[R.O. 2004 § 505.020; Ord. No.
01-34 § 1, 12-11-2001]
To the extent permitted by law, this Article shall apply to
all persons desiring to construct, operate or maintain facilities
in, along, across, under or over public rights-of-way within the City.
[R.O. 2004 § 505.030; Ord. No.
01-34 § 2, 12-11-2001]
For the purposes of this Article, the following terms, phrases,
words and abbreviations shall have the meanings given herein, unless
otherwise expressly stated. When not inconsistent with the context,
words used in the present tense include the future tense and vice
versa, words in the plural number include the singular number and
vice versa, and the masculine gender includes the feminine gender
and vice versa. The words "shall" and "will" are mandatory, and "may"
is permissive. Unless otherwise expressly stated or clearly contrary
to the context, terms, phrases, words and abbreviations not defined
herein shall be given the meaning set forth in the City ordinance,
and if not defined therein, their common and ordinary meaning.
The specific person applying for and receiving a permit under
this Chapter.
That form designed by the City Engineer which an applicant
must use to obtain a permit to conduct facilities work across, over
or under the City's right-of-way.
The City of Weldon Spring, Missouri.
The City Administrator or his/her designee.
The City Engineer or his/her designee.
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 any de minimis displacement or movement of
ground caused by pedestrian or vehicular traffic 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 shall not be deemed excavation.
Any conduit, duct, line, pipe, wire, hose, cable, culvert,
tube, 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.
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 the
occasional replacement of utility poles and related equipment at the
existing general location that does not involve either a street or
sidewalk cut.
A permit granted by the City Engineer to do facilities work
within the public rights-of-way.
An individual, partnership, association, joint stock company,
trust, organization, limited liability company, corporation or other
entity or any lawful successor thereto or transferee thereof, but
such term does not include the City.
The surface, the air space above the surface and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, parkway or other similar
property in which the City now or hereafter holds any property interest
which was dedicated as rights-of-way. 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. "Public rights-of-way" does not include the airwaves above
the rights-of-way with regard to cellular or other non-wire telecommunications
or broadcast services or easements obtained by utilities or private
easements in platted subdivisions or tracts.
[R.O. 2004 § 505.040; Ord. No.
01-34 § 3, 12-11-2001]
A.
Permit Requirements. Any person desiring to conduct facilities work
within public rights-of-way must first apply for and obtain a permit
in addition to any other building permit, license, easement or authorization
required by law, unless such facilities work must be performed on
an emergency basis, then the person conducting the work shall as soon
as practicable notify the City of the location of the work and apply
for the required permit by the third business day following the commencement
of the facilities work.
1.
All applications for permits shall be submitted to the City
Engineer.
2.
The City Engineer shall design and make available standard forms
for such applications, requiring such information as the City Engineer
determines to be necessary, consistent with the provisions of this
Chapter, to accomplish the purposes of this Article.
3.
Each such application shall be accompanied by payment of fees
as designated in this Article.
4.
The City Engineer shall review each application for a permit and, upon determining that the applicant has 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 (A)(5).
5.
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:
a.
Evaluate the degree of excavation necessary to perform the facilities
work in the right-of-way and determine whether the excavation will
be more than minor in nature. If the applicant can show to the City
Engineer's reasonable satisfaction that the facilities work involves
any of the following:
(1)
No significant disruption or damage to the public
rights-of-way, or
b.
For circumstances where the City Engineer determines that there will be significant excavation of the public rights-of-way and no exemption under Subsection (A)(5)(a) or any other provision of this Section applies, the City Engineer may, consistent with the time requirements set forth in this Section and in the permit, direct permit holders performing facilities work in the same area to consult on how they may schedule and coordinate their work to accomplish the goal of this Section.
6.
Each permit shall include 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;
length of public rights-of-way; number of road crossings; information
regarding scheduling and coordination of facilities work, if applicable,
and location of facilities.
7.
The City Engineer may include in permits 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.
8.
The City Engineer may deny a permit application for the following
reasons if deemed in the public's interest:
a.
Undisputed past due fees from prior permits,
b.
Failure to return the right-of-way to its previous condition
under previous permits,
c.
Undue disruption to existing utilities, transportation or City
use,
d.
Area is environmentally sensitive as defined by State or Federal
Statute.
e.
Failure to provide required information, and
f.
The applicant is in violation of the provisions of this Article.
9.
The applicant may appeal any final decision of the City Engineer
to:
10.
The applicant must pay the following fees:
a.
Any fees/escrows collected pursuant to this Section will be
used only to reimburse the City for its actual incurred cost of managing
the rights-of-way and will not be used to generate revenue to the
City above such costs.
b.
Fees/escrows are 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 Article, excluding legal fees relating to the interpretation
or enforcement of this Article, including all such appeals.
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 construction and control of
public rights-of-way.
2.
No action or omission of the City shall operate as a future
waiver of any rights of the City under this Article.
3.
The City shall have the maximum plenary authority to regulate
applications, permits and facilities work as may now or hereafter
be lawfully permissible. Except where rights are expressly granted
or waived by a permit, they are reserved, whether or not expressly
enumerated. This Article may be amended from time to time, and in
no event shall this Article be considered a contract between the City
and an applicant such that the City would be prohibited from amending
any provision hereof.
[R.O. 2004 § 505.050; Ord. No.
01-34 § 4, 12-11-2001]
A.
Oversight Of Facilities Work.
1.
An applicant shall construct, operate and maintain facilities
subject to the supervision of the City Officials who have jurisdiction
in such matters and in strict compliance with this Article, all applicable
zoning and construction permitting ordinances, departmental rules
and regulations.
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 time
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 St. Charles 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 attorneys' fees in enforcing such orders, in
addition to any and all penalties established in this Article.
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 Article. Except in those instances where
facilities work must be performed on an emergency basis, the City
may, in its discretion, at any time until a permit is secured, order
the facilities work stopped and do any of the following: require such
person to apply for a permit within ten (10) days of receipt of a
written notice from the City that a permit is required; require such
person to remove its property and restore the affected area to a condition
satisfactory to the City; or take any other action it is entitled
to take under applicable law, including, but not limited to, filing
for and seeking damages.
B.
Construction Standards.
1.
The construction, operation, maintenance and repair of facilities
shall be in accordance with applicable health, safety and construction
codes.
2.
All facilities shall be installed and located with due regard
for minimizing interference with the public and with other utility
users of the rights-of-way, including the City.
3.
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 of their use of any public rights-of-way.
4.
Any and all public rights-of-way disturbed or damaged during
the facilities work shall be promptly repaired or replaced by the
applicant to its previous condition.
5.
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 applicable laws if the work were performed by the applicant. The
applicant 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 subcontractors.
[R.O. 2004 § 505.060; Ord. No.
01-34 § 5, 12-11-2001]
A.
Performance Bond.
1.
Prior to any facilities work in the public rights-of-way, an
applicant shall establish in the City's favor a performance bond
in an amount determined by non-discriminatory regulations promulgated
by the City Engineer as necessary to ensure the applicant's faithful
performance of the facilities work. 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 and the past performance
of the applicant. In lieu of a performance bond, applicant may provide
an acceptable substitute with the approval of the City Engineer.
2.
In the event an applicant fails to complete the facilities work
in a safe, timely and competent manner, there shall be recoverable,
jointly and severally from the principal and surety of the bond, any
damages or loss suffered by the City as a result, plus a reasonable
allowance for attorneys' fees, up to the full amount of the bond.
3.
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 a time appropriate to determine whether the work
performed was satisfactory, which time shall be established by the
City Engineer considering the nature of the work performed.
4.
A performance bond shall be issued by a surety acceptable to
the City and shall contain the following endorsement:
|
"This bond may not be canceled or allowed to lapse until sixty
(60) days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
|
5.
The applicant shall, at its sole cost and expense, indemnify,
hold harmless and defend the City, its officials, boards, board members,
commissions, commissioners, agents and employees against any and all
claims, suits, causes of action or proceedings and judgments for damages
or equitable relief which are caused by the acts, errors and omissions
of applicant arising out of the construction and maintenance of its
facilities.
6.
Recovery by the City of any amounts under the performance bond
or otherwise does not limit an applicant's duty to indemnify
the City in any way, nor shall such recovery relieve 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.
[R.O. 2004 § 505.070; Ord. No.
01-34 § 6, 12-11-2001]
A.
Compliance With Laws. Each applicant shall comply with all applicable
City ordinances, resolutions rules and regulations heretofore and
hereafter adopted or established.
B.
Franchises Not Superseded. Nothing herein relieves the applicant
or the City from any obligations under an existing franchise. Nothing
herein shall be deemed to relieve an applicant of the provisions of
any existing franchise, license or other agreement or permit.
C.
Rights And Remedies.
1.
The exercise of one (1) remedy under this Article shall not
foreclose use of another, nor shall the exercise of a remedy or the
payment of damages or penalties relieve an applicant of its obligations
to comply with its permits. Remedies may be used alone or in combination;
in addition, the City may exercise any rights it has at law or equity.
2.
The City hereby reserves to itself the right to intervene in
any suit, action or proceeding involving any provisions of this Article.
3.
No applicant shall be relieved of its obligation to comply with
any of the provisions of this Article by reason of any failure of
the City to enforce prompt compliance.
D.
Incorporation By Reference. Any permit granted pursuant to this Chapter
shall by implication include a provision that shall incorporate by
reference this Chapter into such permit as fully as if copied therein
verbatim.
E.
Force Majeure. An applicant shall not be deemed in violation of provisions
of this Article 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 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
right-of-way, public property or private property.
F.
Calculation Of Time. Unless otherwise indicated, when the performance
or doing of any act, duty, matter or payment is required under this
Article or any permit and a period of time is prescribed and is fixed
herein, the time shall be computed so as to exclude the first and
include the last day of the prescribed or fixed period of time.
G.
Severability. If any term, condition or provision of this Article
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.
[R.O. 2004 § 505.080; Ord. No.
01-34 § 7, 12-11-2001]
The provisions hereof shall specifically apply to any lands
or property annexed as of the date of such annexation.
[R.O. 2004 § 505.090; Ord. No.
01-34 § 8, 12-11-2001]
Whenever, by reason of changes in the grade or widening of a
street or in the location or manner of constructing a water pipe,
drainage channel, sewer or other City-owned underground or aboveground
structure, it is deemed necessary by the City to move, alter, change,
adapt or conform the underground or aboveground facilities of the
user, the user shall make the alterations or changes on alternative
right-of-way provided by the City, if available, as soon as practicable
after being so ordered in writing by the City without claim for reimbursement
or damages against the City.
[R.O. 2004 § 505.100; Ord. No.
01-34 § 9, 12-11-2001]
Any standards in this Article relating to facilities work shall
be fully applicable to work performed by the City and its departments.
