Editor's Note — Ord. no. 604 §3, adopted September
12, 2007, repealed ch. 510 "excavation" and enacted new provisions
set out herein. Former ch. 510 derived from CC 1974 §§515.010
— 515.040; ord. no. 150 §§1 — 4, 12-3-1970;
ord. no. 463 §1, 12-12-1994.
[Ord. No. 604 §3, 9-12-2007]
This Chapter shall be known and may be cited as the "Rights-Of-Way
Usage Code".
[Ord. No. 604 §3, 9-12-2007]
The following terms shall have the following meanings unless
otherwise defined by context:
The manager or administrator of the City or such other person designated by the City to hear appeals as provided in Section 510.060(B).
Any facilities located within the public rights-of-way and
owned by the City.
The City's Public Works Director or such other person designated
to administer and enforce this Chapter.
Includes, but is not limited to, ROW work made necessary
by exigent circumstances to repair, control, stabilize, rectify or
correct an unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility when such failure results or could result
in danger to the public or a material delay or hindrance to the provision
of service.
A network or system, or any part thereof, used for providing
or delivering a service and consisting of one (1) or more lines, pipes,
wires, cables, fibers, conduit facilities, cabinets, poles, vaults,
pedestals, boxes, appliances, antennas, transmitters, radios, towers,
gates, meters, appurtenances or other equipment.
An individual, partnership, limited liability corporation
or partnership, association, joint stock company, trust organization,
corporation or other entity or any lawful successor thereto or transferee
thereof.
Any person having ownership or control of facilities located
within the rights-of-way.
Unless otherwise restricts herein, 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, waterway, public easement or sidewalk in which the City now
or hereafter holds any interest which, consistent with the purposes
for which it was dedicated, may be used for the purpose of installing
and maintaining facilities. "Rights-of-way" shall not include:
City facilities or the City's property other than ROW, such
as City-owned or operated buildings, parks or other similar property,
Airwaves used for cellular, non-wire telecommunications or broadcast
services,
Easements obtained by ROW users on private property,
Railroad rights-of-way or ground used or acquired for railroads,
or
Facilities owned and used by the City for the transmission of
one (1) or more services. No reference herein to "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 the delivery of service.
A permit granted by the City to a ROW user for ROW work.
A person performing ROW work within the rights-of-way. A
ROW user shall not include ordinary vehicular or pedestrian use.
Action by a ROW user to:
Install, change, replace, relocate, remove, maintain or repair
facilities within the rights-of-way, or
To conduct work of any kind within or adjacent to the rights-of-way
that result in an excavation, obstruction, disruption, damage or physical
invasion or impact of any kind to rights-of-way or the use thereof.
The routine inspection of facilities shall not be considered ROW work
unless the inspection requires the conduct of any of the activities
or actions noted herein.
Providing or delivering an economic good or an article of
commerce, including, but not limited to, gas, telephone, cable television,
Internet, open video systems, video services, alarm systems, steam,
electricity, water, telegraph, data transmission, petroleum pipelines,
sanitary or stormwater sewerage or any similar or related service,
to one (1) or more persons located within or outside of the City by
use of facilities located within the rights-of-way.
In, along, under, over or across rights-of-way.
[Ord. No. 604 §3, 9-12-2007]
A.
Application Requirements.
1.
Any person desiring to perform ROW work must first apply for and
obtain a ROW permit in addition to any other building permit, license,
easement, franchise or authorization required by law. In the event
of a need for emergency ROW work, the person conducting the work shall
as soon as practicable notify the City of the location of the wok
and shall apply for the required ROW permit as soon as practicable
following the commencement of the work, not to exceed the third (3rd)
business day thereafter. The Director may design and issue general
permits for emergency ROW work for several different locations or
throughout the City.
2.
An application for a ROW permit shall be submitted to the Director.
The Director may design and make available standard forms for such
applications, requiring such information as allowed by law and as
the Director determines in his or her discretion to be necessary and
consistent with the provisions of this Chapter and to accomplish the
purposes of this Chapter. Each application shall at minimum contain
the following information for the proposed ROW work, unless otherwise
waived by the Director:
a.
The name, address and telephone number of a representative whom the
City may notify or contact at any time (i.e., twenty-four (24) hours
per day seven (7) days per week) concerning the work;
b.
If different from the applicant, the name, address and telephone
number of the person on whose behalf the proposed work is to be performed;
c.
A description of the proposed work, including a conceptual master
plan and an engineering site plan or other technical drawing or depiction
showing the nature, dimensions, location and description of the applicant's
proposed work or facilities, their proximity to other facilities that
may be affected by the proposed work and the number of street crossings
and their locations and dimensions, if applicable;
d.
Projected commencement and termination dates and anticipated duration
of the work or, if such dates are unknown, a representation that the
applicant shall provide the Director with reasonable advance notice
of such dates once they are determined;
e.
Copies of any required certificates of insurance or performance and
maintenance bonds.
3.
The information required by the application may be submitted in the
form maintained by the applicant, provided it is responsive to the
application's requirements and the applicant shall be allowed a reasonable
amount of time to complete the application based on the amount of
data or information requested or required.
4.
Each such application shall be accompanied by the following payments:
a.
An application fee approved by the City to cover the cost of processing
the application;
b.
Any other amounts due to the City from the applicant, including,
but not limited to, prior delinquent fees, costs and any loss, damage
or expense suffered by the City because of the applicant's prior work
in the rights-of-way or for any emergency actions taken by the City,
but the Director may modify this requirement to the extent the Director
determines any such fees to be in good faith dispute.
5.
Applicants shall participate in any joint planning, construction
and advance notification of such work, including coordination and
consolidation of any excavation of or disturbance to the rights-of-way,
as directed by the Director. When deemed necessary to accomplish the
goals of this Section and to the extent permitted by law, the City
reserves the right, when feasible and reasonable, to require the sharing
of facilities by ROW uses. Applicants shall cooperate with each other
and other ROW users and the City for the best, most efficient, least
intrusive, most aesthetic and least obtrusive use of the rights-of-way.
6.
The Director shall establish procedures allowing applicants to ascertain
whether existing capacity may be available from other persons utilizing
the rights-of-way along the intended path of any proposed work. The
Director shall also maintain indexes of all ROW permits issued, both
by the ROW user and by the affected rights-of-way.
B.
Application Review And Determination.
1.
The Director shall promptly review each completed application for
a ROW permit and shall grant or deny all such applications as provided
herein within thirty-one (31) days of receipt thereof. Unless the
application is denied, the Director shall issue a ROW permit upon
determining that the applicant:
a.
Has submitted all necessary information,
b.
Has paid the appropriate fees, and
c.
Is in full compliance with this Chapter and all other City ordinances.
The Director may establish procedures for bulk processing of applications
and periodic payment of fees to avoid excessive processing and accounting
costs.
2.
It is the intention of the City that interference with, damage to,
excavation or disruption of or the placement of facilities within
the City's rights-of-way should be minimized and limited in scope
to the extent allowed by law to achieve the purposes of this Chapter.
When reasonable and necessary to accomplish such purposes, the Director
may require as alternatives to the proposed ROW work either less disruptive
methods or different locations for facilities, provided that any required
alternative:
a.
Shall not increase expenses by more than ten percent (10%) of the
applicant's costs for the work as proposed,
b.
Shall not result in a decline of service quality, and
c.
Shall be competitively neutral and non-discriminatory.
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The Director shall justify to the applicant that the required
alternative is reasonable and necessary.
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3.
Upon receipt of an application, the Director shall determine whether
any portion of the rights-of-way will be affected by the proposed
work and whether the interference, disruption or placement of facilities
will be more than minor in nature. In determining whether the proposed
work is more than minor in nature, the Director shall consider the
nature and scope of the work, its location and duration and its effect
on the rights-of-way, the use thereof and neighboring properties.
a.
If the applicant can show to the Director's reasonable satisfaction
that the work involves no interference, disruption, excavation or
damage to or only minor interference with the rights-of-way or that
the work does not involve the placement of facilities or involves
time-sensitive maintenance, then the Director shall promptly grant
the ROW permit.
b.
If the Director determines that the effect on the rights-of-way will
be more than minor in nature and no exemption under the above paragraph
(3)(a) or any other provision of this Chapter applies, the Director
shall schedule and coordinate the work and grant the ROW permit accordingly.
When reasonable and necessary to accomplish the purposes of this Chapter,
the Director may postpone issuance of a ROW permit and may give public
notice of the application in an attempt to identify whether other
person(s) intend to do work in the same area within a reasonable period
of time, so that all ROW work in the area can be coordinated. Due
regard shall be accorded applicants that are required by any law,
rule, regulation, license or franchise to provide service to the area
defined in the application. The Director shall not impose any coordination
or scheduling requirements that prevent or unreasonably delay an applicant's
access to the ROW or that create a barrier to entry.
4.
Each ROW permit issued by the Director shall include:
a.
Projected commencement and termination dates or, if such dates are
unknown at the time the permit is issued, a provision requiring the
ROW user to provide the Director with reasonable advance notice of
such dates once they are determined;
b.
Length of affected rights-of-way, number of road crossings and identification
and description of any pavement or curb cuts included in the work;
c.
Information regarding scheduling and coordination of work, if necessary;
d.
The location of any of the applicant's facilities, both those proposed
and existing, and the location of any known facilities owned by other
person that may be affected by the proposed work;
e.
An acknowledgment and representation by the applicant to comply with
the terms and conditions of the ROW permit and this Chapter; and
f.
Such conditions and requirements as are deemed reasonably necessary
by the Director to protect structures and other facilities in the
rights-of-way from damage, to restore such rights-of-way and any structures
or facilities, to ensure the reasonable continuity and sight lines
of pedestrian and vehicular traffic and to protect property values,
the aesthetics of adjoining properties and neighborhoods and the public
health, safety and welfare.
5.
The Director may deny an application, if denial is deemed to be in
the public interest, for the following reasons:
a.
Delinquent fees, costs or expenses owed by the applicant;
b.
Failure to provide information required by the application or this
Chapter;
c.
The applicant being in violation of the provisions of this Chapter
or other pertinent and applicable City ordinances;
d.
Failure to return the ROW to its previous condition under previously
issued ROW permits or after prior excavations by the applicant;
e.
For reasons of environmental, historic or cultural sensitivity as
defined by applicable Federal, State or local law;
f.
For the applicant's refusal to comply with alternative ROW work methods,
locations or other reasonable conditions required by the Director;
and
g.
For any other reason to protect the public health, safety and welfare,
provided that such denial does not fall within the exclusive authority
of the Missouri Public Service Commission or interfere with a ROW
user's right of eminent domain of private property and, provided further,
that such denial is imposed on a competitively neutral and non-discriminatory
basis.
C.
Permit Revocation And Ordinance Violations.
1.
The Director may revoke a ROW permit without fee refund after notice
and an opportunity to cure, but only in the event of a substantial
breach of the terms and conditions of the permit or this Chapter.
Prior to revocation the Director shall provide written notice to the
ROW user identifying any substantial breach and allowing a reasonable
period of time not longer than thirty (30) days to cure the problem,
which cure period may be immediate if certain activities must be stopped
to protect the public safety. The cure period shall be extended by
the Director on good cause shown by the ROW user. A substantial breach
includes, but is not limited to, the following:
a.
A material violation of a provision of the ROW permit or this Chapter;
b.
An evasion or attempt to evade any material provision of the ROW
permit or this Chapter or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its residents;
c.
A material misrepresentation of fact in the ROW permit application;
d.
A failure to complete ROW work by the date specified in the ROW permit,
unless an extension is obtained or unless the failure to complete
the work is due to reasons beyond the ROW user's control; and
e.
A failure to correct, upon reasonable notice and opportunity to cure
as specified by the Director, work that does not conform to applicable
national safety ordinances, industry construction standards, this
Chapter or any other applicable ordinances, provided that City standards
are no more stringent than those of a national safety ordinance.
2.
Any breach of the terms and conditions of a ROW permit shall also
be deemed a violation of this Chapter and in lieu of revocation the
Director may initiate prosecution of the ROW user for such violation.
[Ord. No. 604 §3, 9-12-2007]
A.
Jurisdiction, Inspection And Stop Work Orders.
1.
All facilities and ROW work shall be subject to inspection by the
City and the supervision of all Federal, State and local authorities
having jurisdiction in such matters to ensure compliance with all
applicable laws, ordinances, departmental rules and regulations and
the ROW permit.
2.
The Director shall have full access to all portions of the ROW work and may issue stop work orders and corrective orders to prevent unauthorized work or substandard work as established in Subsection (G) hereof. Such orders:
a.
May be delivered personally or be certified mail to the address(es)
listed on the application for the ROW permit or the person in charge
of the construction site at the time of delivery;
b.
Shall state that substandard work or work not authorized by the ROW
permit is being carried out, summarize the substandard or 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 stopped to protect the public safety; and
c.
May be enforced by equitable action in the Circuit Court of St. Louis
County, Missouri, and in such case the person responsible for the
substandard or unauthorized work shall be liable for all costs and
expenses incurred by the City in enforcing such orders, including
reasonable attorney's fees, in addition to any and all penalties established
in this Chapter.
B.
Underground Facilities.
1.
In conjunction with the City's long-standing policy favoring underground
construction, no person may erect, construct or install new poles
or other facilities above the surface of the rights-of-way without
the written permission of the City, unless the City's authority has
been pre-empted by State or Federal law. Such permission may be granted
through a ROW permit when other similar facilities exist above ground
or when conditions are such that underground construction is impossible,
impractical or economically feasible as determined by the City and
when in the City's judgment the above ground construction has minimal
aesthetic impact on the area where the construction is proposed.
2.
During installation of facilities and to the extent authorized by
law, existing underground conduits shall be used whenever feasible
and permitted by the owner thereof.
3.
In the case of new construction or property development, the developer
or property owner shall give reasonable written notice, to other potential
ROW users as directed by the City, of the particular date on which
open trenching will be available for installation of facilities. Costs
of trenching and easements required to bring facilities within the
development shall be borne by the developer or property owner; except
that if the facilities are not installed within five (5) working days
of the date the trenches are available as designated in the notice
given by the developer or property owner, then once the trenches are
thereafter closed, the cost of new trenching shall be borne by the
person installing the facilities.
C.
Above Ground Facilities.
1.
The Director may designate certain locations or facilities in the
ROW to be excluded from use by the applicant for its facilities including,
but not limited to:
a.
Ornamental or similar specially designed street lights,
b.
Designated historic areas,
c.
Facilities, equipment, structures or locations that do not have electrical
service adequate or appropriate for the proposed facilities or cannot
safely bear the weight or wind loading thereof,
d.
Facilities, equipment, structures or locations that in the reasonable
judgment of the Director are incompatible with the proposed facilities
or would be rendered unsafe or unstable by the installation, and
e.
Facilities, equipment, structures or locations that have been designated
or planned for other use or are not otherwise available for use by
the applicant due to engineering, technological, proprietary, legal
or other limitations or restrictions.
2.
Above ground facilities shall be a neutral color and shall not be
bright, reflective or metallic. Black, gray and tan shall be considered
neutral colors, as shall any color that blends with the surrounding
dominant color and helps to camouflage the facilities. Facilities
shall be located in such a manner as to reduce or eliminate their
visibility. A sight-proof landscape screen may be required for any
authorized above ground facilities taller than three (3) feet in height
or covering in excess of four (4) square feet in size. Such screening
shall be sufficient to reasonably conceal the facility. A landscape
plan identifying the size and species of landscaping materials shall
be approved by the Director prior to installation of any facility
requiring landscape screening. The person having facilities within
the ROW shall be responsible for the installation, repair or replacement
of screening materials. Alternative screening or concealment may be
approved by the Director to the extent it meets or exceeds the purposes
of these requirements.
3.
Above ground facilities shall be constructed and maintained in such
a manner so as not to permit any unnecessary or intrusive noise and
shall comply with all other applicable regulations and standards established
by the City or State or Federal law.
4.
If the application of this Subsection excludes locations for above ground facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director shall cooperate in good faith with the applicant to attempt to find suitable alternatives, but such alternatives may exceed the cost increase limitation established by Section 510.030(B)(2) and the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
D.
Relocation Of Equipment And Facilities.
1.
In the event of an emergency or where construction equipment or facilities
create or are contributing to an imminent danger to health, safety
or property, the City may, to the extent allowed by law, remove, re-lay
or relocate such construction equipment or the pertinent parts of
such facilities without charge to the City for such action or for
restoration or repair. The City shall attempt to notify the person
having facilities within the ROW prior to taking such action, but
the inability to do so shall not prevent same. Thereafter, the City
shall notify the person having facilities within the ROW as soon as
practicable.
2.
At the City's direction, all facilities shall be moved underground
and the cost shall be solely the obligation of the person having facilities
within the ROW (or as otherwise allowed or required by law).
3.
At the City's direction, a person having facilities within the ROW
shall protect, support, disconnect, relocate or remove facilities,
at its own cost and expense, when necessary to accommodate the construction,
improvement, expansion, relocation or maintenance of streets or other
public works or to protect the ROW or the public health, safety or
welfare.
4.
A person having facilities within the ROW shall, on the reasonable
request of any person and after reasonable advance written notice,
protect, support, disconnect, relocate or remove facilities to accommodate
such person and the actual cost, reasonably incurred, of such actions
shall be paid by the person requesting such action. The person having
facilities within the ROW taking such action may require such payment
in advance.
5.
Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (F) of this Section.
6.
No action hereunder shall be deemed a taking of property and no person
shall be entitled to any compensation therefor. No location of any
facilities within the rights-of-way shall be a vested interest.
E.
Property Repair And Alterations.
1.
During any ROW work, the person doing the work shall protect from
damage any and all existing structures and property belonging to the
City and any other person. Any and all rights-of-way, public property
or private property disturbed or damaged during the work shall be
repaired or replaced by the person doing the work or the person on
whose behalf the work is being done and such person shall immediately
notify the owner of the fact of any damaged property. Such repair
or replacement shall be completed within a reasonable time specified
by the Director and to the Director's satisfaction.
2.
Any alteration to the existing water mains, sewerage or drainage
system or to any City, State or other public structures or facilities
in the rights-of-way required on account of the construction, installation,
repair or maintenance of facilities within the rights-of-way shall
be made at the sole cost and expense of the owner of such facilities.
F.
Removal, Abandonment, Transfer And Relocation Of Facilities.
1.
If a person having facilities within the ROW:
a.
Installs the facilities within the ROW without having complied with
the requirements of this Chapter, or
b.
Abandons the facilities, the City may require the removal of the
facilities, remove the facilities at the expense of the person having
facilities within the ROW or require the transfer of the facilities
as provided herein.
2.
If the City requires removal of the facilities, the person shall
obtain a ROW permit and shall abide by all requirements of this Chapter.
The liability, indemnity, insurance and bonding requirements required
herein shall continue in full force and effect during and after the
period of removal and restoration and until full compliance by the
person with the terms and conditions of the ROW permit and the requirements
of this Chapter.
3.
If the person fails to remove the facilities after having been directed
to do so, the City may, to the extent permitted by law, have the removal
done at the person's expense. Alternatively, the City may permit the
abandonment, without removal, of the facilities if the Director determines
that abandonment is not likely to prevent or significantly impair
the future use, repair, excavation, maintenance or construction of
the ROW.
4.
If the person fails to remove the facilities after having been directed
to do so, the City may, to the extent permitted by law, decide that
the ownership of the facilities should be transferred to the City
or to such person as directed by the City. In either case the owner
of the facilities shall submit a written instrument, satisfactory
in form to City, transferring to the City, or to such person as directed
by the City, ownership of the facilities. The City may sell, assign
or transfer all or part of the facilities so transferred.
5.
The City shall not remove or seek to possess or transfer the facilities
until thirty (30) days have passed following written notice by the
Director to the person having facilities within the ROW of the City's
intent to so act. The Director may choose not to act on good cause
shown by the person having facilities within the ROW.
G.
Standards For ROW Work.
1.
Except for emergency ROW work as provided in Section 510.030(A)(1), ROW work shall be performed only upon issuance and in accordance with the requirements of a ROW permit. At all times during the work, ROW permits shall be conspicuously displayed at the work site and shall be available for inspection by the Director.
2.
If at any time it appears that the duration or scope of the ROW work
is or will become materially different from that allowed by the ROW
permit, the ROW user shall inform the Director. The Director may issue
a waiver, an extension or a revised ROW permit or require that the
ROW user reapply for a ROW permit in accordance with all requirements
of this Chapter.
3.
ROW users shall not open or encumber more of the rights-of-way than
is reasonably necessary to complete the ROW work in the most expeditious
manner or allow excavations to remain open longer than is necessary
to complete the work.
4.
All ROW work that affects vehicular or pedestrian traffic shall be
properly signed, barricaded and otherwise protected at the ROW user's
expense. The ROW user shall be responsible for providing adequate
traffic control to the area surrounding the work as determined by
the Director.
5.
The ROW user shall perform the ROW work at such times that will allow
the least interference with the normal flow of traffic and the peace
and quiet of the neighborhood as permitted by the Director. Unless
otherwise provided by the Director in the permit, non-emergency ROW
work on arterial and collector streets may not be accomplished during
the hours of 7:00 A.M. to 8:30 A.M. and 4:00 P.M. to 6:00 P.M. in
order to minimize disruption of traffic flow.
6.
The ROW user shall notify the City no less than three (3) working
days in advance of any ROW work that would require any street closure
or would reduce traffic flow to less than two (2) lanes of moving
traffic for more than four (4) hours. Except in the event of emergency
ROW work, no such closure shall take place without notice and prior
authorization from the City.
7.
All ROW work shall be in accordance with all applicable Sections
of the Occupational Safety and Health Act of 1970, the National Electrical
Safety Code and other Federal, State or local laws and regulations
that may apply, including, without limitation, local health, safety,
construction and zoning ordinances and laws and accepted industry
practices, all as hereafter may be amended or adopted. In the event
of a conflict among ordinances and standards, the most stringent ordinance
or standard shall apply (except insofar as that ordinance or standard,
if followed, would result in facilities that could not meet requirements
of Federal, State or local law).
8.
All facilities shall be installed and located to cause minimum interference
with the rights and convenience of property owners, other ROW users
and the City. Facilities shall not be placed where they will disrupt
or interfere with other facilities or public improvements or obstruct
or hinder in any manner the various utilities serving the residents
and businesses in the City or public improvements.
a.
All facilities shall be of good and durable quality.
b.
All ROW work shall be conducted in accordance with good engineering
practices, performed by experienced and properly trained personnel
so as not to endanger any person or property or to unreasonably interfere
in any manner with the rights-of-ways or legal rights of any property
owner, including the City, or unnecessarily hinder or obstruct pedestrian
or vehicular traffic.
9.
All safety practices required by law shall be used during ROW work,
including commonly accepted methods and devices to prevent failures
and accidents that are likely to cause damage, injury or nuisance
to the public.
10.
Any contractor or subcontractor of a ROW user must be properly licensed
under laws of the State and all applicable local ordinances and the
contractor or subcontractor shall have the same obligations with respect
to its work as a ROW user would have pursuant to this Chapter. A ROW
user:
a.
Must ensure that contractors, subcontractors and all employees performing
ROW work are trained and experienced,
b.
Shall be responsible for ensuring that all work is performed consistent
with the ROW permit and applicable law,
c.
Shall be fully responsible for all acts or omissions of contractors
or subcontractors,
d.
Shall be responsible for promptly correcting acts or omissions by
any contractor or subcontractor, and
e.
Shall implement a quality control program to ensure that the work
is properly performed.
11.
A ROW user shall not place or cause to be placed any sort of signs,
advertisements or other extraneous markings on the facilities or in
the ROW, whether relating to the ROW user or any other person, except
such necessary minimal markings approved by the City as 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.
12.
Unless otherwise approved in writing by the City, a ROW user shall
not remove, cut or damage any trees or their roots within the ROW.
13.
Street crossings will be bored at the direction of the Director.
H.
Restoring And Maintaining The Rights-Of-Way.
1.
To complete any ROW work, the ROW user shall restore the ROW and
surrounding areas, including, but not limited to, any pavement, foundation,
concrete slabs or curbs, screening, landscaping or vegetation, and
shall comply with other reasonable conditions of the Director. Restoration
of the ROW shall be completed within the dates specified in the ROW
permit unless the Director issues a waiver, extension or a new or
revised ROW permit.
2.
It shall be the duty of any person making an excavation in the ROW
to backfill such excavations and restore the surface in accordance
with the City's minimum prescribed standards for such surfaces or
the following standards as determined by the Director.
a.
If the excavations are made in the improved portion of the ROW, twelve
(12) inches of granular backfill will be placed over exposed facilities
and controlled low strength material (CLSM) will fill the hole within
eight (8) inches of the finished surface for concrete pavements. There
will be a plastic membrane placed between the rock base and the CLSM
to prevent the material from bleeding into the rock base. The remaining
eight (8) inches will be restored by placing a twenty-eight (28) day
minimum strength, four thousand five hundred (4,500) psi concrete
mix.
b.
If the excavations are made in the improved portion of an asphalt
or combination street, twelve (12) inches of granular backfill will
be placed over exposed facilities and CLSM will fill the hole within
nine (9) inches of the finished surface. There will be a plastic membrane
placed between the rock base and the CLSM to prevent the material
from bleeding into the rock base. The remaining nine (9) inches will
be restored by placing a six (6) inch thick, twenty-eight (28) day
minimum strength, four thousand five hundred (4,500) psi concrete
mix under a three (3) inch asphalt concrete lift of type C mix to
meet existing grades.
c.
Construction of asphalt driveway entrances in residential ROW will
be constructed of six (6) inches of compacted rock base and three
(3) inches of type C asphalt concrete mix. Construction of asphalt
driveway entrances in commercial ROW will be constructed of four (4)
inches of compacted rock base, seven and one-half (7.5) inches of
type X and three (3) inches of type C asphalt concrete mix. Concrete
driveway approaches will consist of a four (4) inch compacted rock
base and be a minimum of six (6) inches thick in residential ROW and
eight (8) inches thick in commercial ROW.
3.
If a ROW user fails to restore the ROW within the date specified
either by the ROW permit or any extension thereof as granted by the
Director, the City may perform its own restoration. The City may also
opt to perform its own restoration regardless of any failure by the
ROW user, in which case the ROW permit or any amendment or revision
thereto shall note such option. In either event, if the City performs
the restoration, the ROW user shall be responsible for reimbursing
the City's reasonable actual restoration costs within thirty (30)
days of invoice.
4.
Every ROW user to whom a ROW permit has been granted shall guarantee
for a period of four (4) years the restoration of the ROW in the area
where the ROW user conducted excavation. During this period the ROW
user shall, upon notification from the Director, correct all restoration
work to the extent necessary as required by the Director. Said work
shall be completed within a reasonable time, not to exceed thirty
(30) calendar days from receipt of the Director's notice unless otherwise
permitted by the Director. If a ROW user fails to restore the ROW
within the time specified, the City may perform the work and the ROW
user shall be responsible for reimbursing the City's reasonable actual
restoration costs within thirty (30) days of invoice. The Director
may extend the cure period on good cause shown.
5.
A ROW user shall not be relieved of the obligation to complete the
necessary right-of-way restoration and maintenance because of the
existence of any performance bond required by this Chapter.
I.
Any
person performing ROW work shall provide written notice to all property
owners within one hundred eighty-five (185) feet of the site at least
forty-eight (48) hours prior to any installation, replacement or expansion
of its facilities. Notice shall include a reasonably detailed description
of work to be done, the location of work and the time and duration
of the work.
[Ord. No. 604 §3, 9-12-2007]
A.
Performance And Maintenance Bonds.
1.
Prior to any ROW work a ROW user shall establish in the City's favor
a performance and maintenance bond in an amount to be determined by
the Director to ensure the restoration of the rights-of-way. The bond
shall continue in full force and effect for a period of twenty-four
(24) months following completion of the work. The Director shall have
the authority to extend the maintenance bond period for up to an additional
twenty-four (24) months. The Director may waive this requirement when
the work involves no or only minor disruption or damage to the rights-of-way.
The Director shall waive this requirement when the ROW user has twenty-five
million dollars ($25,000,000.00) in net assets and does not have a
history of non-compliance with State and local regulations.
2.
If a ROW user fails to complete the ROW work in a safe, timely and
competent manner or if the completed restorative work fails without
remediation within the time period for the bond (as determined by
the Director), then after notice and a reasonable opportunity to cure,
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, including the full amount of any compensation, indemnification
or cost of removal or abandonment of any property of the ROW user
and the cost of completing work within or restoring the rights-of-way,
plus a reasonable allowance for attorneys' fees, up to the full amount
of the bond. The City may also recover against the bond any amount
recoverable against a security fund or letter of credit where such
amount exceeds that available under a security fund or letter of credit.
3.
Upon completion of ROW work to the satisfaction of the Director and
upon lapse of the bond period, including any extension by the Director,
the City shall release the bond.
4.
The bond shall be issued by a surety with "A" or better rating of
insurance in Best's Key Rating Guide, Property/Casualty Edition, shall
be subject to the approval of the City's attorney and shall contain
the following endorsement:
"This bond may not be cancelled 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.
In lieu of the bond required herein, the ROW user may establish in
the City's favor such other security as the Director may determine
to be commensurate with the noted bonding requirements including,
but not limited to, an annual bond to be maintained in the minimum
amount of twenty-five thousand dollars ($25,000.00).
B.
Insurance.
1.
All ROW users shall maintain, for the duration of any ROW work and,
when applicable, for as long as the ROW user has facilities within
the rights-of-way, at least the following liability insurance coverage:
Workers' Compensation and employer liability insurance to meet all
requirements of Missouri law and commercial general liability insurance
with respect to the construction, operation and maintenance of the
facilities and the conduct of the ROW user's business in the City
in the minimum amounts of:
a.
Two millions dollars ($2,000,000.00) for property damage resulting
from any one (1) accident;
b.
Five million dollars ($5,000,000.00) for personal bodily injury or
death resulting from any one (1) accident; and
c.
Two million dollars ($2,000,000.00) for all other types of liability.
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These insurance requirements shall not be construed to limit
the ability of any person or to impose any liability on the City or
to waive any sovereign immunity.
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2.
All insurance policies shall be with sureties qualified to do business
in the State of Missouri with an "A" or better rating of insurance
by Best's Key Rating Guide, Property/Casualty Edition and in a form
approved by the City.
3.
All insurance policies shall be available for review by the City,
and a ROW user having facilities within the rights-of-way shall keep
on file with the City current certificates of insurance.
4.
All general liability insurance policies shall name the City, its
officers, boards, board members, commissions, commissioners, agents
and employees as additional insureds and shall further provide that
any cancellation or reduction in coverage shall not be effective unless
thirty (30) days' prior written notice thereof has been given to the
Director. A ROW user shall not cancel any required insurance policy
without submission of proof that it has obtained alternative insurance
that complies with this Chapter.
5.
The Director may exempt in writing from these insurance requirements
any self-insured ROW user, provided that the ROW user demonstrates
to the Director's satisfaction that the ROW user's self-insurance
plan is commensurate with said requirements and that the ROW user
has sufficient resources to meet all potential risks, liabilities
and obligations contemplated by the requirements of this Chapter.
The Director may require a security fund or letter of credit as a
condition to a self-insured' s exemption. The Director shall waive
this requirement when the ROW user has twenty-five million dollars
($25,000,000.00) in net assets and does not have a history of non-compliance
with applicable regulatory law.
C.
Indemnification.
1.
Any ROW user granted a ROW permit and any person having facilities
within the rights-of-way, as partial consideration for the privilege
granted, 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, proceedings and judgments for damages or equitable
relief arising out of:
a.
Any ROW work including, but not limited to, the construction, maintenance,
repair or replacement of the facilities,
b.
The operation of its facilities,
c.
Failure to secure consents from landowners, or
d.
Any actions taken or omissions made by the person pursuant to the
authority of this Chapter.
2.
The foregoing indemnity provisions include, but are not limited to,
the City's reasonable attorneys' fees incurred in defending against
any such claim, suit or proceeding prior to the person assuming such
defense. The City shall notify a person of claims and suits within
seven (7) business days of its actual knowledge of the existence of
such claim, suit or proceeding. Once a person assumes such defense,
the City may at its option continue to participate in the defense
at its own expense.
3.
Notwithstanding anything to the contrary contained in this Chapter,
the City shall not be so indemnified or reimbursed in relation to
any amounts attributable to:
4.
Recovery by the City of any amounts under insurance, a performance
bond or otherwise does not limit a person's duty to indemnify the
City in any way; nor shall such recovery relieve a person of amounts
owed to the City or in any respect prevent the City from exercising
any other right or remedy it may have.
D.
Penalties. Any person violating any provision of this Chapter
shall, upon conviction by the City's Municipal Court, be punished
by a fine not to exceed one thousand dollars ($1,000.00) or by imprisonment
not to exceed ninety (90) days, or by both such fine and imprisonment.
Each day the violation continues may be charged as a separate offense.
[Ord. No. 604 §3, 9-12-2007]
A.
The
Director shall make a final determination as to any matter concerning
the grant, denial or revocation of a ROW permit as provided in this
Chapter. On the request of an applicant or a ROW user and within a
reasonable period of time, the Director also shall make a final determination
as to any other issue relating to the use of the ROW, the imposition
of any fee or the application of any provision of this Chapter, provided
however, that this review shall not apply to matters being prosecuted
in the Municipal Court. Any final determination of the Director shall
be subject to review as provided herein.
B.
Any
person aggrieved by a final determination of the Director may appeal
in writing to the Administrator within five (5) business days thereof.
The appeal shall assert specific grounds for review and the Administrator
shall render a decision on the appeal within fifteen (15) business
days of receipt affirming, reversing or modifying the determination
of the Director. The Administrator may extend this time period for
the purpose of any investigation or hearing deemed necessary. A decision
affirming the Director's determination shall be in writing and supported
by findings establishing the reasonableness of the decision.
C.
Any
person aggrieved by the final determination of the Administrator may
file a petition for review pursuant to Chapter 536, RSMo., as amended,
in the Circuit Court of the County of St. Louis. Such petition shall
be filed within thirty (30) days after the Administrator's final determination.
D.
Arbitration And Mediation.
1.
On agreement of the parties and in addition to any other remedies,
any final decision of the Administrator may be submitted to mediation
or binding arbitration.
2.
In the event of mediation, the Administrator and the applicant or
ROW user shall agree to a mediator. The costs and fees of the mediator
shall be borne equally by the parties and each party shall pay its
own costs, disbursements and attorney fees.
3.
In the event of arbitration, the Administrator and the applicant
or ROW user shall agree to a single arbitrator. The costs and fees
of the arbitrator shall be borne equally by the parties. If the parties
cannot agree on an arbitrator, the matter shall be resolved by a three
(3) person arbitration panel consisting of one (1) arbitrator selected
by the Administrator, one (1) arbitrator selected by the applicant
or ROW user and one (1) person selected by the other two (2) arbitrators,
in which case each party shall bear the expense of its own arbitrator
and shall jointly and equally bear with the other party the expense
of the third (3rd) arbitrator and of the arbitration. Each party shall
also pay its own costs, disbursements and attorney fees.
[Ord. No. 604 §3, 9-12-2007]
A.
After
the completion of ROW work the ROW user shall provide to the City
as-built drawings, maps or other comparable records as determined
by the Director, drawn to scale and certified to the City as reasonably
depicting the location of all facilities constructed pursuant to the
ROW permit. Such records may be provided to the Director in the form
maintained by the ROW user, but when available to the ROW user, shall
be submitted in automated formats that are compatible with City systems
as determined by the Director or in hard copy otherwise.
B.
Upon
failure of a ROW user to commence, pursue or complete any ROW work
required by law or by the provisions of this Chapter to be done in
any street within the time prescribed and to the reasonable satisfaction
of the City, the City may, at its option, after thirty (30) days'
notice, cause such work to be done and the ROW user shall pay to the
City the cost thereof in the itemized amounts reported by the City
to the ROW user within thirty (30) days after receipt of such itemized
report.
C.
Upon
ten (10) days' written notice and with the supervision of the City
or as otherwise provided by law, a ROW user shall have the authority
to trim trees that overhang rights-of-way of the City so as to prevent
the branches of such trees from coming in contact with its facilities,
at its own expense subject to the supervision and direction of the
City. Nothing in this paragraph shall authorize the trimming of trees
on private property without permission of the property owner. All
cut materials shall be properly disposed.
D.
During
ROW work by a ROW user the City shall have the right to install and
to thereafter maintain, at its own cost in any excavation to or other
applicable disturbance of the ROW, any parallel facilities of its
own that do not unreasonably interfere with the operations of other
facilities.
E.
Nothing
in this Chapter shall be in preference or hindrance to the right of
the City and any board, authority, commission or public service corporation
of the City to use or occupy the rights-of-way or to perform or carry
on any public works or public improvements of any description.
