[Ord. No. 3149, 11-15-2022]
A. All ROW-users shall comply with the insurance requirements set forth
in this Section, unless the ROW-user has twenty-five million dollars
($25,000,000.00) in net assets in the State of Missouri and does not
have a history of non-compliance, or permitting non-compliance, within
the City. If the ROW-user claims such exemption, the ROW- user shall
provide all information to the City necessary to determine the amount
of net assets of the ROW-user.
B. Insurance Required.
1.
Prior to any access in the ROW, ROW-user shall file with the
City evidence of liability insurance with an reputable, qualified
and financially sound insurance company licensed to do business in
Missouri, and unless otherwise approved by the City in writing, with
a current A.M. Best rating of not less than A-. ROW-user shall procure
and maintain insurance against claims for: a) bodily injury, personal
injury, sickness or disease, or death of any or more persons other
than ROW- user's employees; b) damages insured by usual personal
and advertising injury liability coverage; c) damages because of injury
to or destruction of tangible property, including loss of use; d)
products/completed operations; and e) damages involving liability
insurance applicable to ROW-user's indemnity obligations under
division. Such insurance shall cover claims as may be occasioned by
the operations, acts, errors, omissions, or negligence of ROW- user
or its officers, agents, representatives, employees, lessees, or contractors
during all times that occupies the ROW. Insurance limits may be met
by the combination of primary and umbrella or excess coverage.
2.
The insurance to be provided by an ROW-user shall be as set
forth in the "Standard Insurance and Indemnification Requirements"
as approved by the City Attorney, which may be updated and amended
as needed from time to time.
3.
If the ROW-user is self-insured, it shall provide the City proof
of compliance regarding its ability to self-insure and proof of its
ability to provide coverage in the above amounts, but self-insurance
shall only be permitted by consent of the Board of Aldermen and the
execution of an agreement separate from any agreement created under
this Chapter which shall be in full force and effect until such time
as the ROW-user's facilities, structures and use are removed
or cease from or on the ROW.
C. No liability insurance will be required of any residential property
owner excavating or working in the right-of-way adjacent to his/her
residence who does not utilize a contractor to perform the excavation
or work and who does not require a temporary traffic control permit.
However, said residential property owner shall be required to demonstrate
proof of a homeowner's policy with coverage and limits acceptable
to the City Engineer.
D. For purposes of this Section, "history of non-compliance, or permitting
non-compliance, within the City," shall mean the ROW-user, or any
persons acting on the behalf of the ROW-user, including contractors
or subcontractors, has failed to return the public right-of-way to
its previous condition under a previous right-of-way permit or temporary
traffic control permit.
[Ord. No. 3149, 11-15-2022]
A. If an ROW-user has twenty-five million dollars ($25,000,000.00) in
net assets and does not have, or is not using a contractor with, a
history of non-compliance, or permitting non-compliance, as determined
by the City Engineer, within the City, then the ROW- user shall not
be required to maintain a performance or maintenance bond. The burden
of requesting and proving any exemption from bonding requirements
under this Chapter shall be on the ROW-user to the satisfaction of
the City, and upon request from time to time by the City Engineer
the ROW-user shall establish a continued right to exemption from a
bonding requirement whether the exemption exists under local, State
or Federal law.
1.
The ROW-user shall provide all information to the City necessary
to determine the amount of net assets of the ROW-user.
2.
For purposes of this Section, "history of non-compliance, or
permitting non-compliance, within the City," shall mean the ROW-user,
or any persons acting on the behalf of the ROW-user, including contractors
or subcontractors, has failed to return the public right-of-way to
its previous condition under a previous right-of-way permit or temporary
traffic control permit on at least one (1) occasion as determined
by the City Engineer.
B. If it is determined pursuant to Subsection
(A) of this Section that an ROW-user does not have twenty-five million dollars ($25,000,000.00) in net assets or does have a history of non-compliance, or permitting non-compliance, or is using a contractor or third party with a history of non-compliance, then the ROW-user shall:
1.
Maintain a performance bond in a form approved by the City Attorney.
The amount of the bond unless prohibited by valid, constitutional
law, will be five thousand dollars ($5,000.00) or the value of the
restoration, whichever is greater, as determined by the City Engineer,
for a term consistent with the term of the applicable right-of-way
permit or temporary traffic control permit, conditioned upon the ROW-user's
faithful performance of the provisions, terms and conditions conferred
by this Chapter.
2.
Maintain a maintenance bond in a form approved by the City Attorney.
The amount of the bond, unless prohibited by valid, constitutional
law, will be five thousand dollars ($5,000.00) or the value of the
restoration, whichever is greater, as determined by the City Engineer,
for a term consistent with the term of the applicable right-of-way
permit or temporary traffic control permit plus four (4) additional
years, conditioned upon the ROW-user's faithful performance of
the provisions, terms and conditions conferred by this Chapter.
3.
For facilities that extend above and below the ground and are
permanent in nature and would require demolition similar in nature
to a building or monopole tower to remove, the ROW-user shall provide
to the City a bond in the amount of the then cost to remove or demolish
such a facility or the right through a recordable document to execute
on a piece of real estate in a fashion similar to the manner in which
the City may place a lien on property when a structure is removed
by the City.
4.
For facilities that are attached, collocated, placed, or installed
on City property or in the ROW, ROW user shall maintain a payment
bond in a form approved by the City Attorney in favor of City up to
an amount permitted by valid, constitution law to recoup unpaid rates
or fees by ROW-user. Said bond shall be acknowledged by ROW-user,
as principal, and shall be issued by a surety with an AM Best rating
of A- or better for the last four (4) quarters.
C. In the event the City shall exercise its right to revoke the right-of-way permit or the temporary traffic control permit as permitted herein, then the City shall be entitled to recover under the terms of said bonds or against any real estate under Subsection
(B)(3) of this Section the full amount of any loss occasioned. A copy of the maintenance and performance bonds or recorded instrument must be on file with the City Clerk. No maintenance or performance bond will be required of any residential property owner excavating or working in the right-of-way adjacent to his/her residence, who does not utilize a contractor to perform the excavation or work and who does not require a temporary traffic control permit. Because such work is done by a private property owner against whose property the City may place a lien under the law, no recorded instrument giving the City additional rights to place a lien and foreclose on such lien shall be required.
D. All bonds required in this Section shall be acknowledged by ROW-user,
as principal, and shall be issued by a surety with an AM Best rating
of A- or better for the twelve (12) months immediately preceding the
bond issuance date.
[Ord. No. 3149, 11-15-2022]
A. Any person operating under the provisions of this Chapter or performing
any temporary traffic control, excavation, or work in the right-of-way
shall fully indemnify, release, defend and hold harmless the City
and agents of the City when acting in their capacity as municipal
officials, employees, elected officials, attorneys, and agents, for,
from and against any and all claims, demands, suits, fines, losses,
injuries, proceedings, and actions, liability and judgment by other
persons for damages, losses, costs, and expenses, including attorney
fees, to the extent caused by or arising out of the acts, errors,
directives, or omissions of the person, or its agents, contractors,
or subcontractors, in the performance of the permitted temporary traffic
control, excavation, or work. Nothing in this Chapter shall be construed
to waive the City's sovereign or any other immunity or defense
available to it, its officers, employees and agents.
B. Nothing herein shall be deemed to prevent the City, or any agent,
from participating in the defense of any litigation by its own counsel
at their own expense. Such participation shall not under any circumstances
relieve the person from its duty to defend against liability or its
duty to pay any judgment entered against the City, or its agents.
C. All ROW-users shall be responsible for promptly correcting acts or
omissions by any contractor or subcontractor performing permitted
temporary traffic control, excavation or work for such ROW-user hereunder.
Failure to do so within the time set by the City Engineer shall be
cause to revoke any ROW permit and to eject the ROW-user from the
City's rights-of-way by any means available including seeking
a declaratory judgment action, injunction or in the event of emergency
self-help.
D. Notwithstanding anything to the contrary in this division, in accordance
with Section 67.5121(2), RSMo., an ROW-user's indemnification
obligations set forth in this Article, but only with respect to the
ROW-user's operation of a "small wireless facility," as defined
in the Uniform Small Wireless Facility Deployment Act, within the
ROW, shall only be required to indemnify and hold the City, its officers
and employees, harmless against any damage or personal injury caused
by the negligence of the ROW-user, its employees, agents, or contractors.
This exception shall only apply to the ROW-user's "small wireless
facilities" and shall not otherwise alter the obligations of a ROW-user
to indemnify the City for all of ROW-user's other activities
or operations.
[Ord. No. 3149, 11-15-2022]
Any person operating under the provisions of this Chapter or
performing any temporary traffic control, excavation or work in the
right-of-way shall fully indemnify, release, defend and hold harmless
the City and agents of the City when acting in their capacity as municipal
officials, employees, elected officials, attorneys, contractors, and
agents, from and against any and all claims, demands, suits, proceedings,
and actions, liability and judgment by other persons for contractual
or economic losses, damages, losses, costs, and expenses, including
attorney fees, to the extent caused by failure of an ROW-user, or
its agents, contractors, or subcontractors, to relocate or adjust
its facilities pursuant to the provisions of this Chapter.
[Ord. No. 3149, 11-15-2022]
A. Any person operating under the provisions of this Chapter or performing
any excavation or work in the right-of-way shall be liable for any
damages to facilities due to excavation or work performed by the person,
including damage to underground facilities that have been properly
identified prior to commencement of excavation or work.
B. Any person operating under the provisions of this Chapter or performing
any excavation or work in the right-of-way shall fully indemnify,
release, defend and hold harmless the City and agents of the City
when acting in their capacity as municipal officials, employees, elected
officials, attorneys, contractors, and agents, from and against any
and all claims, demands, suits, proceedings, and actions, liability
and judgment by other persons for damages, losses, costs, and expenses,
including attorney fees, associated with damage to the facilities
of other ROW-users by a person, or its agents, contractors, or subcontractors.
[Ord. No. 3149, 11-15-2022]
A. Any ROW-user may satisfy the insurance, bonding, and indemnification
provisions of this Chapter through a valid franchise agreement with
the City, provided such insurance, bonding and indemnification equals
or exceeds those required under this Chapter. Any requirements thus
satisfied shall be indicated on the ROW-user's registration and
shall not be required for each right-of-way permit and temporary traffic
control permit.
B. This Section shall not apply to an applicant acting on behalf of
an ROW-user, unless the applicant is listed as an additional insured
on the ROW-user's insurance policy and is covered by the surety.
The applicant must submit evidence of the satisfaction of these requirements
prior to issuance of a right-of-way permit or a temporary traffic
control permit.