream buffer protection requirements and appurtenances by a change in grade, construction, repair or reconstruction authorized under this section. 

 

Owner means the person, persons, or any legally recognized entity holding title to real property. 

 

Permittee means an owner of private property, or the owner's representative or contractor a holding a special permit issued pursuant to this section. 

 

Plan means a drawing, sketch, report, or document prepared in accordance with adopted city standards and codes to convey a design, Improvement or repair, and submitted for review and permitting pursuant to this section. 

 

QCR means quality control review, a process of checking a plan submittal application or resubmittal for completeness against a certified submittal checklist that the applicant has prepared and attached to the plan prior to acceptance for technical review. 

 

RCR means review comment resolution, a service provided to communicate and clarify review deficiencies. 

 

Special permit means a permit issued by the director pursuant to this section for the construction or preparation for construction and maintenance thereto of an improvement, including site disturbance activities that are performed in accordance with Chapter 63 of the Code under this permit. 

 

Work means any activity that involves construction or preparation for construction of an Improvement. 

 

(b)   Permit required; issuance of permit.  The director is hereby authorized to issue a special permit, upon request, to owners of private property, or their representatives or contractors, to make improvements, at their own expense, in the public streets or alleys adjacent to or running through their property, if the director determines that such improvements are reasonably necessary. No person shall begin any such work until such permit therefor has been issued. 

 

(c)   Authorization of work under building permit.  Authorization for construction of such sidewalks and driveways within street rights-of-way adjacent to any lot on which a residential building is proposed may, at the option of applicant, be included in the building permit for that structure. 

 

(d)   Application, review process and fees.   

 

(1)    Application.  Each applicant for a special permit shall complete an application in the form provided by the director. The name of the applicant and lead contact shall appear on the application. The applicable fees pursuant this section shall be paid at the time of filing for review, resubmittal, and permit issuance. After review of an application, the director shall notify the applicant of such further action and reviews as necessary. If an application is approved, the applicant may procure all required permits for the work within 365 days. If all required permits for the work have not been procured, then the approval of the application shall be null and void, provided that the director may waive reapplication for plan review or may extend the time for action by the applicant for a period not to exceed 180 days upon request by the applicant if the director determines that there exist circumstances beyond the control of the applicant preventing procurement of permits for the work. Not more than one extension shall be allowed. Thereafter, a new application and new fee shall be required. Plans and other data submitted for review may thereafter be returned to the applicant or destroyed by the director. 

 

(2)    Estimated cost of construction.  The determination of the estimated cost of construction under any provision of this section shall be made by the director. The estimated cost of construction to be use in computing the special permit fee and associated review fees shall be based on the total costs of similar construction at the time of application for review or permit issuance. 

 

(3)    Major infrastructure reviews and permit fees.  As a condition for issuance of a special permit pursuant this section for grading, improvements to streets, alleys, streetlights, streetlight signals, storm sewers, stream buffer protection requirements, and sanitary sewers, the applicant shall pay a basic plan fee in an amount equal to 8.40 percent of the estimated cost of the construction, and such other fees as set forth herein, to defray the cost of plan review services, quality control review (QCR) services, review comment resolution (RCR) services, resubmittal review services, permitting services, supervision, and inspection services. The basic plan fee shall be composed of both an initial technical plan review fee for Plan review services, (QCR) services, and (RCR) services in an amount equal to 3.65 percent of the estimated cost of the construction, and a permitting fee for permitting services, supervision and construction inspection in an amount equal to 4.75 percent of the estimated cost of the construction. In no case shall the basic plan fee be less than $1,000.00 per permit per month of permit duration, or any extension thereof. 

 

An applicant shall submit a plan for QCR and certify that all of the necessary plan components are contained in the plan as required by the special permit submittal checklist. If as certified, all of the plan components have been submitted, but the submittal fails QCR for other omissions or deficiencies not set out in the checklist, no additional fee will be charged for subsequent QCR submissions by the applicant, if any, required by the director. If any QCR determines that plan does not contain all of the components certified by the applicant, then the applicant shall pay the city an additional fee of $63.00 for each subsequent submittal for QCR made necessary by applicant's failure to satisfactorily cure the deficiencies.

 

If the plan passes QCR, then the plan shall be submitted for technical review of the plans and applicant shall pay the initial technical plan review fee in an amount equal to 3.65 percent of the estimated construction cost. If after the initial technical review the director determines that there are technical deficiencies in the plan, the director shall notify applicant of the deficiencies and offer RCR services, and applicant may resubmit the plan for a second technical review without an additional review fee. Prior to a second technical review the applicant shall submit a revised plan for QCR and certify that all of the necessary plan components, additions, or changes previously noted by the director are contained in the plan. If any QCR determines that plan does not contain all of the revised components certified by the applicant, then the applicant shall pay the city an additional fee of $63.00 for each subsequent QCR made necessary by applicant's failure satisfactorily cure the QCR deficiencies. On second technical review and all technical reviews thereafter, if the director determines that the applicant has failed to satisfactorily cure the technical deficiencies previously noted on prior technical reviews, then the applicant shall pay the city an additional resubmittal technical review fee in an amount equal to 0.30 percent of the estimated cost of construction for each subsequent technical review made necessary by applicant's failure to satisfactorily cure such deficiencies.

 

If after the technical review the director determines that the plan application is in substantial compliance with city's regulations and adopted standards, the director shall notify applicant of application approval for permit issuance. The applicant shall pay the permitting fee in an amount equal to 4.75 percent of the estimated cost of construction and procure all required permits as provided in subsection (h)(1). The determination that the plan is in compliance with city regulations does not imply that the city is guaranteeing specific outcomes nor is the city accepting any responsibility for the plan.

 

(4)    Minor infrastructure reviews and permit fees.  As a condition for issuance of any permit pursuant to this section for new sidewalks, driveways, curbs and gutter sections, the basic plan, permitting services, supervision and inspection fee shall be an amount equal to seven percent of the estimated cost of the new work, but in no case shall the fee be less than $150.00. As a condition for issuance of any permit under this section for the repair or replacement of existing sidewalks, driveways, curbs and gutter sections, the basic plan fee for initial permitting services, supervision, and inspection services shall be an amount equal to five percent of the estimated cost of the repair or replacement, but in no case shall the fee be less than $150.00. 

 

(5)    Sidewalks and driveways.  Where authorization for the construction of sidewalks and driveways within street rights-of-way, required by ordinance, adjacent to any lot for which a residential building is proposed, is included in a building permit, such fee shall be $78.00 for interior lots and $118.00 for corner lots. Such fees shall be collected as part of the building permit fee. 

 

(6)    Supplementary fees.  The fee for a supplementary review and special permit to cover any additional value or scope of work not included in the original permit shall be the difference between the fee paid for the original application or permit and the fee which would have been required had the original application or permit included the entire value and scope of the work. The minimum supplemental special permit fee assessed shall be $1,000.00. 

 

(7)    Optional preliminary code review meetings or consultation services.  When requested by the applicant, meetings may be conducted to review the requirements and/or codes pertaining to the applicant’s project and a fee shall be assessed at the time of the meeting based on the value of the infrastructure improvement as follows: 

 

a.    Project total value less than or equal to $2,000 . . . no fee

 

b.    Project total value greater than $2,000 and less than or equal to $10,000 . . . $67.00

 

c.    Project total value greater than $10,000 and less than or equal to $50,000 . . . 131.00

 

d.    Project total value greater than $50,000 . . . 198.00

 

These fees shall be in addition to any other fees required.

 

(8)    Priority Project review fee.  When priority status is requested by the applicant, a fee of 2 times the fee shall be assessed. Eligibility for priority status shall be determined by the director, or director’s designate, based on the complexity of the project and availability of staff. These fees shall be in addition to any other fees required. 

 

(9)    Changes to Reviewed Plans.  Review of such changes shall be assessed a fee at the time of the review based on the scope of the review as follows: 

 

a.    Minor reviews - changes requiring limited review . . . $48.00

 

b.    Major reviews - changes requiring review of design elements . . .  1/2 of basic plan fee

 

The director or designee shall have the authority to determine the extent of the changes requested and the fee which shall apply. This fee shall be in addition to any other fees required.

 

(10)    Permit extension fee.  Applicant may request an extension of a permit duration and pay a fee sufficient to cover the additional administrative and inspection costs associated with the extension. Extension fees shall be individually calculated based on staff estimates for each permit extension requested. 

 

(11)    Reinspection fees.  When testing of infrastructure does not pass on the first inspection, a fee of $67.00 shall be assessed and no further inspections shall be completed until such fee is paid. 

 

(12)    Enforcement fees.  When enforcement actions are necessary above normal notification of deficiencies, a fee shall be assessed to cover the additional administrative, review and inspection costs of enforcement actions. The enforcement fees shall be individually calculated based on staff estimates for each permit and the additional costs spent on the enforcement. This shall included enforcement actions taken to acquire as-built records required on sewer permits. These fees shall be in addition to any other fees required or court fines imposed and paid to the Court. 

 

(13)    Payment of fees.  All fees shall be rounded off to the next whole dollar amount. Fees may be waived at the discretion of the director during times of declared emergency. 

 

(14)    Fee refunds.  For fees specified in this section, if no portion of the application for plan review or permit inspection has commenced, the applicant may request in writing that the application be canceled. The applicant shall then be entitled to a refund of 90 percent of the applicable fee actually paid, except that a full refund will be made when the fee was paid or collected in error. If plan reviews or permit inspections have commenced prior to receipt of a written request for cancellation of the application for a special permit, then a refund will not be made. No refund will be made if a request for a refund has been made more than 30 days after the special permit has expired and no work has commenced. 

 

(15)    Plans and specifications.   

 

a.    Plans for the work shall be prepared by such owners and submitted to the director for his approval. The plans shall indicate the location, extent and character of the proposed work, and include an estimate of the amount of the various materials, installation and services to be incorporated in the work. The plans shall have cross sections, profiles and other information as are ordinarily included in plans prepared in the office of the director for like work. The plans and work shall conform to the standard specifications of the city for public work of like character.

 

b.    All work shall be subject to the direction and supervision and to the satisfaction of the director.

 

(e)    Sewer construction.   

 

(1)    The grant of a special permit and the construction of the sewers or appurtenances by owner pursuant to this section does not exempt the property served by such improvements from any special assessment issued for the construction of sewers by the city in the districts or in the joint districts now or hereafter established by the city, and the city shall not be bound by the owner's construction of any sewerage improvements to determine whether the properties served by owner's improvements constitute a separate sewer district or districts. All sewers constructed by owner pursuant to this section shall become the property of the city upon acceptance by the director, and the city shall have the right and power to make use of, to reconstruct or to change such sewers to provide for the proper sewering of the drainage area.

 

(2)    Nothing in this subsection shall be construed to mean that the owner or owner's assigns shall be denied the right to use the sewers up to the approved designed capacities, as approved by the director of health and the director. Acceptance of the completed Improvements by the director shall be made only after receipt of reproducible as-built plans.

 

(3)    The director is hereby authorized to refuse the issuance of building permits or sewer construction permits for any residence, building or structure where such an addition, as determined by the director, would result in exceeding the design capacities of the sewers or sewerage facilities authorized in the special permit. The director may charge appropriate fees for evaluation of sewer connection requests and issuance of sewer connection permits to cover the additional administrative review and permit issuance costs associated with the connection. Connection fees shall be individually calculated based on staff estimates for each permit connection requested.

 

(f)   Performance and maintenance bond.   

 

(1)               The director shall require the permittee to furnish a performance and maintenance bond, approved by the director of finance, equal to the estimated cost of the work; unless authorization for the construction of sidewalks and driveways within street rights-of-way, required by ordinance, has been granted by inclusion of those improvements in the building permit; and unless the requirement is waived as provided in subsection (f)(2) and (f)(3) of this section. The bond shall guarantee performance and completion of the work to the satisfaction of the director, within a time limit specified on the special permit. The following types of work shall also require the bond to guarantee maintenance without the need of any repair for two years:

 

a.                   Grading.

 

b.                  Curb, gutters, sidewalks and driveways.

 

c.                   Portland cement concrete and asphaltic concrete pavement, and other street appurtenances.

 

d.                  Sewers and appurtenances.

 

e. Stream buffer protection requirements.

 

(2) No maintenance bond is required for street lights or site disturbance activities.

 

(3)  No performance and maintenance bond is required for the repair or replacement of existing sidewalks, curbs or driveways provided the sidewalks, curbs or driveways being permitted are not associated with improvement obligations established under Chapter 88 of the Code.

 

(4) The director shall accept a single bond in accordance with the above for a two year period, when said bond covers all required improvements and guarantees thereto in accordance with Ch. 88-405-21.

 

(5) The director may take action against the security if the applicant fails to install, complete or maintain the improvement in accordance with the special permit and the city's adopted standards for the duration of the permit. The director will provide the applicant with ten days written notice before any action is taken against the security.

 

(g)   Indemnification of city during construction.  Before any permit is issued pursuant to this section, the permittee shall file a bond conditioned to protect and save harmless the city from all claims for damage or injury or death to other persons by reason of such construction work; or in lieu of such bond the permittee may file with the city a certificate of public liability insurance in favor of the city, indemnifying the city for claims for damage or injury. The limits and liability of the bond or insurance shall not be less than the following: 

 

(1)   Personal injury, each person: $100,000.00;

 

(2)   Personal injury, each occurrence: $300,000.00;

 

(3)   Property damage, each occurrence: $50,000.00; and

 

(4)   Property damage, aggregate: $100,000.00;

 

with the bond or insurance sureties to be approved by the director of finance.

 

(h)   Commencement of work without permit.  Whenever any work for which a special permit is required by this section has commenced without first obtaining a special permit, a special investigation may be made before a special permit is issued for such work and all fees specified for obtaining such permit shall be tripled. This provision shall not be construed as permission to begin work without the required permit. 

 

(i)   Penalty.   

 

(1)    Any person, whether owner, representative, contractor, subcontractor or foreman, who shall grade, construct, repair, reconstruct or alter any public street, pavement, curb, gutter, driveway, sidewalk or sewer within any public way, or any public sewer adjacent to or running through any private property within a public right-of-way, without first securing a special permit therefore, issued by the director, shall be deemed guilty of an ordinance violation, and upon conviction thereof shall be fined in an amount not less than $50.00 and not more than $500.00.

 

(2)    For every day after the conviction of any person for the violation, failure, neglect or refusal to comply with any provision, regulation or requirement of this section, that such violation is continued, such person shall be deemed and taken to be guilty of a separate and distinct offense, for which he may be again arrested and tried, and, upon conviction, be punished as in the first offense.

 

(j)   Adjustment of fees.  The city manager shall have the authority to adjust the fees listed above, except in Section (d)(3), to reflect the change in the consumer price index (all items/all urban consumers/Kansas City, Missouri/Kansas) published by the United States Department of Labor, Bureau of Labor Statistics. The adjustments, if any, shall be made annually by the city manager in conjunction with the adoption of the annual budget of the city by filing a notice with the city clerk. 

 

Sec. 64-113.  Excavation permit required.

 

(a)   Except for an emergency or when a special permit has been issued in accordance with Ch. 64-4, no person shall make or cause to be made any excavation in, through or under any property, right-of-way or easements owned by the city, unless the person first applies for and the director issues an excavation permit for that excavation.

 

(b)   Except for an emergency, if a person shall make or cause to be made any excavation in, through or under any property, right-of-way or easements owned by the city, without first filing an application for and obtaining an excavation permit from the director for that excavation, then the application fee set forth in this article shall be doubled for that excavation and the charges, therefore, may be imposed on the person making or causing the excavation.

 

(c)   No permit issued under this article shall be assignable, and no person shall allow his name to be used to obtain a permit for any other person.

 

(d)   An excavation permit is required for emergency excavations. The permit shall be obtained the next regular business day after the excavation is started.

 

(e)   Excavation permits shall be conspicuously displayed at all times at the indicated work site and shall be available for inspection by the director, other city employees, and the public.

 

 

Sec. 64-122. Issuance, denial or revocation of excavation permits.

 

(a)    In determining whether to issue or deny issuance of an excavation permit, or in determining whether to revoke an existing excavation permit, the direct shall consider the following factors:

 

(1)               Will the public health, safety and welfare be endangered.

 

(2)               The availability of space within the property, right-of-way or easements owned by the city.

 

(3)               The availability of other locations in the property, right-of-way or easements owned by the city for excavation and work therein.

 

(4)               Whether the applicant is in compliance with the terms and conditions of its franchise, this ordinance, and other applicable ordinances and regulations.

 

(5)               The extent of disruption to adjoining property, right-of-way or easements owned by other public entities, residents and businesses that will result from the excavation.

 

(6)               Whether the date and duration of the excavation will conflict with an exhibition, celebration, festival, or any other event scheduled to use the property, right-of-way or easements owned by the city.

 

(b)   Notwithstanding the above considerations, the director may issue an excavation permit in any case where the permit is necessary to:

 

(1) Prevent substantial economic hardship to a user of the applicant’s service.

 

(2) Allow such user to materially improve the service provided by the applicant.

 

(c)    An excavation permit issued under this article is a privilege and not a right. The city may revoke an excavation, without refund of the application fee, in the event of a substantial breach of the following terms and conditions:

 

(1) The violation of any material provision of the excavation permit.

 

(2) An evasion or attempt to evade any material requirement of the excavation permit.

 

(3) Any material misrepresentation of any fact in the permit application.

 

(4) The failure to maintain the required bond or insurance.

 

(5) The failure to complete the work within a reasonable time.

 

(6) The failure to correct a condition indicated on an order issued by the director pursuant to this ordinance.

 

(7) Repeated failure to install and maintain required traffic control devices.

 

(8) Failure to repair the property and facilities owned by other parties including the city.

 

(d) If the director determines that the permittee has committed a substantial breach of any law or condition placed on the excavation permit, the director shall make a written demand upon the permittee to remedy the violation. The demand shall state that the continued violation may be cause for revocation of the permit, or legal action if applicable. A substantial breach shall be grounds for the director to modify conditions placed on the excavation permit in order to cure permittee’s breach. Within 5 business days after service of a notice of the breach, permittee shall submit a plan for correction of the breach to the director. The director shall review the plan submitted by the permittee and determine what method of correction and modification of conditions placed on the excavation permit is in the best interests of the public health, safety and welfare. Permittee’s failure to submit a plan for correction of the breach shall be cause for immediate revocation of the excavation permit.

 

(e) If an excavation permit is revoked, the permittee shall reimburse the city for the city’s reasonable costs, including administrative costs, restoration costs and the costs of collection incurred in connection with the revocation.

 

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Approved as to form and legality

 

 

_________________________________

Sarah Baxter

Assistant City Attorney