[Ord. No. 4.600 §I, 9-12-2005]
Except as provided herein, this Chapter shall apply to all excavation
and use, construction, operation and maintenance of facilities in,
across, under or over all public rights-of-way within the City.
[Ord. No. 4.600 §II, 9-12-2005]
Definitions And Word Usage. For the purposes
of this Chapter, the following terms, phrases, words and abbreviations
shall have the meanings given herein, unless otherwise expressly stated.
When not inconsistent with the context, words used in the present
tense include the future tense and vice versa, words in the plural
number include the singular number and vice versa, and the masculine
gender includes the feminine gender and vice versa. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated or
clearly contrary to the context, terms, phrases, words and abbreviations
not defined herein shall be given the meaning set forth in the City
ordinances, and if not defined therein, their common and ordinary
meaning
The specific person applying for and receiving a permit for
facilities work.
That form designed by the City of Weston which an applicant
must use to obtain a permit to conduct facilities work within, across,
under or over the City's rights-of-way.
The Governing Body of the City of Weston, Missouri.
The City of Weston, Missouri, and its agencies, departments,
agents and employees acting within their respective areas of authority.
The City Engineer or such other person as designated by the
City.
The Mayor or designated City Administrator for the purposes
of this Chapter.
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, uncovered,
removed, or otherwise displaced, by means of any tools, equipment
or explosives, except that the following shall not be deemed excavation:
Any de minimis displacement or movement of ground caused by
pedestrian or vehicular traffic;
The replacement of utility poles and related equipment at the
existing general location that does not involve either a street or
sidewalk cut; or
Any other activity which does not disturb or displace surface
conditions of the earth, asphalt, concrete, sand, gravel, rock or
any other material in or on the ground.
Any conduit, duct, line, pipe, wire, hose, cable, culvert,
pole, receiver, transmitter, satellite dish, micro call, pico cell,
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 above
ground within the public rights-of-way of the City, whether used privately
or made available to the public. "Facilities" shall
not include minor residential or other incidental uses such as mailboxes,
driveway aprons, private utility connections or other such non-service
related incidental facilities which may be permitted by special permit
issued by the City Engineer.
The installation of new facilities or any change, replacement,
relocation, removal, alteration or repair of existing facilities that
requires excavation within the public rights-of-way, except for:
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.
Work that will not disrupt any pavement, drainage systems
or other structures.
8:00 A.M. to 5:00 P.M. Central Time, Monday through Friday.
A permit granted by the City Engineer to do the facilities
work within the public rights-of-way.
An individual, partnership, limited liability company, corporation,
association, joint stock company, trust, organization or other entity
or any lawful successor thereto or transferee thereof.
A written plan of work prepared and presented by an applicant
that encompasses an outlined scope of work to be conducted within
the City's right-of-way.
The area on, below or above a public roadway, highway, street
or alleyway in which the City has an ownership interest, but not including:
The airwaves above a public right-of-way with regard to cellular
or other non-wire telecommunications or broadcast service;
Easements obtained by utilities including the municipal utility
or private easements in platted subdivisions or tracts;
Railroad rights-of-way and ground utilized or acquired for railroad
facilities; or
Poles, pipes, cables, conduits, wires, optical cables or other
means of transmission, collection or exchange of communications, information,
substances, data or electronic or electrical current or impulses utilized
by a municipally owned or operated utility pursuant to Chapter 91,
RSMo., or pursuant to a Charter form of government.
No reference herein or in any permit to "public rights-of-way"
shall be deemed to be a representation or guarantee by the City that
its interest or other right to control the use of such property is
sufficient to permit its use for such purposes.
A person, its successors and assigns that uses the right-of-way
for purposes of work, excavation, provision of services or to install,
construct, maintain, repair facilities, equipment or structures thereon
for which a right-of-way permit is required including, but not limited
to, landowners and service ROW users. A "ROW user" shall not include the City or any governmental entity that has entered
into an agreement with the City regarding the use and occupancy of
the City's right-of-way; provided that such users shall be subject
to all such requirements as may be required by law.
[Ord. No. 4.600 §III, 9-12-2005]
A.
Agreement Or Franchise Required. Except when otherwise authorized
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. All such franchises and
agreements shall be approved by ordinance of the Board on a non-discriminatory
basis provided that the applicant is in compliance with all applicable
requirements. Such franchises and agreements shall be deemed to incorporate
the terms of this Chapter and other applicable laws of the City, except
as may be expressly stated in such agreements and franchises. Reseller
service ROW users shall not be required to obtain a franchise or agreement,
but shall be required to register with the City prior to providing
service on forms provided by the City.
1.
Franchise. 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. Such franchise may be
granted only after a public hearing and on satisfaction of all other
applicable procedural or substantive requirements. ROW users shall
be subject to such other ordinances of the City applicable to specific
uses of the ROW. Cable TV service providers shall also be subject
to the City's cable television services ordinance (or such other similar
ordinance as may have been approved or may be approved from time to
time) or such other ordinances of the City applicable to specific
uses of the ROW.
2.
ROW agreement. A ROW agreement shall be required for all
other ROW users or as agreements with such users are renewed or extended
from time to time, except as provided herein or otherwise required
by law. Such agreements shall conform to all applicable law, 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 Mayor or City Administrator after approval by the Board.
B.
Franchises And Agreements Non-Exclusive. 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.
C.
Lease Required For Public Lands. Unless otherwise provided,
use or installation of any facilities in, on or over public lands
of the City non-constituting right-of-way 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 and conditions
as the City may require.
[Ord. No. 4.600 §IV, 9-12-2005]
Except as provided in this Chapter or as otherwise required
by law, no franchise, agreement or permit may be transferred without
written notice to the City based on the requirements and policies
of this ROW ordinance.
[Ord. No. 4.600 §V, 9-12-2005]
A.
Except
as otherwise provided herein, no ROW user or other person shall perform
excavation or facilities work in the right-of-way without a right-of-way
permit. Any person desiring to conduct facilities work within public
rights-of-way shall first apply for and obtain a permit in addition
to any other building permit, license, easement or authorization required
by law, unless such facilities work must be performed on an emergency
basis, then the person conducting the work shall as soon as practicable
notify the City of the location of the work and shall apply for the
required permit by the next business day following the commencement
of the facilities work. A permit should be obtained for each project.
A separate special permit or agreement shall be required for excavation
in or use of any real property interest of the City that is not right-of-way.
B.
All applications
for permits shall be submitted to the City Engineer. The City Engineer
shall design and make available standard forms for such application,
requiring such information as the City Engineer determines to be necessary,
to be consistent with the provisions of this Chapter and applicable
law and to accomplish the purposes of this Chapter. Except as may
otherwise be provided by law, the application shall contain the following
information:
1.
The
name, address and telephone number of the applicant.
2.
The
legal status of the applicant to do the proposed business in this
jurisdiction (corporate status, PSC certifications, etc.).
3.
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 City public rights-of-way.
4.
The
name, address and telephone number of the owner of the facilities
if different than the applicant.
5.
An engineering
site plan showing the proposed location of the applicant's facilities
including manholes or overhead poles and the relationship of the facilities
to all existing streets; length of rights-of-way; the number of road
crossings and the dimensions and character of any cut or excavation,
and the number of square feet to be resurfaced.
6.
Each
application should include the projected commencement and termination
dates or, if such dates are unknown at the time the permit is issued,
a provision requiring the permit holder to provide the City Engineer
with reasonable advance notice of such dates once they are determined.
7.
Certificates
of insurance providing proof of liability coverage for personal injury
and property damage in an amount of not less than three hundred thousand
dollars ($300,000.00) per person in a single accident or occurrence
and not less than two million dollars ($2,000,000.00) for all claims
arising out of a single accident or occurrence together with Workers'
Compensation coverage of statutory minimums. The limits of liability
for each policy coverage amount stated above shall be automatically
adjusted upward as necessary to remain at all times not less than
the maximum amount of liability set forth in Section 537.610, RSMo.,
applicable to political subdivisions pursuant to Section 537.600,
RSMo.; provided that nothing herein or in any such policy shall be
deemed to waive grantor's sovereign immunity. The insurance requirements
in this Section or otherwise shall not apply to licensee to the extent
and for such period during this agreement as licensee is exempted
from such requirements pursuant to Section 67.1830(6)(a), RSMo., provided
that licensee shall have filed an affidavit with the City Clerk certifying
that licensee has twenty-five million dollars ($25,000,000.00) in
net assets and is otherwise therefore so exempted.
8.
Information
sufficient to determine whether the ROW user is subject to other laws
relating to franchising, service regulation, payment of compensation
for the use of the right-of-way, taxation or other requirements as
permitted by law.
9.
Any
additional information that the City Engineer 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.
10.
If
the applicant claims an exemption from any requirement in this Chapter,
applicant shall include a detailed explanation provision subject to
exemption and the facts, legal basis and documentation supporting
such exemption.
C.
Building permits issued by the appropriate City Official shall include authorization to make and repair individual service connections in the public rights-of-way without the need for a separate right-of-way permit. All repairs to the right-of-way made as a result of individual service connections shall be in accordance with Section 510.070(B) of this Chapter and applicable construction standards adopted by the City.
D.
Each such application shall be accompanied by payment of fees as designated in this Chapter, pursuant to Section 67.1840, RSMo. The City Engineer 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 Subsection (I) hereof.
E.
It is
the intention of the City that disruption of the public rights-of-way
should be minimized. Upon receipt of an application for a permit,
the City Engineer shall do the following:
1.
Evaluate the degree of excavation necessary to perform the facilities work in the right-of-way and determine whether the proposed excavation will be more than minor in nature. The City Engineer shall grant a permit within ten (10) business days for facilities work deemed minor in nature. If the applicant can show to the City Engineer's reasonable satisfaction that the facilities work involves time sensitive maintenance, then the City Engineer shall grant the permit within two (2) business days. In either instance, if the permit is not issued in thirty-one (31) business days, the aggrieved party may appeal to the Mayor or City Administrator as provided in Subsection (I), unless the applicant is submitting one (1) project application for multiple excavations, constructions or installations; and
2.
For circumstances where the City Engineer determines that the proposed facilities work will not be minor in nature and no exemption under (E)(1), or any other provisions of this Subsection applies, the City Engineer may, consistent with the time requirements set forth in Subsection (E) and in the permit, direct permit holders performing facilities work in the same area to consult with the City Engineer on how they may schedule and coordinate their work to accomplish the goal of this Section. If the permit is not issued within thirty-one (31) business days, the aggrieved party may appeal to the Mayor or City Administrator as provided in Subsection (I) of this Section, unless the applicant is submitting one (1) project application.
F.
An applicant
receiving a permit shall promptly notify the City Engineer of any
changes in the information submitted in his/her application.
G.
The City
Engineer shall maintain an index of all applicants who have been granted
permits and their point(s) of contact.
H.
Any permit
granted pursuant to this Chapter shall be deemed to include and be
subject to the provisions of this Chapter as fully as if copied therein
verbatim.
I.
Permit Denial. The City Engineer may deny an application
for a right-of-way permit if:
1.
The
ROW user or any persons acting on behalf of the ROW user fails to
provide all the necessary information requested by the City for managing
the public right-of-way.
2.
The
ROW user or any persons acting on behalf of the ROW user, including
contractors or subcontractors, has a history of non-compliance or
permitting non-compliance within the City. For purposes of this Section, "history of non-compliance or permitting non-compliance within the
City" shall include the ROW user or any persons acting on
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.
3.
The
City has provided the ROW user with a reasonable, competitively neutral
and non-discriminatory justification for requiring an alternative
method for performing the excavation or work identified in the right-of-way
permit application or a reasonable alternative route that will not
result in additional installation expense of more than ten percent
(10%) to the ROW user or a declination of service quality.
4.
The
City determines that the denial is necessary to protect the public
health and safety, provided that the authority of the City does not
extend to those items under the jurisdiction of the PSC, such denial
shall not interfere with a ROW user's right of eminent domain of private
property, if any, and such denials shall only be imposed on a competitively
neutral and non-discriminatory basis. In determining whether denial
of a right-of-way permit application is necessary to protect the public
health and safety, the City Engineer may consider one (1) or more
of the following factors:
a.
The
extent to which the right-of-way space where the right-of-way permit
is sought is available, including the consideration of competing demands
for the particular space in the right-of-way or other general conditions
of the right-of-way.
b.
The
applicability of any ordinance, Code provision or other regulations
that affect the location of facilities in the right-of-way.
c.
The
degree and nature of disruption to surrounding communities and businesses
that will result from the use of that part of the right-of-way, including
whether the issuance of a right-of-way permit for the particular dates
and/or times requested would cause a conflict or interfere with an
exhibition, celebration, festival or any other event.
5.
The
area is environmentally sensitive as defined by State Statute or Federal
law or is a historic district defined by local ordinance.
6.
The
failure to comply with applicable City ordinances or any other reason
that would constitute a lawful basis for revocation or denial of a
permit to reasonably manage the rights-of-way and protect the public
from interference or improper use of the public assets.
J.
The City
Engineer may deny an application for the previous listed reasons if
deemed in the public's interest.
1.
If a
permit is denied due to the location of the planned facilities, the
City Engineer will cooperate with the applicant to identify alternative
routes which most nearly match the routes requested by applicant for
the placement of facilities.
2.
Applicant
may appeal any final decision of the City Engineer to the Mayor or
City Administrator, which appeal shall be acted upon by the Mayor
or City Administrator within five (5) business days, and if denied
by the Mayor or City Administrator, the applicant may then appeal
to the Board of Aldermen of the City which shall act upon the appeal
within sixty (60) days.
K.
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 activities
within the rights-of-way and will not be used to generate revenue
to the City above such costs. The City may not require or accept in-kind
services in lieu of any fee.
a.
A
fee charged to recover the City's actual costs for an applicant's
facilities work in the right-of-way including the costs of processing
permits, inspections and administration of this Chapter, excluding
legal fees relating to the interpretation or enforcement of the Chapter
including all such appeals, a permit fee will be charged as determined
by the City Engineer but shall not be greater than one hundred dollars
($100.00).
[Ord. No. 4.600 §VI, 9-12-2005]
A.
The City
may, after reasonable notice and an opportunity to cure, revoke a
right-of-way permit granted to a ROW user without a fee refund, if
one (1) or more of the following occurs:
1.
A material
violation of a provision of the right-of-way permit, including the
violation of any provision of this Chapter or of any additional provisions
of a specific permit;
2.
An evasion
or attempt to evade any material provision of the right-of-way permit
or the perpetration or attempt to perpetrate any fraud or deceit upon
the political subdivision or its citizens;
3.
A material
misrepresentation of fact in the right-of-way permit application;
4.
A failure
to complete excavation or work by the date specified in the right-of-way
permit, unless a right-of-way permit extension is obtained or unless
the failure to complete the excavation or work is due to reasons beyond
the ROW user's control;
5.
A failure
to correct, within the time specified by the City, excavation or work
that does not conform to applicable national safety codes, industry
construction standards or applicable City Code provisions or safety
codes that are no more stringent than national safety codes or provisions,
upon inspection and notification by the City of the faulty condition.
[Ord. No. 4.600 §VII, 9-12-2005]
A.
Oversight Of Facilities Work.
1.
Applicants
shall comply with all City Codes and ordinances.
2.
Facilities
work shall be subject to periodic inspection by the City.
3.
The
City Engineer shall have full access to all portions of facilities
work and may issue stop work orders and corrective orders to prevent
unauthorized work. Such corrective or stop work orders shall state
that work not authorized by the permit is being carried out, summarize
the unauthorized work and provide a period of not longer than thirty
(30) days to cure the problem, which cure period may be immediate
if certain activities must be ceased to protect the public safety,
and may be delivered personally or by certified mail to the address
listed on the application for permit or to the person in charge of
the construction site at the time of delivery. Such orders may be
enforced by equitable action in the Circuit Court of Platte County,
Missouri, and if the City prevails in such case, the person involved
in the facilities work shall be liable for all costs and expenses
incurred by the City, including reasonable attorney's fees, in enforcing
such orders in addition to any and all penalties established in this
Chapter. Parties may, if both agree, have the right to have the matter
resolved by mediation or binding arbitration pursuant to Section 67.1838,
RSMo.
4.
Any
person who engages in facilities work in the public rights-of-way
and who has not received a valid permit from the City shall be subject
to all requirements of this Chapter. Except in those instances where
facilities work must be performed on an emergency basis, the City
may, 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 area 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.
5.
Records. Owners of facilities 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. Applicants that maintain more than one thousand
(1,000) lineal feet of facilities within the public rights-of-way
shall, within twelve (12) months of the passage of this Chapter, file
with the City Engineer a current map of those portions of the owner's/franchisee's
system which lie within the public rights-of-way. Maps furnished to
the City Engineer shall show the location of facilities and their
relationship to existing street or right-of-way. The information shall
be solely for use by the City, and no other person may seek to obtain
or have access to such maps and/or records.
6.
Assignment of permit. The rights granted by this Chapter
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 expressed written notice to the City. Any such notice
shall not be required for entities that are controlled by or are under
common control with applicant.
7.
Termination of permit and removal of installations. Should
any applicant fail to abide by the terms of a permit, the Board of
Aldermen may, after thirty (30) days' written notice of breach or
default, and after a public hearing in which applicant has been afforded
due process, terminate a permit if applicant has failed to undertake
reasonable steps to cure such default. Upon such termination, the
City may order the removal of any of applicant's installations under
this permit and if applicant should refuse, the City may remove such
installations at applicant's expense.
B.
Construction Standards.
1.
The
construction, operation, maintenance and repair of facilities shall
be in accordance with applicable health, safety and construction codes
adopted by the City.
2.
All
facilities shall be installed and located with due regard for minimizing
interference with the public, including the City and other owners
of facilities of the rights-of-way.
3.
Before
initiating construction on City streets and public rights-of-way,
applicant will make all reasonable efforts to use existing infrastructure
for new facilities (i.e., existing poles and conduit, etc.). However
an applicant shall not place facilities where they will damage or
interfere with the use or operation of previously installed facilities
or obstruct or hinder the various utilities serving the residents
and businesses in the City or their use of any public rights-of-way.
4.
Any
contractor or subcontractor used for facilities work must be properly
licensed under laws of the State and all applicable local ordinances,
and each contractor or subcontractor shall have the same obligations
with respect to its work as an applicant would have hereunder and
shall be responsible for ensuring that the work of contractors and
subcontractors is performed consistent with its permits and applicable
law, shall be fully responsible for all acts or omissions of contractors
or subcontractors, and shall be responsible for promptly correcting
acts or omissions by any contractor or subcontractor.
5.
Requirements
concerning the restoration and maintenance of the public rights-of-way
during and after construction of the facilities work shall conform
to the Kansas City Chapter of American Public Works Association's
Standard Specifications and Design Criteria as may be amended from
time to time.
6.
The
Standard Specifications may be deviated from in special situations
where an alternative design is deemed, by the City Engineer, to be
necessary or more appropriate under the circumstances to insure conformance
with the performance standards underlying the Standard Specifications.
The City Engineer shall notify facility owners and contractors of
deviations or changes from the Standard Specifications at least fifteen
(15) days prior to the implementation of the effected project.
C.
Restoration And Guarantee Of Work.
1.
The
ROW user shall be liable for any damages to facilities due to excavation
or facilities work performed prior to obtaining the location of all
facilities in the area in which the excavation or facilities work
is to be performed or for any damage to facilities that have been
properly identified prior to excavation or work. The ROW user shall
not make or attempt to make repairs, relocation or replacement of
damaged or disturbed facilities without the approval of the owner
of the facilities.
2.
The
ROW user shall be responsible for removing said debris from the right-of-way.
If the ROW user fails to remove debris from the right-of-way, the
ROW user shall be responsible for damages to the City or its contractors
resulting from such failure and shall indemnify the City and its contractors
as provided herein and pay the costs for remedying such failure.
3.
In the
event the ROW user severely disturbs or damages the root structure
of any tree or landscaping in the right-of-way to the detriment of
the public safety, survival of such tree or landscaping, the ROW user
shall be required to remove and replace the landscaping or tree at
the ROW user's cost. Further, in review of the ROW user's plan, the
City Engineer, in his/her discretion, may require the ROW user to
directionally bore in the right-of-way.
4.
After
any excavation or work, the ROW user shall, at its expense, promptly
restore all portions of the right-of-way to the same condition or
better condition than it was prior to the excavation or work. If the
ROW user fails to restore the right-of-way in the manner and to the
condition required by the City Engineer or fails to satisfactorily
and timely complete all restoration, the City, at its option, may
perform its own restoration excavation or work and prosecute same
to completion by contract or otherwise. The ROW user and its surety
shall be liable to the City for its actual costs of such restoration,
including the value of any time or overtime incurred through the labor
of City employees, the value of the use of City equipment, and the
cost of City materials used in the restoration project.
5.
In restoring
the right-of-way, the ROW user shall guarantee its excavation or work
and shall maintain it for a period of forty-eight (48) months or for
the maximum period of time allowed by law, whichever is greater, following
its completion. During said guarantee period the ROW user shall, upon
notification from the City Engineer, correct all restoration excavation
or work to the extent necessary using any method as required by the
City Engineer. Said excavation or work shall be completed within a
reasonable time not to exceed thirty (30) calendar days of the receipt
of notice from the City Engineer (not including days during which
work cannot be done because of circumstances constituting force majeure
or days when work is prohibited as unseasonable or unreasonable).
In the event the ROW user is required to perform new restoration pursuant
to the foregoing guarantee, the City Engineer shall have the authority
to extend the guarantee period for such new restoration for up to
an additional forty-eight (48) months or other greater period allowed
by law, from the date of the new restoration, if the City Engineer
determines there was action by the ROW user not to comply with the
conditions of the right-of-way permit and any restoration requirements.
The guarantee period shall be applicable to failure of the pavement
surface as well as failure below the pavement surface.
[Ord. No. 4.600 §VIII, 9-12-2005]
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 or other surety in
the penal sum of two thousand dollars ($2,000.00), approved by the
City Clerk and in proper form approved by the City Attorney. Owners
of facilities that maintain more than one thousand (1,000) lineal
feet of facilities within the public right-of-way and franchisees
shall establish in the City's favor a performance bond or other surety
in the penal sum of five thousand dollars ($5,000.00), approved by
the City Clerk, and in proper form approved by the City Attorney.
Differences in bond requirements, including provisions for self-insurance
or provisions for a single continuing bond where facilities work is
conducted by the same applicant under numerous permits, may be established
by regulation based on the extent or nature of the facilities work,
the past performance of the applicant and not based on the characteristics
of the applicant.
In the event an applicant fails to complete the facilities work
in a safe, timely and competent manner or fails to satisfy the guarantee
of such work as provided herein, the City shall be entitled to recover,
jointly and severally from the principal and surety of the bond, any
damage or loss suffered by the City as a result plus a reasonable
allowance for attorneys' fees.
2.
Upon
completion of the facilities work to the satisfaction of the City
Engineer, the City Engineer shall eliminate the bond or reduce its
amount after such time appropriate to determine whether the work performance
was satisfactory, which time shall be established by the City Engineer
considering the nature of the work performed, and which may allow
for reasonable bond amounts to remain to secure the guarantee requirement.
In any event, the entire bond shall be released timely after the expiration
of guarantee period; provided the ROW user has satisfied the guarantee
requirements.
3.
A performance
bond shall be issued in a form of surety acceptable to the City and
shall contain an endorsement substantially as follows:
"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."
4.
Recovery
by the City of any amounts under the performance bond does not limit
an applicant's duty to indemnify the City in any way, nor shall such
recovery relieve or limit an applicant of its obligations under a
permit or reduce the amounts owed to the City other than by the amounts
recovered by the City under the performance bond or in any respect
prevent the City from exercising any other right or remedy it may
have.
B.
Cost Recovery.
1.
In the
event that an excavation is not refilled within a reasonable time
after it is ready for refilling, the City Engineer shall notify the
applicant 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.
2.
In the
event that the applicant fails to backfill, repair or repave any excavations
made within the public rights-of-way, the City shall, at its option,
repair said cut with City employees forces 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 forces, the
charges shall be based on the unit price paid on the most recent street
improvement or pavement repair contract issued by the City Engineer.
3.
In the
event the City incurs additional costs as a direct result of an unauthorized
action or an inaction by any person and/or owner of facilities, the
City shall have the right to recover from that person or owner 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 rights-of-way.
C.
Exemption. If a ROW user has twenty-five million dollars
($25,000,000.00) in net assets and does not have a history of non-compliance
or permitting non-compliance within the City, then the ROW user shall
not be required to maintain a performance or maintenance bond but
shall be deemed liable directly for payment under the same obligations
as if a bond had been required.
D.
Penalties. For each substantial breach pursuant to Section
67.1836, RSMo., as to which the City has given notice to applicant
as provided in this Chapter, penalties may be chargeable to the applicant
at a rate not exceeding one hundred dollars ($100.00) per day for
so long as the violation continues.
[Ord. No. 4.600 §IX, 9-12-2005]
A.
Whenever
the City shall in its exercise of the public interest request of the
ROW user the relocation or reinstallation of any of its facilities,
ROW user shall forthwith remove, relocate or reinstall any such property
as may be reasonably necessary to meet the request and the cost of
such relocation, removal or reinstallation of the facilities shall
be the exclusive obligation of said ROW user without expense to the
City. ROW user shall upon request of any other person requesting relocation
of facilities and holding a validly issued building or moving permit
of the City and within seven (7) days prior to the date upon which
said person intends to exercise its rights under said permit, ROW
user shall thereupon temporarily raise, lower or relocate its wires
or other facilities as may be required for the person to exercise
the rights under the permit, and ROW user may require such permit
holder to make payment in advance for any expenses incurred by said
ROW user pursuant to said person's request.
B.
If any
facilities are not relocated in accordance with this Section and within
the reasonable time frames required by the City, the City or its contractors
may relocate the facilities and the ROW user and its surety shall
be liable to the City for any and all costs incurred by the City.
[Ord. No. 4.600 §X, 9-12-2005]
A.
Compliance With Laws. Each applicant shall comply with all
applicable Federal and State laws as well as City ordinances, resolutions,
rules and regulations heretofore and hereafter adopted or established.
B.
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 right-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 Chapter.
3.
Except
where rights are expressly granted or waived by a permit, they are
reserved, whether or not expressly enumerated. This Chapter may be
amended from time to time and in no event shall this Chapter be considered
a contract between the City and an applicant such that the City would
be prohibited from amending any provision hereof.
C.
Construction Of Applicable Federal, State And City Law. This
Chapter shall be construed in a manner consistent with all applicable
Federal, State and local laws. Notwithstanding any other provisions
of this Chapter to the contrary, the construction, operation and maintenance
of the ROW user's facilities shall be in accordance with all laws
and regulations of the United States, the State and any political
subdivision thereof or any administrative agency thereof having jurisdiction.
In addition, the ROW user shall meet or exceed the most stringent
technical standards set by regulatory bodies, including the City,
now or hereafter having jurisdiction. The ROW user's rights are subject
to the Police powers of the City to adopt and enforce ordinances necessary
to the health, safety and welfare of the public. The ROW user shall
comply with all applicable laws and ordinances enacted pursuant to
that power. The failure of the ROW user to comply with any applicable
law or regulation may result in a forfeiture of any permit or authorization
granted in accordance with this Chapter.
D.
Indemnification. As a condition of use of the rights-of-way,
ROW user at its sole cost and expense shall indemnify, protect, defend
(with counsel acceptable to the City) and hold harmless the City,
its elected officials, officers, employees and agents from and against
any and all claims, demands, losses, damages, liabilities, fines,
charges, penalties, administrative and judicial proceedings and orders,
judgments, remedial actions of any kind, and all costs and expenses
of any kind including, without limitation, reasonable attorney's fees
and costs of defense arising, directly or indirectly, in whole or
in part, out of the fact that the City approved an agreement or franchise
with ROW user, the rights granted to ROW user or the activities performed
or failed to be performed by ROW user under any approval or by use
of the rights-of-way or otherwise, except to the extent arising from
or caused by the sole or gross negligence or willful misconduct of
the City, its elected officials, officers, employees, agents or contractors.
This indemnification shall survive the expiration or termination of
any agreement or use of the rights-of-way for a period of five (5)
years after the effective date of expiration or termination.
E.
Rights And Remedies.
1.
The
exercise of one (1) remedy under this Chapter 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 Chapter.
3.
No applicant
shall be relieved of its obligation to comply with any of the provisions
of this Chapter by reason of any failure of the City to enforce prompt
compliance.
4.
The
City reserves unto itself every right and power which is required
to be reserved by a provision of any ordinance under any agreement,
franchise, permit or other authorization granted under this Chapter
and as may be authorized by Sections 67.1830 — 67.1846, RSMo.,
and other authority applicable to regulation of the use of the rights-of-way.
F.
Advertising, Signs Or Extraneous Markings. A ROW user shall
not place or cause to be placed any sort of signs, advertisements
or other extraneous markings, whether relating to ROW user or any
other person or entity on the public right-of-way, except such necessary
minimal markings as approved by the City as are reasonably necessary
to identify the facilities for service, repair, maintenance or emergency
purposes or as may be otherwise required to be affixed by applicable
law or regulation.
G.
Tree Trimming. Unless otherwise approved in writing by the
City or as part of an approved tree trimming plan or in the attachment,
installation, removal, reattachment, reinstallation, relocation or
replacement or otherwise of the facilities, ROW user shall neither
remove, cut, nor damage any trees or their roots in and along the
streets, alleys and public places of the City. Tree trimming and pruning
may be permitted to occur only after prior written notice to the City.
H.
Antennae And Wireless Communications Equipment. Towers, antennae, antennae structures and ground-mounted wireless communications equipment shall not be placed in the right-of-way except as may be permitted by the City's Communication Tower Ordinance (Section 405.310 of this Code) and any other regulations relating to placement of wireless communications antennae, structures and towers and only with prior agreement approved by the Board establishing such conditions as to the design, number, location and compensation or reimbursement of costs, if any, and other reasonable considerations. All such decisions shall be made on a competitively neutral and non-discriminatory manner.
I.
Taxes. ROW users shall be responsible for all applicable
business license taxes, sales taxes, occupation taxes, franchise fees
or taxes, property taxes, other similar taxes, permit fees and other
right-of-way management costs.
J.
Force Majeure. An applicant shall not be deemed in violation
of provisions of this Chapter where performance was rendered impossible
by war or riots, civil disturbances, floods 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, safety and
integrity of the applicant's employees or property, the public, public
rights-of-way, public property or private property.
K.
Calculation Of Time. Unless otherwise indicated, when the
performance or doing of any act, duty, matter or payment is required
under this Chapter 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.
L.
Severability. If any term, condition or provision of this
Chapter shall, to any extent, be held to be invalid or unenforceable,
the remainder hereof 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.
M.
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 the applicant through the exercise
of the power of eminent domain.
N.
Standards Applicable To City. Any standards in this Chapter
relating to facilities work shall be fully applicable to work performance
by the City and its departments.
O.
Rights In The Event Of Abandonment. In the event that the
Governing Body of the City closes or abandons any right-of-way, which
contains the facilities of the applicant installed hereunder, any
land contained in such closed or abandoned right-of-way shall be subject
to the rights of the applicant.
P.
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.
