Article I Excavations in Rights-of-Way
Article II Rights-of-Way Management
[R.O. 2008 §550.010; Ord. No. 4959 §1, 3-11-1991]
No person shall make, or cause to be made, any cuts or excavations in, through or under any street, alley, sidewalk, parkway, boulevard or public place in the City, for any purpose whatsoever, without a permit therefor being first obtained from the City Clerk, as the case may be, which permit shall not be issued until the application has complied with Section 550.020. A separate permit shall be obtained for each cut or excavation to be made. Said cut or excavation shall be begun within ten (10) days from the date of the issuance of the permit therefor, and in the event of default thereof, a new permit or extension of the original permit shall be required before the cut or excavation is made.
The sum of twenty-five dollars ($25.00) shall be charged for each and every permit issued. All applications for such permits shall be signed by the person, or his/her duly authorized agent, who desires to do the work designated in said application. Said application shall not be assignable, and no person shall allow his/her name to be used to obtain a permit for any other person. The application for said permit shall designate on the map or diagram to be filed in connection with the application, the location of the proposed cut or excavation to be made in such a manner that the house number or lot number in front of which and the side of the street, alley, sidewalk, parkway, boulevard, or public place on which the same is to be made shall be plainly indicated. The map or diagram shall also show the dimensions and character of the proposed cut or excavation. The application for said permit shall set forth the type of surface through which the cut or excavation is to be made and the number of square feet of street, alley or sidewalk which must be resurfaced as a result of said excavation or cut.
[R.O. 2008 §550.030; Ord. No. 4959 §1, 3-11-1991]
Before any permit under this Chapter shall be issued for making any cut or excavation in, through or under any street, alley, sidewalk, parkway or public place in the City, the applicant for such permit shall have deposited with the City Clerk a sum of lawful money of the United States to cover the cost of refiling, repaving and resurfacing such cuts and excavations, as based on the estimate in said application for a permit, and the charges for refilling, resurfacing and repaving any street, alley or sidewalk as set forth in Section 550.050.
[R.O. 2008 §550.040; Ord. No. 4959 §1, 3-11-1991]
The person making a cut or excavation as herein provided shall make it in the manner designated on the permit obtained for that purpose.
The person making a cut or excavation shall cause the same to be done with the least possible injury to the street, alley, sidewalk, parkway, boulevard or public place, and shall remove the paving material and excavated earth therefor in such a manner as to cause the least possible inconvenience to the public and to permit uninterrupted passage of water along the gutters. The width of the cut or excavation shall be no greater than is necessary for doing the work.
[R.O. 2008 §550.050; Ord. No. 4959 §1, 3-11-1991]
The person making a cut or excavation in, through or under any parkway shall refill the same as soon as practicable after the excavation is ready for refilling. It shall be by one (1) of the following methods:
Refilling with clean unfrozen earth free from trash, rubbish or rocks over three inches (3) in maximum dimension, in layers not exceeding six inches (6) in height, and compacting each layer thoroughly; or
Refilling with sand to a point eight (8) inches below the surface with clean unfrozen earth for the top eight (8) inches, said earth refilled to be thoroughly compacted.
The person making such refill shall be required to clean up and haul away all surplus earth, rock or rubbish immediately after said refill has been completed, and in the event of default thereof the City shall have the right to remove such earth, rock or rubbish and charge the cost of such removal to the person who received the permit. Such person shall not be issued another permit until said charge has been paid.
In the event of settlement due to defective refill, the City shall have the right to make whatever repairs are required to restore the excavation to a proper condition and to charge the cost thereof to the person to whom the permit was issued, and such person shall not be issued another permit until said cost has been paid.
In the event said excavation is not refilled within a reasonable time after it is ready for refilling, the City Clerk shall notify the person making the excavation that if the same is not filled within four (4) days, it will be filled by the City and charge for the cost of the same shall be paid by the permit holder within ten (10) days after completion and no additional permit shall be issued to that person after that time unless that charge has been paid.
[R.O. 2008 §550.060; Ord. No. 4959 §1, 3-11-1991]
The repaving and resurfacing of said cuts or excavations made in the City streets and alleys shall be the responsibility of the permit holder.
Street cuts shall be made in such a manner to minimize damage to the street and other immediate areas. The person making the excavation shall refill the trench as soon as possible with materials accepted by the City. Surfaces of street cuts shall be replaced as soon as possible to meet City specifications. The permittee shall be responsible for removing any residual materials and clean site. If surface repair is performed by City personnel, the costs of such work as outlined in the Uniform Administrative Code, will be assessed to the permit holder.
[R.O. 2008 §550.070; Ord. No. 4959 §1, 3-11-1991]
Every person who shall for any purpose make, or cause to be made, any cut or excavation in, upon, through, under or adjoining any street, alley, sidewalk, parkway, boulevard or other public place, and shall leave any part or portion thereof open, or shall leave any part or portion thereof obstructed with rubbish, building or other material during the time said work is being done, he/she shall cause the same to be enclosed with good, substantial, and sufficient barriers not less than three (3) feet high, and at nighttime he/she shall cause one (1) red light or flare to be securely and conspicuously posted in or near such cut or excavation, building material or obstruction, provided such obstruction does not extend more than eight (8) feet in length; and if over eight (8) feet and less than sixteen (16) feet in length, two (2) red lights or flares, one (1) at each end, shall be so placed; and if exceeding sixteen (16) feet in length, an intermediate red light or flare shall be placed between the two (2) end lights, and an additional intermediate red light or flare shall be placed for each eight (8) feet of additional length of the cut or excavation, building material or obstruction; and when the cut, excavation, building material or obstruction is made or placed in the direction of travel, a red light shall be placed at each end of the same, when as much as twenty (20) feet and less than fifty (50) feet in length, and when exceeding fifty (50) feet in length, one (1) intermediate light shall be placed for each additional fifty (50) feet, or fraction thereof, and shall keep such lights burning from sunset to sunrise.
The making of said cut or excavation, the placing or repairing of facilities therein, and the refilling parkway way of a cut or excavation shall be done as expeditiously as possible, consistent with good construction practice, and if same is not done, in the opinion of the Code Enforcement Officer, said Code Enforcement Officer shall have the right to perform, or cause to be performed, the remaining work and charge the cost thereof against the deposit of the person to whom the permit was issued.
Whenever a person shall excavate the full width of any street, sidewalk, alley, parkway, boulevard or public place, it shall be his/her duty to maintain a substantial walkway or driveway across said excavation until it is refilled.
[R.O. 2008 §550.080; Ord. No. 4959 §1, 3-11-1991]
Whenever any property owner or any person representing him/her shall have stated in his/her application for a permit to excavate through or under said sidewalk, that he/she desires to repair said sidewalk, himself or by his/her representative, and that he/she will guard said excavation or defective sidewalk until such repairs are made, by barricades and lights as provided in this Chapter, and that such sidewalk shall be repaired immediately after the excavation through or under said sidewalk has been completed, then such property owner or his/her representative shall have the right to repair said sidewalk, provided such repair is made under the supervision and inspection of the Code Enforcement Officer.
[R.O. 2008 §550.090; Ord. No. 4959 §1, 3-11-1991]
The City may prescribe such rules and regulations to be followed and performed by any person engaged in excavating streets, alleys, sidewalks, boulevards, parkways and public places, as may be necessary for the safety and convenience of the public and the proper handling and dispatch of the work; provided however, that no rules or regulations shall be contrary to the provisions of this Chapter.
[Ord. No. 7516 §2, 4-8-2013]
It shall be the policy of the City to authorize use of the rights-of-way in a manner that minimizes interference to the public use and minimizes the burden on the rights-of-way physically and aesthetically to the full extent permitted by law. Any use of the rights-of-way by any person shall be subject to the terms and conditions hereof, in addition to all applicable Federal, State or local requirements, and nothing herein shall be enforced or interpreted to contravene any superseding law, including but not limited to §67.1830 et seq., RSMo., to the extent applicable to any given circumstance.
The right granted to a person to use the rights-of-way is limited to the use that the person has filed with the City and approved in accordance with this Article. These rights shall grant non-exclusive use only to that person except where otherwise provided herein or when expressly authorized by the City.
[Ord. No. 7516 §2, 4-8-2013]
The following definitions shall apply to this Section, except that where the definitions set forth in §67.1830, RSMo., as may be amended, are required by law to apply to specific uses of the rights-of-way, such definitions shall apply to such circumstances:
- The City of Maryville, Missouri, a municipal corporation and any duly authorized representative.
- The City Council of the City of Maryville, Missouri.
- EXCAVATION PERMIT
- The authorization required to make excavations for the construction, installation, repair or maintenance of any type of facility within the rights-of-way.
- FACILITIES MAINTENANCE
- Any significant work for the construction, installation, repair or maintenance of any type of facility within the rights-of-way that does not involve excavation but will require any traffic lanes to be obstructed for more than four (4) hours, manhole covers or safety barriers removed or altered, or temporary or other barricades to be installed.
- FACILITIES MAINTENANCE PERMIT
- The authorization required to do facilities maintenance.
- All/any lines, pipes, irrigation systems, wires, cables, conduit facilities, poles, towers, vaults, pedestals, boxes, or other equipment owned or controlled by an entity other than the City.
- GOVERNMENTAL ENTITY
- Any subdivision of the governments within the United States of America.
- An excavation permit or a facilities maintenance permit.
- An individual, person or body natural or corporate.
- The Missouri Public Service Commission.
- PUBLIC EASEMENT
- Any easement for utilities, access, or other use dedicated to the City or in the name of the City irrespective of whether the easement is held in trust by the City for private and public users and regardless of whether private utilities or others in addition to or other than the City are actually using the easements.
- PUBLIC IMPROVEMENT
- Any public project undertaken by the City for the public good.
- PUBLIC LANDS
- Any real property owned by the City not used as rights-of-way or considered to be rights-of-way.
- RESELLER SERVICE PROVIDER
- A person providing service within the City that does not have its own facilities in the rights-of-way, but instead uses the rights-of-way by interconnecting with or using the network elements of another ROW user utilizing the rights-of-way, and/or by leasing excess capacity from a ROW user.
- Returning the rights-of-way surface to its original condition, or better.
- RIGHTS-OF-WAY or ROW
- The area on, below or above a public roadway, highway, street
or alleyway in which the City has an ownership interest, and including
such adjacent areas of such public ways within such ownership interest
as made available by the City for rights-of-way use herein, but not
including:[Ord. No. 7830 §4, 3-14-2016]
- 1. Easements obtained by utilities or private easements in platted subdivisions or tracts;
- 2. Railroad rights-of-way and ground utilized or acquired for railroad facilities;
- 3. 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 utility owned or operated by a governmental entity pursuant to Chapter 91, RSMo., or pursuant to a charter form of government; or
- 4. Use of the airwaves above the public rights-of-way with regard to cellular or other non-wire telecommunications or broadband service.
- RIGHTS-OF-WAY USER OR ROW USER
- Such persons and entities maintaining, constructing or installing facilities in the public rights-of-way of the City unless otherwise expressly exempted by law. The term shall not include persons only using the rights-of-way for incidental uses authorized pursuant to Section 550.120(A)(3) to the extent as may be exempted or limited by the terms of such approval. The term also shall not include the City; provided that the City shall nevertheless comply with all such requirements applicable to ROW users to the extent such compliance is otherwise required by applicable State or Federal law.
- ROW ADMINISTRATOR
- The Director of Public Works of the City of Maryville, who shall be the principal City official responsible for administration of this Article, or his/her designee.
[Ord. No. 7516 §2, 4-8-2013]
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 Council 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. Reseller service providers shall not be required to obtain a franchise or agreement but shall be required to register with the City on forms provided by the City prior to providing service.
Franchise. A franchise shall be required from the City in conformance with all applicable franchise procedures for any ROW user seeking to use the rights-of-way for purposes of providing or distribution of electricity, gas, water, steam, lighting, or sewer public utility service in the City, except where otherwise provided by law. Such franchise may be granted only after satisfaction of all applicable procedural or substantive requirements established by City Code or other law.
ROW agreement. A ROW agreement shall be required with the City for all ROW users not set forth in Subsection (A)(1), irrespective of any State licensing, franchise or certificate that may also be held by the ROW user, except as otherwise required herein or 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 ROW Administrator after approval by the Council.
Incidental uses. Incidental uses of the public rights-of-way may be permitted without a franchise or ROW agreement pursuant to a permit or license issued by the ROW Administrator. The ROW 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. All persons shall comply with the provisions and requirements of Chapter 545, if applicable.
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. 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.
Lease Required For Public Lands. Unless otherwise provided, use or installation of any facilities in, on or over public lands of the City not constituting rights-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.
Transferability. Except as provided in this Article or as otherwise required by law, no franchise, agreement or permit may be transferred without a written application for transfer consistent with the application provided in Subsection (E) below, and consent of the City based on the requirements and policies of this Article and only after satisfaction of all applicable procedural or substantive requirements established by City Code or other law. The City shall not unreasonably withhold its consent to transfer as provided herein, but any costs incurred by the City in excess of the application fee provided in Subsection (E) below shall be paid by the applicant.
Application For Franchise Or Agreement Required.
Application. An application for franchise or ROW agreement shall be presented to the ROW Administrator in writing and shall include all such information as is required by this Section. The ROW user shall be responsible for accurately maintaining 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 such agreement or franchise shall be submitted to the City in the amount of two thousand five hundred ($2,500.00) or as otherwise established by the ROW 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 and costs to review compliance of the applicant and any initial proposed facilities and uses, provided that no costs, if any, of litigation or interpretation of RSMo., §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 reasonably exceed the application fee, the applicant shall, after written notice from the City, pay such additional amount prior to issuance by the City of any final approval. Nothing herein shall be construed to prohibit the City from also charging reasonable compensation for use of the public rights-of-way where such a fee is not contrary to applicable law.
Application form. A ROW user shall submit a completed application for franchise or ROW agreement on such forms provided by the City, which shall include information necessary to determine compliance with this Article.
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 ROW Administrator, or as modified by the ROW Administrator in review of the specific circumstances of the application, all in conformity with the requirements of this Article and all applicable law, the ROW Administrator shall submit such franchise or agreement to the Council for approval. Upon determining compliance with this Article, the Council shall authorize execution of the franchise or 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 public 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 works or safety requirements applicable to the applicant.
No Cause Of Action. A ROW user shall have no damages remedy or monetary recourse whatsoever against the City for any loss, cost, expense, or damage arising from any of the provisions or requirements of any franchise or agreement, or from the use of the rights-of-way, and any use of the rights-of-way shall be deemed subordinate to the primary public use by the City. Nothing herein shall preclude injunctive or declaratory judgment relief where such relief is otherwise entitled under law and the requirements therefor are otherwise satisfied; provided, however, that the validity of an executed franchise or agreement shall not be subject to challenge. All franchises and ROW agreements shall be deemed to incorporate and accept all provisions of this Article unless as expressly provided to the contrary.
[Ord. No. 7516 §2, 4-8-2013]
Excavation Permit. No person shall make an excavation within the rights-of-way without first obtaining an excavation permit pursuant to Article I of this Chapter. All excavation permits shall expire after sixty (60) days from the date of issuance, unless otherwise specified in the permit.
Facilities Maintenance Permit (ROW Obstruction In Excess Of Four (4) Hours). No person shall perform facilities maintenance within the rights-of-way without first obtaining a facilities maintenance permit from the ROW Administrator, except where such facilities maintenance is expressly authorized by an existing valid excavation permit for the applicable maintenance location. In addition to the conditions set forth in Section 550.140 below, conditions of a facilities maintenance permit shall be as established in the permit. The ROW Administrator may establish a facilities maintenance permit fee to recover the City's cost in issuing and administering a facilities maintenance permit. All facilities maintenance permits shall expire after (60) sixty days from the date of issuance, unless otherwise specified in the permit.
Emergencies. In case of emergency requiring immediate attention to remedy defects, and in order to prevent loss or damage to persons or property, it shall be sufficient that the person making such excavation or facilities maintenance obtain the necessary permit as soon as possible and may proceed without a permit when such permit cannot be obtained before starting such excavation or facilities maintenance. Notice to the City of the emergency shall be provided at the earliest possible time, and a permit shall be obtained as soon as reasonably possible, or as otherwise directed by the City. Notwithstanding any other time frame or provision herein, a ROW user shall comply with any order of the City relating to an emergency as may be reasonably deemed necessary for the City to address the emergency situation.
Applicable Regulations. All ROW users and persons obtaining an excavation permit shall be subject to the permit conditions in Section 550.140 herein and all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power and are subject to all applicable laws, orders, rules and regulations adopted by governmental entities now or hereafter having jurisdiction. In addition, the ROW users shall be subject to all technical specifications, design criteria, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power relating to permits and fees, sidewalk and pavement cuts, utility location, construction coordination, surface restoration, and other requirements on the use of the rights-of-way. All persons obtaining a permit shall provide the ROW Administrator certificates of insurance showing proof of liability coverage, as required herein.
Stop Work Orders. Any ROW user found to be working without a permit, failing to provide for required safety and traffic control measures, or otherwise violating any requirements herein, may be directed to stop work until the necessary permit is obtained, the appropriate measures are implemented, or violations are discontinued or remedied in accordance with this Article.
[Ord. No. 7516 §2, 4-8-2013]
The following conditions shall apply to all excavations and to all permits issued under this Chapter unless specifically stated otherwise in the permit:
City specification; applicable codes. All excavations shall comply with the provisions of Article I of this Chapter 550, and Articles II and III of Chapter 545 if applicable, as may be amended from time to time. A ROW user shall perform all excavations in full compliance with all applicable codes, rules and regulations adopted or approved by the City pursuant to Section 550.080 of this Chapter, and in accordance with applicable statutes of the State of Missouri, and the rules and regulations of the PSC and any other local, State or Federal agency having jurisdiction over the parties. A ROW user shall be responsible for all excavations and facilities maintenance done in the rights-of-way pursuant to its permit, regardless of by whom work is done.
Permit-specific conditions. Each permit shall be deemed to incorporate the provisions of this Chapter as permit conditions. The ROW Administrator may also impose reasonable conditions upon the issuance of a permit and the performance of the ROW user in order to protect the public health, safety and welfare, to ensure the structural integrity of the rights-of-way, to protect the property and safety of other users of the rights-of-way, and to minimize the disruption and inconvenience to the traveling public.
Responsible for costs. A ROW user shall be responsible for all reasonable costs borne by the City that are directly associated with a ROW user's permit or use of the rights-of-way thereunder.
Stop work orders. Except in cases of an emergency or with approval of the ROW Administrator, no excavation or facilities maintenance may be done in violation of a stop work order issued by the ROW Administrator if in his or her determination conditions are unreasonable based on standard engineering and construction practices.
Responsible for contractors. If excavation or facilities maintenance is being done for the ROW user by another person, a general contractor, subcontractor or otherwise, the ROW user shall be responsible for ensuring that the work of said person is performed consistent with its permit and applicable law and shall be responsible for promptly correcting acts or omissions by said person.
Minimum impact required; no interference. The ROW user shall, in the performance of any excavation or facilities maintenance required for the installation, repair, maintenance, relocation and/or removal of any of its facilities, limit all excavations or facilities maintenance to that necessary for efficient operation and so as not to interfere with other users of the rights-of-way. A ROW user shall not disrupt rights-of-way such that the natural free and clear passage of water through the gutters or other waterways is interfered with. No person may park private vehicles within or next to the excavation area, except for such areas which may be designated and marked as safe areas for vehicle parking in accordance with an approved traffic control plan.
Barricades and safety devices. The ROW user assumes the sole responsibility for maintaining proper barricades, plates, safety fencing and/or lights as required from the time of opening of the excavation until the excavation is surfaced and opened for travel or during any facilities maintenance as provided in Section 550.060 of this Chapter. All traffic control devices shall be in compliance with the current version of the Manual of Traffic Control Devices (MUTCD), unless otherwise agreed to by the City. All surplus excavation materials, tools or supplies at the site shall be barricaded and lighted at night in the manner described in this Section and Section 550.060. No open excavation may be left in the pavement area without placing street plates over the opening.
Traffic control. The ROW user shall be responsible for providing adequate traffic control to the surrounding excavation or facilities maintenance area as determined by the ROW Administrator. In the event work under a permit is not completed in a reasonable period of time, the ROW user may be liable for actual damages to the City for delay caused by the ROW user pursuant to this Article.
Hours of activity. The ROW user shall perform excavations and facilities maintenance on the rights-of-way at such times that will allow the least interference with the normal flow of traffic and the peace and quiet of the neighborhood, and shall not work between the hours of 10:00 P.M. and 6:00 A.M., unless expressly authorized in a permit.
Location of facilities; undergrounding. Except as provided herein, all facilities constructed after the date of this Article shall be placed underground, except facilities may be located above ground if approved by the ROW Administrator for good cause or as may otherwise be specifically authorized in a franchise or ROW agreement consistent with law. Aboveground facilities may be installed if approved by the ROW Administrator where alternative underground facilities are not technically or economically feasible, or where the imposition of such additional costs of undergrounding on the ROW user are precluded by applicable law.
Guarantee of work. Every person to whom an excavation permit has been granted shall guarantee for a period of four (4) years the restoration of the rights-of-way in the area where such person conducted an excavation and performed the restoration. Such person shall guarantee and pay for the restoration of the rights-of-way against sagging, buckling, deterioration and other premature failures of the restoration.
Tree trimming. A ROW user shall neither remove, cut, nor damage any trees, or their roots, in and along the rights-of-way of the City except as authorized by the City pursuant to an approved tree trimming plan authorized by a permit. Tree trimming and pruning may be permitted to occur only after prior written notice to the City of the extent of trimming and pruning to be performed and the prior written approval thereof by the City.
[Ord. No. 7516 §2, 4-8-2013]
Permits issued shall be available by the ROW user at all times at the indicated work site and shall be available for inspection by the ROW Administrator, other City employees and the public.
[Ord. No. 7516 §2, 4-8-2013]
Except as provided in this Section, each ROW user shall provide, at its sole expense, and maintain during the term of an agreement or franchise, commercial general liability insurance with a reputable, qualified, and financially sound company licensed to do business in the State of Missouri, and unless otherwise approved by the City, with a rating by Best of not less than "A," that shall protect the ROW user, the City, and the City's officials, officers, and employees from claims which may arise from operations under an agreement or franchise, whether such operations are by the ROW user, its officers, directors, employees and agents, or any subcontractors of the ROW user. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all ROW user operations, products, services or use of automobiles, or construction equipment. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall be in no event less than the individual and combined sovereign immunity limits established by §537.610, RSMo., for political subdivisions; provided that nothing herein shall be deemed to waive the City's sovereign immunity. An endorsement shall be provided which states that the City is listed as an additional insured and stating that the policy shall not be canceled or materially modified so as to be out of compliance with the requirements of this Section, or not renewed without thirty (30) days' advance written notice of such event being given to the ROW Administrator. If the person 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.
A ROW user shall at all times during the term of an excavation permit, and for four (4) years thereafter, maintain a performance and maintenance bond in a form approved by the City Attorney. The amount of the bond will be $5,000.00 or the value of the restoration as determined by the ROW Administrator, whichever is greater, for a term consistent with the term of the permit plus four (4) additional years, conditioned upon the person's faithful performance of the provisions, terms and conditions conferred by this Chapter. Alternatively, unless otherwise established in the excavation permit, an annual bond in an amount of fifty thousand ($50,000.00) automatically renewed yearly during this period shall satisfy the requirement of this Section. The City shall be entitled to recover under the terms of such bond the full amount of any loss and damage occasioned from violation of the permit or provisions of this Chapter. Bonds acquired under this Section will be deemed to satisfy the deposit requirements of Section 550.020 of this Chapter.
A copy of the liability insurance certificate and performance and maintenance bond must be on file with the City Clerk. The insurance and bond requirements in this Section or otherwise shall not apply to a ROW user to the extent and for such period during an agreement or franchise as ROW user is exempted from such requirements pursuant to §67.1830(6)(a), RSMo., and has on file with the City Clerk an affidavit certifying that the ROW user has twenty-five million dollars ($25,000,000.00) in net assets and is otherwise therefore so exempted unless otherwise provided by agreement or franchise. The City reserves the right to waive any and all requirements under this Section when deemed to be in the public interest.
[Ord. No. 7516 §2, 4-8-2013]
A ROW user shall promptly remove, relocate or adjust any facilities located in the rights-of-way or in public easements as directed by the ROW Administrator for a public improvement or as necessary to eliminate a threat to public safety. Such removal, relocation or adjustment shall be performed by the ROW user at the ROW user's sole expense without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to rules, regulations and schedules of the City pertaining to such. The ROW user shall proceed with the removal, relocation, or adjustment of facilities with due diligence upon notice by the ROW Administrator to begin removal, relocation, or adjustment. Where the ROW user facilities are located in whole or in part in private easements outside the rights-of-way, the ROW user shall promptly relocate the facilities if the City has agreed to compensate the ROW user, through the condemnation, purchase process, or other reasonable means for the cost of relocation of the ROW user's facilities.
The City shall provide the ROW user with written notice of required relocations or adjustments, the anticipated bid letting date, if any, of the public improvement, and notice of the deadline for completion of the relocations or adjustments. The ROW user shall respond within ten (10) days with any conflicts and a proposed construction schedule for relocation to be completed in not more than sixty (60) days from date of the notice to the ROW user, unless such other schedule is requested and reasonably approved by the ROW Administrator. If facilities cannot be fully relocated within rights-of-way, the ROW user shall be responsible at its own cost to obtain alternative locations to timely relocate its facilities.
If any facilities are not relocated in accordance with this Section, the City or its contractors may relocate the facilities after notice to the ROW user. The ROW user and its surety shall be liable to the City for any and all costs incurred by the City. In the event the ROW user is required to move its facilities in accordance with this Section, any ordinary permit fee shall be waived. Failure to comply with the relocation schedule set by the ROW Administrator shall be a separate violation for each day subject to penalties as provided for violation of this Article.
[Ord. No. 7516 §2, 4-8-2013]
A person owning abandoned equipment or facilities in the rights-of-way must remove its facilities and replace or restore any damage or disturbance caused by the removal at its own expense. The ROW Administrator may allow underground facilities or portions thereof to remain in place if the ROW Administrator determines that it is in the best interest of public health, safety, and general welfare to do so.
Abandoned equipment or facilities are deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to:
The City may send a written notice to the owner of abandoned equipment or facilities, requesting such owner to remove the abandoned equipment or facilities within thirty (30) days of date of the written notice. If the owner of the abandoned equipment or facilities does not remove the abandoned equipment or facilities as requested in the written notice, the Council may conduct a public hearing at which all interested parties shall be entitled to be heard. If the Council finds that the facilities are in fact abandoned equipment or facilities, the Council may at its sole discretion avail itself of any such remedy provided in Subsection (B) above.
[Ord. No. 7516 §2, 4-8-2013]
Unless otherwise provided herein or by any other governing ordinance or law, any person aggrieved by a decision, fee or requirement established or made pursuant to this Article shall, prior to seeking any judicial or statutory relief, if any, file a written appeal of any such decision, fee or requirement with the Council within fifteen (15) days of such decision or imposition of such fee or requirement, specifying this provision and including specific details of the alleged claim or grievance, and an evidentiary hearing shall be held on such appeal by the Council or its designee to render a final decision. Nothing herein shall deny or preclude any additional applicable appeal remedy that may be granted by Federal or State law after such final decision.
[Ord. No. 7516 §2, 4-8-2013]
As a condition of use of the rights-of-way, the 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 attorneys' 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 the ROW user, the rights granted to the ROW user or the activities performed or failed to be performed by the ROW user under the agreement or 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.
[Ord. No. 7516 §2, 4-8-2013]
In addition to any other penalties and remedies for violations that may exist in law or equity, any person that violates any provision of this Article shall be subject to such penalties as set forth in Section 100.120 of the City Code and including a fine of up to five hundred dollars ($500.00) per day for each and every day the violation exists or continues.