[Ord. No. 3574 §4, 6-26-2008]
ROW User. The term "rights-of-way user" or "ROW user" shall mean such persons and entities maintaining or installing facilities in the 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; every municipally owned or operated utility pursuant to Chapter 91, RSMo., or pursuant to a Charter form of government or cooperatively owned or operated utility pursuant to Chapter 394, RSMo.; every street light maintenance district; every privately owned utility; and every other entity, regardless of its form of organization or governance, whether for profit or not, which in providing a public utility type of service for members of the general public utilizes pipes, cables, conduits, wires, optical cables, poles or other means of transmission, collection or exchange of communications, information, substances, data or electronic or electrical current or impulses in the collection, exchange or dissemination of its product or services through the public rights-of-way and all other persons or entities installing or maintaining facilities in the rights-of-way of the City not otherwise expressly exempted.
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 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 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 rights-of-way may be permitted without a franchise or ROW agreement pursuant to a special use permit issued by the City Administrator. The City Administrator may establish such application, requirements and conditions applicable to such uses consistent with the purposes of this Article 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 rights-of-way. The City specifically reserves the right to grant, at any time, such additional agreements or other rights to use the 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 Article and other applicable laws of the City, except as may be expressly stated in such agreements and franchises.
Lease required for public lands. Unless otherwise provided, use or installation of any facilities in, on or over non-rights-of-way public property of the City shall be permitted only if a lease agreement or other separate written approval has been negotiated and approved by the City with such reasonable terms as the City may require.
Transferability. Except as provided in this Section 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 Article. The City shall not unreasonably withhold its consent to transfer as provided herein.
Application For Franchise Or Agreement Required.
Application. An application for a 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 to accurately maintain 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 pay such additional amount prior to issuance of any final City approval after written notice from the City. Nothing herein shall be construed to prohibit the City from also charging reasonable compensation for use of the rights-of-way where such a fee is not contrary to applicable law.
Application form. A ROW user shall submit a completed application for a franchise or ROW agreement on such form provided by the City, which shall include information necessary to determine compliance with this Section 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 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 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 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 regulation.
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 Article and all applicable law, the City Administrator shall submit such agreement to the Board of Aldermen for approval. Upon determining compliance with this Article, the Board of Aldermen shall authorize execution of the franchise or ROW agreement (or a modified agreement otherwise acceptable to the City consistent with the purposes of this Article) and such executed franchise or agreement shall constitute consent to use the 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 otherwise governing ordinance or law, any person aggrieved by a decision made pursuant to this Chapter shall, prior to seeking any judicial relief, file a written appeal any such decision with the Governing Body of the City 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.
[CC 1985 §18-66; Ord. No. 2629 §1, 11-26-1991]
No person, firm or corporation shall make or cause to be made within the City any excavation in any public street, place, walkway, right-of-way or easement unless and until a permit for such excavation has first been obtained from the City Administrator in accordance with the further provisions of this Article. No exception to this Article shall be permitted except public work done by authority of the State Highway Commission or the Board of Aldermen and emergency work done under provisions of Section 520.220 of this Article. Excavation permits shall not be transferable.
[CC 1985 §18-67; Ord. No. 2629 §2, 11-26-1991]
Application for an excavation permit shall be made in writing to the City Administrator. The application shall contain information regarding the purpose, location and size of the proposed excavation and the approximate time when work thereon will be commenced and completed. A separate permit shall be required for each and every excavation. Before any excavation permit is issued, the applicant shall furnish proof of liability insurance which will save harmless the City from all claims for damages arising from the prosecution of the work, all as further set forth in Section 520.210 of this Article. Each person, firm or corporation which seeks one (1) or more excavation permits from the City shall, prior to the issuance of such permit, deposit and maintain with the City Collector the cash sum of one thousand five hundred dollars ($1,500.00) or such additional amount as may be determined necessary by the Field Operations Supervisor as a standing deposit or performance bond to secure compliance with the provisions of this Article. This deposit or the balance remaining therein, if any, shall be refunded to the person, firm or corporation making and maintaining such deposit upon such person's, firm's or corporation's certification that he/she or it no longer intends to engage in any activity involving excavations within the City under the provisions of this Article and after deduction from such deposit of all amounts due the City for securing compliance with the provisions of this Article.
[CC 1985 §18-68; Ord. No. 2629 §3, 11-26-1991]
In making an excavation in any public place, the excavated materials shall be placed where they will cause the least possible inconvenience to the public. The width of the excavation shall be no greater than necessary for doing the work. Adequate provisions for proper drainage of the area surrounding the work shall be maintained at all times.
[CC 1985 §18-69; Ord. No. 2629 §4, 11-26-1991]
Excavations made in or under streets, walks or driveways are to be backfilled with granular material thoroughly compacted into place as specified in the City Engineer's "Specifications for Excavation Work" and the pavement surface restored to its original best condition. In such locations, excavation materials are to be removed from the site of the work as soon as practical after excavation is made and no such material unduly allowed to accumulate on the site. The location of the work shall be swept and cleaned following the excavation work.
Approved granular backfill material shall be composed of either crushed rock or crushed gravel, free of clay lumps, trash or dust-sized particles. The maximum size shall not exceed one (1) inch. Quarry materials or gravel are to be placed in horizontal layers no greater than a loose thickness of ten (10) inches and shall be densified by mechanical tamping or vibration. The minimum density of such material shall be not less than one hundred five (105) pounds per cubic foot dry weight basis. The contractor shall present written documentation from an acceptable testing laboratory to the Field Operations Supervisor that such compaction has been achieved. As an alternative to the use and compaction of granular backfill as defined in this Section, excavations may be filled with a placement of "lean mix backfill", a mixture of Portland cement, granular aggregates, water and fly ash, mixed and applied as specified in the City Engineer's "Specifications for Excavation Work". In instances where such lean mix backfill is used in the repair of street excavations, contractors shall not be required to test or document the extent of compaction achieved.
[CC 1985 §18-70; Ord. No. 2629 §5, 11-26-1991]
Excavations in parkways, outside of paved areas of streets or walks, may be backfilled with earth and all grass areas returned to their original condition. Earth backfill shall be in accordance with the City Engineer's "Specifications for Excavation Work".
[CC 1985 §18-71; Ord. No. 2629 §6, 11-26-1991]
The work of placing, compacting, backfilling and resurfacing excavated areas is to be performed at the sole cost of the person, firm or corporation making the excavation. When the person, firm or corporation is not sufficiently qualified to perform resurfacing work as determined by the Field Operations Supervisor, the City Street Department may contract to have such work done and make the necessary changes as outlined in this Article. Contractors and utility companies engaged in the construction, replacement or repair of utility lines in paved areas shall be required to perform backfilling and repaving operations as part of the construction or replacement project and to furnish the City satisfactory guarantee covering performance of the work in accordance with City specifications. Representatives of the City shall be permitted to inspect any and all backfilling or restoration work performed in compliance with the requirements of this Article. All such restoration work shall be completed in a reasonably prompt manner as negotiated with the Field Operations Supervisor.
[CC 1985 §18-72; Ord. No. 2629 §7, 11-26-1991]
When the restoration work referred to in Section 520.160 is completed by the person, firm or corporation making or causing to be made the excavation, the street surfacing so replaced shall, for a period of one (1) year following the date of restoration, be the responsibility of the excavator who shall bear all costs of maintenance on the repaired portion for such time. Failure to comply with the requirements of this Section shall constitute a violation of this Article and the City may, in addition to prosecution for violation, use such portion of the bond deposit provided in Section 520.120 as is necessary to maintain or repair unsatisfactory replacement of a street surface and no further permits shall be issued to any person, firm or corporation whose bond deposit has been thus depleted or diminished.
[CC 1985 §18-74; Ord. No. 2629 §9, 11-26-1991]
When contractors or utility companies have been given notice of construction or resurfacing of streets, walks, alleys or ways at least six (6) months in advance by the City Administrator, no excavations shall be permitted on such new streets, walks, alleys or ways for a period of five (5) years unless in an emergency and where tunneling or other suitable methods cannot be employed. No excavations on new streets will be permitted except by permission of the Field Operations Supervisor where public health or safety is endangered.
[CC 1985 §18-75; Ord. No. 2629 §10, 11-26-1991]
All excavations shall be made in such manner as not to inconvenience or interfere with the public use or travel upon the streets, avenues, sidewalks or other public use places when possible. When such use is unavoidably obstructed, the person making the excavation shall exercise all reasonable dispatch in prosecuting the work so that the public use will not be obstructed beyond a reasonable time. In cases where excavations are made entirely across a public highway and adequate detour for traffic is not available, a substantial driveway shall be maintained across such excavation until such excavation is refilled. Detours may not be established except on special permit from the Field Operations Supervisor and then only after notice to the Fire Department, Police Department and ambulance service of the City. All sidewalks, crosswalks, curbs, gutters, streets, avenues, alleys or public places disturbed, interfered with or injured in making any excavation shall be restored, replaced and repaired to as good condition as they were before such excavation was made.
[CC 1985 §18-76; Ord. No. 2629 §11, 11-26-1991]
Every person, firm or corporation who or which shall make or cause to be made any excavation in or adjoining any public street, alley, highway or public place shall provide, erect and maintain at all times along the excavation all such barricades, signs, lights and warning signals as may be necessary to protect the public from the hazards arising from the operation.
[CC 1985 §18-77; Ord. No. 2629 §12, 11-26-1991]
Every applicant for an excavation permit shall register with the City proof that the applicant is maintaining liability insurance in the sum of one million dollars ($1,000,000.00) for any injuries or damages received or sustained by any person, persons or property on account of the excavation work or on account of or in consequence of any neglect in safeguarding the work. Such insurance shall be carried in a firm or corporation which has been licensed or permitted to carry on such business in the State of Missouri and shall be kept and maintained continuously in force and effect so long as the excavation work shall be in process. A verified copy of the insurance policy shall be filed with the City Administrator with the certificate of the insurer that the policy is in full force and effect and that the insurance will not be altered, amended, terminated or ended without notice having been given to the City. In lieu of the insurance herein provided, the applicant may deposit a corporate or other surety bond in the penal sum of one million dollars ($1,000,000.00) conditioned that he/she will pay any judgment recovered by any person or persons injured or property damage incurred on account of the excavation work or on account of or in consequence of any neglect in safeguarding the work. In the event the insurance policy provided for herein lapses and is not immediately renewed or any bond terminates in any manner whatsoever and a substitute in lieu thereof is not deposited, the permit for the excavation shall be immediately revoked.
[CC 1985 §18-78; Ord. No. 2629 §13, 11-26-1991]
In case of an emergency where the public health or safety is in danger and the office of the Field Operations Supervisor is not open, the provisions of this Article relating to the issuance of permits prior to commencement of work of excavation shall not apply. In such case, the person, firm or corporation making the excavation shall notify the Police Department of the City that the emergency work is being commenced and the location thereof and the work may proceed immediately, following the provisions set forth in this Article. Final resurfacing or temporary patches shall not be applied to the excavation until such time as the Field Operations Supervisor has inspected and approved the backfill and issued a permit therefor. Application for the permit shall be made on the first (1st) day which the office of the City Administrator is open after the work is commenced.
[CC 1985 §18-79; Ord. No. 2629 §14, 11-26-1991]
Any person, firm or corporation who or which violates any of the provisions of this Article or who or which shall make or cause to be made any excavations in violation of the terms of this Article may, upon conviction, be fined up to five hundred dollars ($500.00) or be imprisoned for not more than ninety (90) days, or suffer both such fine and imprisonment.