[Ord. No. 3746, § 4, 9-10-2002; Ord. No. 4814, § 1, 11-28-2017]
To the extent permitted by law, this article shall apply to
all persons desiring to construct, operate, excavate, or maintain
facilities in, along, across, under or over public rights-of-way within
the City of Crestwood, Missouri. No person shall commence or continue
with the operation of any facilities or structures in the rights-of-way
except as provided and in compliance with this chapter. Because numerous
types of users and uses of the rights-of-way may be subject to various
or changing regulatory schemes under federal or state law, any such
limitation or qualification that may be applicable to less than all
users and uses of the rights-of-way are not duplicated herein, but
are nevertheless incorporated herein, whenever application is so required
by law, including but not limited to applicable provisions of RSMo.
Ch. 67, and other applicable state and federal law.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
To recognize the City's primary role as chief steward of the right-of-way
and its duty to its citizens to recover the costs of managing the
right-of-way and incursions into it;
(b)
To clarify and regulate conditions of occupancy and construction
for those ROW-users occupying space within the City's right-of-way
given the anticipated increased use of the right-of-way by various
ROW-users throughout the country;
(c)
To recognize the necessity of sound management practices in light
of increased use of the right-of-way and the fact that the right-of-way
is a limited resource;
(d)
To treat each ROW-user equitably and in a competitively neutral manner
with considerations that may be unique to the technologies and situation
of each particular ROW-use;
(e)
To minimize disruption, visual impact or inconvenience to the public,
and to preserve the public health, safety and welfare; and
(f)
To comply with applicable state and federal legislation.
[Ord. No. 3746, § 4, 9-10-2002; Ord. No. 4814, § 2, 11-28-2017]
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 Municipal Code,
and, if not defined therein, their common and ordinary meaning. For
further convenience, the first letter of terms, phrases, words and
abbreviations defined in this article have been capitalized, but an
inadvertent failure to capitalize such letter shall not affect its
meaning, nor shall the inadvertent capitalization of the first letter
of a term, phrase, word or abbreviation not defined herein affect
the meaning thereof.
Those facilities owned by the ROW-user that are not in use
and will not be utilized by the owner in the future.
The fee charged by the City to recover its cost incurred
for right-of-way management; including, but not limited to, costs
associated with registering applicants; issuing, processing, and verifying
right-of-way permit applications; inspecting job sites and restoration
of improvements; determining the adequacy of right-of-way restoration;
revoking right-of-way permits and, other costs the City may incur
in managing the provisions of this article.
Any person controlling, controlled by or under the common
control of a "service provider."
Communications equipment that transmits or receives electromagnetic
radio signals used in the provision of any type of wireless communications
services.
Any person requesting permission to occupy, lease or operate
facilities using the right-of-way, or to excavate the right-of-way.
That area within one foot around a street excavation where
the pavement and sub-grade is impacted by the excavation and is subject
to more rapid deterioration.
The City of Crestwood, Missouri, a municipal corporation
and any duly authorized representative thereof.
And includes construct, install, erect, build, affix or otherwise
place any fixed structure or object, in, on, under, through or above
the right-of-way.
Calendar day unless otherwise specified.
The rate at which the useful service life of a public street
deteriorates over time.
A condition that:
And includes any cutting, digging, excavating, tunneling,
boring, grading or other alteration of the surface or subsurface material
or earth in the right-of-way.
A service provider owning or possessing facilities in the
right-of-way.
Lines, pipes, irrigation systems, wires, cables, conduit
facilities, poles, towers, vaults, pedestals, boxes, appliances, antennas,
transmitters, gates, meters, appurtenances, or other equipment.
Federal Communications Commission.
The Mayor and the Board of Aldermen of the City of Crestwood,
Missouri.
Any county, township, City, town, village, school district,
library district, road district, drainage or levee district, sewer
district, water district, fire district or other municipal corporation,
quasi-municipal corporation or political subdivision of the State
of Missouri or of any other state of the United States and any agency
or instrumentality of the State of Missouri or of any other state
of the United States or of the United States.
The area between a property line and the street curb, sometimes
called boulevard, tree-shelf or snow-shelf.
And includes Portland cement concrete pavement, asphalt concrete
pavement, asphalt treated road surfaces and any aggregate base material.
Any person to whom a right-of-way permit is issued to excavate
a right-of-way.
Any natural or corporate person, business association or
business entity including, but not limited to, a partnership, a sole
proprietorship, a political subdivision, a public or private agency
of any kind, a utility, a successor or assign of any of the foregoing,
or any other legal entity.
Any project undertaken by the City for construction, reconstruction,
maintenance, or repair of any public infrastructure, and including
without limitation, streets, alleys, bridges, bikeways, parkways,
sidewalks, sewers, drainage facilities, traffic control devices, street
lights, public facilities, public buildings or public lands; provided
that projects undertaken by the City for the construction, reconstruction,
maintenance, or repair of any public infrastructure funded by or substantially
by user fees imposed upon those using the public infrastructure shall
not be deemed "public improvements" and shall not be exempt from the
permit requirements of this article.
Any real property of the City that is not right-of-way.
The Public Works Director for Crestwood, Missouri or any
authorized representative.
The permit application process of a service provider, the
approval of the application by the City, and the authorization of
the service provider to use any portion of the right-of-way within
the City to provide service both within and beyond the City limits.
The temporary construction work necessary to make the right-of-way
usable.
A service provider providing service within the City that
does not have its own facilities in the right-of-way, but instead
uses the right-of-way by interconnecting with or using the network
elements of another service provider utilizing the right-of-way, and/or
by leasing excess capacity from a facility-based service provider.
The process by which an excavated right-of-way and surrounding
area, including pavement and foundation, is returned to the same condition
that existed before the commencement of the work.
The area on, below or above the present and future City streets,
alleys, bridges, bikeways, parkways and sidewalks.
The authorization to excavate for the construction, installation,
repair, restoration or maintenance of any type of facility within
the right-of-way.
A work activity that makes no material change to the facilities
and does not disrupt traffic.
A person, its successors and assigns, that uses the right-of-way
for purposes of work, excavation, provision of services, or to install,
construct, maintain, or repair facilities thereon, including, but
not limited to, landowners and service providers. A ROW-user shall
not include ordinary vehicular or pedestrian traffic or any governmental
entity that has entered into an inter-local agreement with the City
regarding the use and occupancy of the City's right-of-way (unless
that governmental entity is acting as a service provider in a proprietary
capacity), or a reseller service provider that does not own or control
its own facilities in the right-of-way.
A commodity provided to a person by means of a delivery system
that is comprised of facilities located or to be located in the right-of-way,
including, but not limited to, gas, telephone, cable television, internet
services, alarm systems, electric, water, telegraph, data transmission,
or sanitary sewerage.
Any person that is a provider of a service for or without
a fee that has the requisite certifications and authorizations from
applicable governmental entities, including the FCC, to provide such
service. Service provider includes both facility-based service providers
and reseller service providers.
The pavement and sub-grade of a City residential, collector
or arterial roadway.
[Ord. No. 3746, § 4, 9-10-2002; Ord. No. 4814, § 3, 11-28-2017]
(a)
It is the policy of the City to authorize any service provider to
utilize the right-of-way in a competitively neutral, non-discriminatory
manner that maximizes the efficient use of and conserves the right-of-way
and minimizes the burden on the right-of-way, physically and aesthetically.
Any use of the right-of-way by a ROW-user shall be subject to the
terms and conditions hereof, in addition to other applicable federal,
state or local requirements.
(b)
The rights granted to use the right-of-way shall be for the sole
use of the ROW-user and are limited to the use as set forth by the
ROW-user in its permit application and related documents filed with
the City in accordance with this article. Except as otherwise expressly
permitted by state or federal law, no other person may use the ROW-user's
right, unless authorized by the City.
(c)
This article also is designed to regulate occupancy and excavations
in the right-of-way by providing, among other things, for the issuance
of permits to construct, reconstruct, restore, repair and maintain
facilities within the right-of-way in the City.
(d)
All ROW-users shall be subject to all rules, regulations, policies,
resolutions, and ordinances, including zoning and building code requirements,
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 right-of-way.
(e)
For applications for installation of any facility in the rights-of-way:
(1) the most restrictive adjacent underlying zoning district classification
shall apply unless otherwise specifically zoned and designated on
the official zoning map; and (2) no application to construct or erect
a wireless facility or wireless support structure shall be submitted
for approval without attaching the City's consent to use the rights-of-way
for the specific construction application in accordance with RSMo.
Ch. 67.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
The Public Works Director is the principal City official authorized
to administer right-of-way permits for work and excavations made in
the right-of-way. The Public Works Director may delegate any or all
of the duties hereunder.
(b)
The Public Works Director is the principal City official responsible
for administration of the registration of a service provider. The
Public Works Director may delegate any or all of the duties hereunder.
(c)
The Public Works Director shall prepare, maintain and update schedules
of planned road construction and overlay, with proposed start dates.
These schedules shall be available for inspection by service providers
and the public at the Crestwood Government Center or other location(s)
as so designated.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
Any existing service provider must register within 30 days of the
effective date of this article.
(b)
Any person, who is not an existing service provider prior to the
effective date of this article and who wishes to become a service
provider, must first register with the City.
(c)
The service provider shall report any changes in its registration
information within 30 days.
(d)
No service provider shall be authorized to utilize the right-of-way
in any capacity or manner without registering and obtaining the necessary
right-of-way permit from the City.
(e)
The information required for registration includes the following:
(1)
Identity and legal status of service provider, including related
affiliates.
(2)
Name, address, telephone number, fax number and e-mail address
of officer, agent or employee responsible for the accuracy of the
registration statement.
(3)
Name, address, telephone number, fax number and e-mail address
of the local representative of the service provider who shall be available
at all times to act on behalf of the service provider in the event
of an emergency.
(4)
Proof of any necessary permit, license, certification, grant,
registration, franchise agreement or any other authorization required
by any appropriate governmental entity, including, but not limited
to, the City or the FCC.
(5)
Description of the service provider's intended use of the right-of-way.
(6)
Information sufficient to determine whether the service provider
is subject to franchising by Missouri law.
(7)
Information sufficient to determine that the service provider
has applied for and received any permit or other approvals required
by the Federal Communications Commission.
(8)
Information which identifies reseller service providers as provided
hereinafter.
(9)
Such other information as may be required by the City to complete
the registration statement.
(f)
Each service provider shall designate a local person familiar with
the facilities that will act as a local agent for the service provider
and will be responsible for satisfying information requirements of
this article. The service provider shall present to the City the agent's
name, address, telephone number, fax number and e-mail address. The
agent shall be the person to whom relocation notices and other such
notices shall be sent, and with whom rests the responsibility to facilitate
all necessary communications. The service provider shall be responsible
for all costs incurred by the City due to the failure to provide such
information to the City.
(g)
The service provider shall participate in any joint planning, construction
and advance notification of right-of-way work, including coordination
and consolidation of street cut work as directed by the Public Works
Director. In addition, the service provider shall cooperate with other
service providers and the City for the best, most efficient, most
aesthetic and least obtrusive use of the right-of-way, consistent
with safety, and to minimize traffic and other disruptions, including
street cuts.
(h)
To the extent allowed by law, the City may limit the number of registrations
in a competitively neutral manner, based upon, but not necessarily
limited to, specific local considerations such as:
(1)
The capacity of the right-of-way to accommodate service facilities;
(2)
The impact on the community of the volume of facilities in the
right-of-way;
(3)
The disruption arising from numerous excavations of the right-of-way;
(4)
The financial capabilities of the service provider and its guaranteed
commitment to make necessary investments to erect, maintain and operate
the proposed facilities; or
(5)
Any other consideration based upon the interests of the public
safety and welfare.
(i)
The City shall not exercise its authority under this provision to
in any way deter competition or discriminate against any service provider.
[Ord. No. 3746, § 4, 9-10-2002]
In the event a service provider shall sell, transfer, lease, assign, sublet, or dispose of its facilities, or any portion thereof, that is located in City right-of-way, or any right, title or interest in the same, or transfer of any rights granted by the City to any person either by forced or involuntary sale, or by ordinary sale, consolidation or otherwise, it shall notify the City of same. In such case, the buyer, transferee, lessee or assignee shall be subject to the terms and conditions of this article, including the requirement to register as provided in § 24-68. This provision shall not apply to the sale of property or equipment in the normal course of business. No notice to the City shall be required for a transfer in trust, mortgage, or other similar instrument, in whole or in part, to secure an indebtedness, or for a pro forma transfer to a corporation, partnership, or other entity controlling, controlled by or under common control with the service provider.
[Ord. No. 3746, § 4, 9-10-2002]
A service provider may permit and has the authority to sell,
sublet, or lease any use of excess capacity and sell services for
resale to any reseller service provider providing service within the
City, including the service provider's subsidiary or affiliate. The
reseller service provider shall first register and obtain any necessary
permit, license, certification, grant, registration, franchise agreement
or any other authorization required by any appropriate governmental
entity, including, but not limited to, the City or the FCC. Unless
otherwise prohibited by law or regulatory authority, the service provider
shall use all reasonable efforts to provide the City on an annual
basis the identity of entities with which the service provider has
entered into an interconnection and/or resale agreement within the
City. This notice will not relieve the reseller service provider from
its own obligation to register and obtain any necessary franchise
with the City. Nothing in this article shall prevent a facility-based
service provider from providing to any reseller service provider the
use of the facility-based service provider's facilities in the right-of-way
as authorized by federal or state law.
[Ord. No. 3746, § 4, 9-10-2002; Ord. No. 4814, § 4, 11-28-2017]
(a)
The ROW-user's use of the right-of-way shall in all matters be subordinate
to the City's use or occupation of the right-of-way. Without limitations
of its rights, the City expressly reserves the right to exercise its
governmental powers now and hereafter vested in or granted to the
City.
(b)
The ROW-user shall coordinate the placement of facilities in a manner
that minimizes adverse impact on any public improvement, as reasonably
determined by the City. Where placement is not regulated, the facilities
shall be placed with adequate clearance from such public improvements
so as not to impact or be impacted by such public improvement in accordance
with such standards as adopted by the City and made known to the ROW-user.
(c)
The ROW-user shall consider any request made by the City concerning
placement of facilities in private easements in order to limit or
eliminate future street improvement relocation expenses.
(d)
All facilities shall be located and laid so as not to disrupt or
interfere with any pipes, drains, sewers, irrigation systems or other
structures or public improvements already installed. In addition,
the ROW-user shall, in doing work in connection with its facilities,
avoid, so far as may be practicable, disrupting or interfering with
the lawful use of the streets, alleys, sidewalks or other public lands
of the City.
(e)
All facilities of the ROW-user shall be placed so that they do not
interfere with the use of right-of-way and public lands. The City,
through its Public Works Director, shall have the right to consult
and review the location, design and nature of the facility prior to
installation.
(f)
The ROW-user shall not interfere with the facilities of the other
ROW-users without obtaining their permission. If and when the City
requires or negotiates to have a service provider cease using its
existing poles and to relocate its facilities underground, all other
service providers using the same poles shall also relocate their facilities
underground at the same time. The City may waive this requirement
when in its sole discretion, it deems relocation impractical. The
cost of such relocation shall be borne in accordance with this article
and any applicable tax governing that service provider.
(g)
The Public Works Director may assign specific corridors within the
right-of-way, or any particular segment thereof as may be necessary,
for each type of facility that is currently or, pursuant to current
technology, the Public Works Director expects will someday be located
within the right-of-way. All right-of-way permits issued by the Public
Works Director shall indicate the proper corridor for the ROW-user's
facilities. Any ROW-user whose facilities are currently in the right-of-way
in a position at a variance with the designated corridors shall, no
later than at the time of next reconstruction or excavation of the
area where its facilities are located, move the facilities to its
assigned position within the right-of-way, unless this requirement
is waived by the Public Works Director for good cause shown, upon
consideration of such factors as the remaining economic life of the
facilities, public safety, user service needs and hardship to the
ROW-user.
(h)
If, in the preparation and planning of right-of-way project, the
Public Works Director deems it appropriate for a conduit to be constructed
along, across or under the right-of-way, the Public Works Director
shall contact all appropriate ROW-users for their input on the planning
and design of such conduit. If a ROW-user desires to construct, maintain
or operate facilities along such right-of-way, the Public Works Director
may require the ROW-user to use such conduit, and to contribute to
the cost of such conduit, provided, however, the ROW-user's use of
the conduit is reasonable and appropriate under the circumstances.
(i)
All earth, materials, sidewalks, paving, crossings, utilities, other
public improvements or improvements of any kind damaged or removed
by the ROW-user shall be fully repaired or replaced promptly by the
ROW-user at its sole expense and to the reasonable satisfaction of
the City. Upon determination by the Public Works Director that such
repair or replacement is a public safety matter, all such repair or
replacement shall be corrected within 24 hours of notice from the
City, or the Public Works Director may cause such repair or replacement
to be completed and bill the ROW-user for the cost. The Public Works
Director has the authority to inspect the repair or replacement of
the damage, and if necessary, to require the ROW-user to do any necessary
additional work.
(j)
All technical standards governing construction, reconstruction, installation,
operation, testing, use maintenance, and dismantling of a ROW-user's
facilities in the right-of-way shall be in accordance with applicable
federal, state and local law and regulations, including those promulgated
by national trade associations commonly associated with the service
provided by the ROW-user. A ROW-user shall not construct or reconstruct
any of its facilities located upon, over, under or within the City
right-of-way without first having submitted in writing a description
of its planned improvement to the Public Works Director and having
received a permit for such improvement. The Public Works Director
may require that any drawings, plans and/or specifications comply
with all applicable technical codes, rules and regulations, unless
such plans are based directly on nationally recognized codes.
(k)
The ROW-user shall cooperate promptly and fully with the City and
take all reasonable measures necessary to provide accurate and complete
on-site information regarding the nature and location of its facilities
within the right-of-way, both underground and overhead, when requested
by the City or its authorized agent for a public improvement. Such
location and identification shall be at the sole expense of the ROW-user
without any expense to the City, its employees, agents, or authorized
contractors.
(l)
Wireless facilities, and support structures. Pursuant to the City's
authority, including by RSMo. 67.1830, and due to the limited space
in the City's rights-of-way and in order to minimize obstructions
and interference with the use of the rights-of-way and to ensure traffic
safety, preserve property values, and enforce the public policy to
maintain neutrality as to ownership of wireless locations, wireless
facilities, support structures and equipment shall not be permitted
in the rights-of-way on new structures unless the Board of Aldermen
determines on a non-discriminatory basis such proposed application
is in the public interest addressing all concerns stated in this article,
and provided such use and location has received prior, separate zoning
authorization to the extent permitted by law. In such circumstances
where any new wireless application is permitted in the rights-of-way,
such uses shall be subject to reasonable regulations, including any
applicable specifications, compensation, and other terms established
by the City in such approval or agreements. Wireless antennas and
related facilities on existing structures or underground may be permitted
in the same manner as other uses in the rights-of-way but subject
to approval, denial or condition relating to location, design, height,
appearance, safety, and such other zoning, building specification
or other regulations, except as may be limited by law.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
The ROW-user shall promptly remove, relocate or adjust any facilities
located in the right-of-way as directed by the City for a public improvement
or when reasonably required by the City by reason of 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 relocations promptly upon
notice by the City to begin relocation.
(b)
The ROW-user shall promptly remove, relocate or adjust any facilities
located in private easement, at the City's cost and as directed by
the City, for a public improvement, by moving such facilities to areas
within the expanded right-of-way or within remaining private easements
or remaining portions of such easements not condemned by nor disclaimed
to the City to avoid conflict with City construction and improvements.
The ROW-user shall disclaim those parts of its easements, which lie
within the expanded right-of-way. Should the City, in the future,
decide to require the ROW-user to again relocate its facilities to
other areas within the expanded right-of-way, the cost of any such
future relocation shall be borne by the City.
(c)
As soon as working drawings are available for public improvements
that will require the ROW-user to relocate its facilities, the City
shall provide the ROW-user with written notice of relocations and
the anticipated bid letting date of said improvements. The ROW-user
shall respond with any conflicts and a proposed construction schedule
within 30 days.
(d)
Following notice by the City in the form of the delivery of final
design plans for such public improvements, the ROW-user shall remove
and relocate its facilities in accordance with the mutually agreed
upon schedule, provided the project is not delayed by adverse weather
conditions and other factors beyond the control of the ROW-user. The
ROW-use shall certify to the City, in writing, that its facilities
have been relocated or adjusted to clear construction in accordance
with project plans provided by the City.
(e)
Any damages suffered by the City, its agents or its contractors to
the extent caused by ROW-user's failure to timely relocate or adjust
its facilities, or failure to properly relocate or adjust such facilities,
shall be borne by the ROW-user.
(f)
In the event the ROW-user is required to move its facilities in accordance
with this section, the right-of-way permit fee hereunder shall be
waived.
(g)
It is the intent of this section for both the City and the ROW-user
to cooperate with one another so that the need for facility relocation
is minimized and, when required and feasible, relocations may be completed
prior to receipts of bids by the City for a public improvement.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
It shall be the responsibility of the ROW-user to take adequate measures
to protect and defend its facilities in the right-of-way from harm
and damage.
(b)
The City shall be liable for any damage to or loss of any of the
ROW-user's facilities within the right-of-way as a result of or in
connection with any construction, excavation, grading, filling or
work, including public improvements by or on behalf of the City, to
the extent caused by the negligent, willful, intentional, or malicious
acts of the City.
(c)
The ROW-user shall be responsible to the City and its agents, representatives,
and authorized contractors for all damages including, but not limited
to delay of any kind arising out of the failure of the ROW-user to
perform any of its obligations under this article.
(d)
The City or its authorized contractors shall be responsible for taking
reasonable precautionary measures including requesting facility locations.
(e)
Any ROW-user who for any purpose makes or causes to be made any excavation
in, upon, under, through or adjoining any street, sidewalk, alley,
or other right-of-way, and shall leave any part or portion thereof
open, or shall leave part or portion thereof disrupted with rubbish,
building or other material during construction and/or the night time,
shall cause the same to be enclosed with good substantial and sufficient
barricades or drums equipped with the appropriate type warning lights
and orange safety fencing material properly secured around the excavation
or the disruption.
(f)
Whenever a ROW-user shall excavate the full width of any street,
sidewalk, driveway approach or other right-of-way, it shall be its
duty to maintain an adequate passage for vehicles and pedestrians
across or around the excavation until it is refilled as specified.
(g)
Any excavation left open overnight on any arterial or collector type
street shall be securely covered. 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.
(h)
In the event the ROW-user severely disturbs or damages the root structure
of any tree in the right-of-way to the detriment of the health and
safety of the tree, the ROW-user will be required to remove and replace
the tree at the ROW-user's cost. Further, in review of the ROW-user's
plan, the Public Works Director, in his discretion, may require the
ROW-user to directionally bore around any tree in the right-of-way.
(i)
Upon the appropriate request of any person having satisfied City
procedure and ordinances, the ROW-user shall remove, raise, or lower
its facilities temporarily to permit the moving of houses or other
structures. The expense of such temporary removal, raising or lowering
shall be paid by the person requesting the same, and the ROW-user
may require such payment in advance. The ROW-user must be given not
less than 15 days' written notice from the person detailing the time
and location of the moving operations.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
If the City vacates a right-of-way which contains the facilities
of the service provider, and if the vacation does not require the
relocation of the service provider's facilities, the City shall reserve,
to and for itself and all service providers having facilities in the
vacated right-of-way, an easement for the right to install, maintain
and operate any facilities in the vacated right-of-way and to enter
upon such vacated right-of-way at any time for the purpose of reconstructing,
inspecting, maintaining or repairing the same.
(b)
If the vacation requires the relocation of facilities, and
(1)
If the vacation proceedings are initiated by the service provider,
the service provider must pay the relocation costs, or
(2)
If the vacation proceedings are initiated by the City, the service
provider must pay the relocation costs unless otherwise agreed to
by the City and the service provider, or
(3)
If a person other than the service provider or the City initiates
the vacation proceedings, such other person must pay the relocation
costs.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
The Public Works Director may allow underground facilities or portions
thereof to remain in place if the Public Works Director determines
that it is in the best interest of public safety to do so. If the
ROW-user proceeds under this section, the ROW-user shall submit to
the City a proposal and instruments for transferring ownership of
its facilities to the City.
(b)
Facilities of a ROW-user who fails to comply with this section, and
whose facilities remain unused for two years, shall be deemed to be
abandoned. The City may take possession and ownership of such facilities.
[Ord. No. 3746, § 4, 9-10-2002; Ord. No. 4814, § 5, 11-28-2017]
(a)
Except as otherwise provided, no ROW-user may excavate any right-of-way
or conduct any repair, construction, or reconstruction of facilities
located within the right-of-way without first having obtained the
appropriate right-of-way permit.
(c)
No person owning or occupying any land abutting on a public right-of-way
shall construct, maintain, or permit in or on the portion of the public
right-of-way to which such land is adjacent, any fixed structure,
material or object other than a U.S. Mail box without having obtained
the appropriate right-of-way permit.
(d)
A right-of-way permit is required for emergency situations. If, due
to an emergency, it is necessary for the ROW-user to immediately perform
work in the right-of-way, and it is impractical for the ROW-user to
first get the appropriate permit, the work may be performed, and the
required permit shall be obtained during the next business day.
(e)
Except in the case of an emergency, the Public Works Director may
deny an application for permit in the following events:
(1)
Facilities work is sought which requires excavation of any portion
of the paved public right-of-way which was constructed or reconstructed
in the preceding five years, or has a pavement condition index (PCI)
greater than 85, as determined by the Public Works Director.
(2)
The applicant, contractor or facilities owner owes undisputed
past due fees from prior permits, or is in violation of the provisions
of this article.
(3)
The applicant, contractor, or facilities owner has failed to
return the public right-of-way to its previous and acceptable condition
under previous permits.
(4)
The facilities work will cause undue disruption to existing
or planned utilities, transportation, public or City use.
(5)
Failure to pay for damages caused to any City facilities from
prior facilities work by the applicant or facilities owner.
(f)
No permittee may excavate the right-of-way beyond the date or dates
specified in the right-of-way permit unless the permittee:
(g)
Right-of-way permits issued shall be conspicuously displayed by the
permittee at all times at the indicated work site and shall be available
for inspection by the Public Works Director, other City employees
and the public. In lieu of the display of the permit, the City may
issue a sign, stake or other device to confirm the issuance of the
permit that shall be conspicuously displayed at the work site.
(h)
Before receiving a right-of-way permit, the applicant must show proof
of any necessary permit, license, certification, grant, registration
or any other authorization required by any appropriate governmental
entity, including, but not limited to, the City.
(i)
Any ROW-user who is found to be working in the public right-of-way without a permit will be directed to stop work until a permit is acquired and properly posted at the work site. The only exception allowed is for emergency repair work. Refusal to comply with a stop work order is punishable as provided in § 24-96.
(j)
Any permittee found to be working without providing for required safety and traffic control will be directed to stop work until the appropriate measures are implemented in accordance with the current edition of the manual on uniform traffic control devices. Refusal to comply with a stop work order is punishable as provided in § 24-96.
(k)
Any request to construct or modify any wireless facility or wireless support structure within the City's rights-of-way shall comply with all requirements for placement and construction of wireless facilities and wireless support structures set forth in the Uniform Wireless Communications Infrastructure Deployment Act (RSMo. 67.5090 et seq.) and Division 17 of Article IV of Chapter 26 of this Code, including all applicable permitting requirements.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
Application for a right-of-way permit shall be submitted to the Public
Works Director by the person who will do the work and/or excavation
in the right-of-way.
(b)
Right-of-way applications shall contain and be considered complete
only upon receipt of the following:
(1)
Compliance with verification of registration;
(2)
Submission of a completed permit application form, including
all required attachments and drawings showing the location and area
of the proposed project and the location of all existing and proposed
facilities at such locations;
(3)
A traffic control plan;
(4)
Payment of all money due to the City for permit fees and costs,
for prior excavation costs, for any loss, damage or expense suffered
by the City because of the applicant's prior excavations of the right-of-way
or for any emergency actions taken by the City, unless the payment
of such money is in dispute and timely appealed as provided hereafter;
(5)
A commitment from the applicant to contact the Missouri One
Call program or comparable successor program.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
The permittee shall file with the City evidence of liability insurance
with an insurance company licensed to do business in Missouri. The
amount will be not less than $1,000,000 per occurrence and $2,000,000
in aggregate. The insurance will protect the City from and against
all claims by any person whatsoever for loss or damage from personal
injury, bodily injury, death, or property damage to the extent caused
or alleged to have been caused by the negligent acts or omissions
of the permittee or persons under the control of permittee. If the
permittee 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.
(b)
The permittee shall at all times during the term of the permit, and
for two 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 or the value of the restoration, whichever is greater, for
a term consistent with the term of the permit plus two additional
years, conditioned upon the permittee's faithful performance of the
provisions, terms and conditions required by this article. An annual
bond in an amount of $50,000 automatically renewed yearly during this
period shall satisfy the requirements of this section. In the event
the City shall exercise its right to revoke the permit as granted
herein, then the City shall be entitled to recover under the terms
of said bond the full amount of any loss occasioned thereby.
(c)
A copy of the liability insurance certificate and performance and
maintenance bond must be on file with the City Clerk.
(d)
No performance and maintenance bond or liability insurance will be
required of any governmental entity, or of any residential property
owner working in the right-of-way adjacent to his/her residence, who
does not utilize a contractor to perform the excavation.
[Ord. No. 3746, § 4, 9-10-2002]
The right-of-way permit and inspections fees shall be determined
by the Director of Public Works and listed in the schedule of fees
maintained in the City Clerk's office. Said permit and inspection
fees shall be based on the City's actual costs to manage the City's
right-of-way.
(a)
Application for an excavation permit as required in § 24-76 shall be made on a form provided by the City, which application shall contain information regarding the purpose, location, and size of the proposed excavation and the approximate time work thereon will be commenced, and shall state the length of time applicant estimates will elapse from the commencement of the work until the complete restoration of the surface. Each excavation shall require a separate permit. A minimum of two inspections shall be required for each permit.
(b)
The right-of-way permit fee may include an administrative fee to
be determined by the Public Works Director.
(c)
Fees paid for a right-of-way permit, which is subsequently revoked
by the Public Works Director, are not refundable.
(d)
In the event the scope of the project is revised during the course
of the work, the Public Works Director may recalculate the fee based
on the actual size of the excavation, and may require an additional
administrative fee.
[Ord. No. 3746, § 4, 9-10-2002]
The application for an excavation permit shall include a cash
deposit to ensure the applicant will backfill the excavation, repair
the pavement, and restore the site in compliance with this article.
(a)
The approximate cost of granular backfill, repaving operations, and
general site restoration to be performed by applicant desiring to
make an excavation will be estimated by the Public Works Director
at the time application for an excavation permit is submitted, and
the cost so estimated shall be deposited with the City. The amount
of the deposit shall be reasonably sufficient to secure the City against
any damage or expense which may result from the applicant's failure
to comply with the provisions of this article. The amount of such
deposit shall be based upon the location, purpose, and extent of the
work. The minimum amount of deposit shall be $100 for any excavation
except for excavations in street, sidewalk or driveway pavement and
then the minimum deposit shall be $200. The maximum deposit shall
not exceed $5,000.
(b)
Utility companies, contractors performing excavations under contract
for utility companies, or other governmental agencies are not required
to provide a cash deposit.
(c)
Each permit shall have a separate cash deposit to guarantee backfilling,
paving, and site restoration in accordance with this article.
(d)
Failure of the applicant to call for the final inspection within
one year of the issuance date of the permit shall result in the deposit
being forfeited by the applicant, and said deposit shall be paid to
the City treasury as general revenue.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
If the Public Works Director determines that the applicant has satisfied
the requirements of this article, the Public Works Director shall
issue a right-of-way permit.
(b)
The Public Works Director may impose reasonable conditions upon the
issuance of a right-of-way permit and the performance of the permittee
in order to protect the public health, safety and welfare, to ensure
the structural integrity of the right-of-way, to protect the property
and safety of other users of the right-of-way, and to minimize the
disruption and inconvenience to the public.
(c)
When a right-of-way permit is requested for purposes of installing
additional facilities and a performance and maintenance bond for additional
facilities is reasonably determined to be insufficient, the posting
of an additional or larger performance and maintenance bond for the
additional facilities may be required.
(d)
Issued permits are not transferable.
(e)
If work is being done for the ROW-user by another person, a subcontractor
or otherwise, the person doing the work and the ROW-user shall be
jointly and severally liable and responsible for all damages, obligations,
and warranties herein described.
(f)
A right-of-way permit shall have an effective date and an expiration
date. Establishment of the expiration date shall be in the discretion
of the Public Works Director, which discretion shall be reasonably
exercised to achieve the City's policy of minimizing disruption of
public rights-of-way.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
The permittee shall not make any cut, excavation or grading of right-of-way
other than excavations necessary for emergency repairs without first
securing a right-of-way permit.
(b)
The permittee shall not, at any one time, open or encumber more of
the right-of-way than shall be reasonably necessary to enable the
permittee to complete the project in the most expeditious manner.
(c)
The permittee shall, in the performance of any work required for
the installation, repair, maintenance, relocation and/or removal of
any of its facilities, limit all excavations to those excavations
that are necessary for efficient operation.
(d)
The permittee shall not permit such an excavation to remain open
longer than is necessary to compete the repair or installation.
(e)
The permittee shall notify the City no less than three working days
in advance of any construction, reconstruction, repair, location or
relocation of facilities which would require any street closure or
which reduces traffic flow to less than two lanes of moving traffic
for more than four hours. No construction work shall begin in any
street right-of-way and no curb on any street shall be cut until at
least 48 hours' prior notice of intention to begin work is given to
the Public Works Director by the facilities owner, permittee or contractor.
Except in the event of an emergency as reasonably determined by the
permittee, no such closure shall take place without notice and prior
authorization from the City.
(f)
Non-emergency work on arterial and collector streets may not be performed
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.
(g)
No such work shall be done until a City inspector is present. If
any portion of the work fails to meet the requirements hereunder,
the Public Works Director or inspector on the job shall cause the
work to be stopped until the unsatisfactory conditions are remedied.
(h)
If any portion of any street, sidewalk, curb, alley or driveway entrance
is constructed in violation of the provisions hereof, the Public Works
Director may order such work to be removed unless the owner, permittee
or contractor shall submit borings and such other tests as shall be
required by the Public Works Director and the Director is satisfied
that the work has been done in conformity with applicable specifications.
(i)
The permittee shall provide for the flow of all water courses, sewers
or drains intercepted during the facilities work and shall replace
same in as good condition as same were at the time facilities work
was begun or shall make such provisions for them as the Public Works
Director shall prescribe. The permittee shall not obstruct the gutter
of any street and shall use all proper measures to provide for the
free passage of surface water. The permittee shall make provision
to take care of all surplus water, muck, silt, slickings or other
runoff pumped from the work site or other operations and shall be
responsible for any damage resulting from the failure to so provide.
(j)
All work performed in the right-of-way or which in any way impacts
vehicular or pedestrian traffic shall be properly signed, barricaded,
and otherwise protected at the permittee's expense. Such signage shall
be in conformance with the latest edition of the manual on uniform
traffic control devices, unless otherwise agreed to by the City.
(k)
The permittee shall be liable for any damages to underground facilities
caused by its work. The permittee shall not make or attempt to make
repairs, relocation or replacement of damaged or disturbed underground
facilities without the approval of the owner of the facilities.
(l)
Whenever there is an excavation by the permittee, the permittee shall
be responsible for providing appropriate traffic control measures
to assure that during the performance of the excavation work traffic
conditions as nearly normal as practicable shall be maintained at
all times so as to cause as little inconvenience as possible to the
occupants of the abutting property and to the general public, provided
that the Public Works Director may permit the closing of streets to
all traffic for a period of time if in the opinion of the Public Works
Director such closing is necessary. The permittee shall route and
control traffic including its own vehicles as directed by the Public
Works Director. The following steps shall be taken before any roadway
may be closed or restricted to traffic:
(1)
The permittee must receive the approval of the Public Works
Director and the Police Department;
(2)
The permittee must notify the Fire Department of any street
so closed;
(3)
Upon completion of construction work, the permittee shall notify
the Public Works Director and City Police Department before traffic
is moved back to its normal flow so that any necessary adjustments
may be made;
(4)
When flagmen are deemed necessary by the Public Works Director,
they shall be furnished by the permittee at its own expense. Through
traffic shall be maintained without the aid of detours, if possible.
In instances in which this would not be feasible, the Public Works
Director will designate detours. The City shall maintain roadway surfaces
of existing highways designated as detours without expense to the
permittee; but in case there are no existing highways, the permittee
shall construct all detours at its expense and in conformity with
the specifications of the Public Works Director. The permittee will
be responsible for any unnecessary damage caused to any highways by
the operation of its equipment.
In the event the excavation is not completed within the time
established by the permit, the permittee shall pay to the City the
sum of $100 per day as liquidated damages, and not as a penalty, to
be deducted from the deposit of the permittee, if sufficient.
(m)
All facilities and other appurtenances laid, constructed and maintained
by the permittee shall be laid, constructed and maintained in accordance
with acceptable engineering practices and in full accord with any
and all applicable engineering codes adopted or approved by the parties
and in accordance with applicable statutes of the State of Missouri,
as well as the rules and regulations of any local, state or federal
agency having jurisdiction over the parties.
(n)
Following completion of permitted work for new construction, the
permittee shall keep, maintain and provide to the City accurate records
and as-built drawings, drawn to scale and certified to the City as
accurately depicting the location of all facilities constructed pursuant
to the permit. When available to the permittee, maps and drawings
provided will be submitted in AUTOCAD.DXF, AUTOCAD.DWG, MICROSTATION.DGN
(or comparable, as allowed by the Public Works Director) automated
formats if available, or in hard copy otherwise. The Public Works
Director may waive this requirement.
(o)
The City may use the as-built records of the service provider's facilities
in connection with any public improvements.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
The work to be done under the right-of-way permit and the repair
and restoration of the right-of-way as required herein must be completed
within the dates as specified by the permit. However, in the event
of circumstances beyond the control of the permittee or when work
was delayed by conditions beyond the permittee's control, the Public
Works Director may extend the date for completion of the project upon
receipt of a supplementary application for a permit extension.
(b)
All earth, materials, sidewalks, paving, crossing, utilities, public
improvement or improvements of any kind damaged or removed by the
permittee shall be fully repaired or replaced promptly by the permittee
at its sole expense and to the reasonable satisfaction of the City.
The Public Works Director has the authority to inspect the repair
or replacement of the damage, and if necessary, to require the permittee
to do additional necessary work. Notice of the unsatisfactory restoration
and the deficiencies found will be provided to the permittee and a
reasonable time not to exceed 15 days will be provided to allow for
the deficiencies to be corrected.
(c)
After any excavation, the permittee shall, at its expense, restore
all portions of the right-of-way.
(d)
If the permittee fails to restore the right-of-way in the manner
and to the condition required by the Public Works Director, or fails
to satisfactorily and timely complete all restoration, the City may,
at its option, serve written notice upon the permittee and its surety
that, unless within five days after serving of such notice, a satisfactory
arrangement can be made for the proper restoration of the right-of-way,
the City shall immediately serve notice of failure to comply upon
the surety and the permittee, and the surety shall have the right
to take over and complete the work, provided, however, that if the
surety does not commence performance thereof within 10 days from the
date of notice, the City may take over the work and undertake same
to completion, by contract or otherwise, at the expense of the permittee,
and the permittee and its surety shall be liable to the City for any
and all cost incurred by the City by reason of such completion.
(e)
The permittee responsible for the excavation shall be responsible
for providing safety protection in accordance with the latest edition
of the manual of uniform traffic control devices and any applicable
federal or state requirements.
(f)
If an excavation cannot be back-filled immediately and is left unattended,
the permittee shall securely and adequately cover the unfilled excavation.
The permittee has sole responsibility for maintaining proper barricades,
safety fencing and/or lights as required, from the time of the opening
of the excavation until the excavation is surfaced and opened for
travel.
(g)
In restoring the right-of-way, the permittee guarantees its work
and shall maintain it for 24 months following its completion. During
the 24 months the permittee shall, upon notification from the Public
Works Director, correct all restoration work to the extent necessary,
using any method as required by the Public Works Director. Said work
shall be completed within a reasonable time, not to exceed 30 calendar
days, of the receipt of notice from the Public Works Director (not
including days during which work cannot be done because of circumstances
constituting force majeure or days when work is otherwise delayed
through no fault of the permittee). The Public Works Director shall
have the authority to extend the guarantee period for up to an additional
24 months from the date of any new restoration, if the Public Works
Director determines any intentional action by the permittee not to
comply with the conditions of the right-of-way permit and any restoration
requirements. The foregoing shall not apply to landscaping materials
restored in the right-of-way; however, landscaping material must be
replaced as directed by the Public Works Director and reasonable efforts
taken to assure their survival.
(h)
The twenty-four-month guarantee period shall be applicable to failure
of the pavement surface as well as failure below the pavement surface.
(i)
All excavations in a street shall be restored and maintained in accordance
with the following:
(1)
No person shall perform any backfilling in any excavation unless
an inspector from the Department of Public Works is present to observe
the work and the backfill is made in accordance with the standards
established hereunder.
(2)
Whenever it is necessary to break through existing pavement,
the pavement shall be removed to at least two feet beyond the outer
limits of the subgrade that is to be disturbed in order to prevent
settlement and a two foot shoulder of undisturbed materials shall
be provided in each side of the excavated trench. The face of the
remaining pavement shall be approximately vertical. A power-driven
concrete saw shall be used so as to permit complete breakage of concrete
pavement or base without ragged edges. Asphalt paving shall be cut
in a straight line. No pile driver may be used in breaking up the
pavement.
(3)
The Public Works Director shall prepare a utility policy that
shall contain a detailed set of specifications for backfilling and
restoring pavement.
(4)
No person shall make any street excavation without providing
barricades around the same as a warning to the public and providing
adequate lights around the excavation between sunset and sunrise.
Traffic warning signs and devices shall be provided in accordance
with the manual on uniform traffic control devices, as amended from
time to time, and as required by the Public Works Director.
(5)
Should a facilities owner desire to have the City restore the
surface of the street with a PCI greater than 70, then they shall
pay an additional amount equal to the City's actual cost to perform
the pavement restoration. These costs shall be determined by the Director
of Public Works on a time and material basis.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
Applicants may apply jointly for permits to excavate the right-of-way
at the same time and place. All joint applicants must jointly execute
all required documents and shall be jointly and severally liable for
all duties and obligations hereunder.
(b)
Applicants who apply jointly for a right-of-way permit may share
in the payment of the permit fee. Applicants must agree among themselves
as to the portion each shall pay.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
A right-of-way permit shall only be valid for the area of the right-of-way
specified within the permit. No permittee may cause any work to be
done outside the area specified in the permit, except as provided
herein. Any permittee who determines that an area greater than that
which is specified in the permit must be excavated must do the following
prior to the commencement of work in that greater area:
(b)
A right-of-way permit shall be valid only for the dates specified
in the permit. No permittee may commence work before the permit start
date or, except as provided herein, continue working after the end
date. If a permittee does not complete the work by the permit end
date, the permittee must apply for and receive a new right-of-way
permit or a permit extension for additional time. This application
must be submitted to the City prior to the original permit end date.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
Obtaining a right-of-way permit under this article shall not relieve
the permittee of its duty to obtain any necessary permit, license,
certification, grant, registration, franchise agreement or any other
authorization required by any appropriate governmental entity, including,
but not limited to, the City or the FCC, and to pay any fees required
by any other City, county, state, or federal rules, laws or regulations.
A permittee shall perform all work in full accord with any and all
applicable engineering codes adopted or approved by the parties and
in accordance with applicable statutes of the State of Missouri, and
the rules and regulations of the FCC or any other local, state or
federal agency having jurisdiction over the parties. A permittee shall
perform all work in conformance with all applicable codes and established
rules and regulations and shall be responsible for all work done in
the right-of-way pursuant to its permit, regardless of who does the
work.
(b)
Except in cases of an emergency or with approval of the Public Works
Director, no right-of-way work may be done when conditions are unreasonable
for such work.
(c)
A permittee shall not disrupt a right-of-way such that the natural
free and clear passage of water through the gutters or other waterways
is interfered with private vehicles may not be parked within or next
to the permit area.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
The Public Works Director may deny a permit to protect the public
health, safety and welfare, to prevent interference with the safety
and convenience of ordinary travel over the right-of-way, or when
necessary, to protect the right-of-way and its users. The Public Works
Director, at his discretion, may consider one or more of the following
factors in denial of the permit:
(1)
The extent to which the right-of-way space where the permit
is sought is available;
(2)
The competing demands for the particular space in the right-of-way;
(3)
The availability of other locations in the affected right-of-way
or in other rights-of-way for the facilities of the applicant;
(4)
The applicability of any ordinance or other regulations that
affect location of facilities in the right-of-way;
(5)
The degree of compliance of the applicant with the terms and
conditions of its franchise, this article, and other applicable ordinances
and regulations;
(6)
The degree of disruption to surrounding communities and businesses
that will result from the use of that part of the right-of-way;
(7)
The condition and age of the right-of-way, and whether the right-of-way
was constructed or reconstructed within the preceding five years;
(8)
The balancing of costs of disruption to the public and damage
to the right-of-way, against the benefits to that part of the public
served by the construction in the right-of-way;
(9)
Whether the applicant maintains a current registration with
the City;
(10)
Whether the applicant has failed within the last three years
to comply with, or is presently not in full compliance with, the requirements
of this article;
(11)
Whether the applicant owes monies to the City;
(12)
Whether the issuance of a right-of-way permit for the particular
dates and/or time requested would cause a conflict or interferes with
an exhibition, celebration, festival, or any other event. In exercising
this discretion, the Public Works Director shall be guided by the
safety and convenience of anticipated travel of the public over the
right-of-way.
(b)
Notwithstanding the above provisions, the Public Works Director may,
in his discretion, issue a right-of-way permit in any case where the
permit is necessary to:
[Ord. No. 3746, § 4, 9-10-2002]
(a)
Permittees hold right-of-way permits issued pursuant to this article
as a privilege and not as a right. The City reserves its right, as
provided herein, to revoke any right-of-way permit, without refund
of the permit fee, in the event of a substantial breach of the terms
and conditions of any law or the right-of-way permit. A substantial
breach shall include, but not be limited to, the following:
(1)
The violation of any material provision of the right-of-way
permit;
(2)
An evasion or attempt to evade any material provision of the
right-of-way permit, or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its residents;
(3)
Any material misrepresentation of any fact in the permit application;
(4)
The failure to maintain the required bond or insurance;
(5)
The failure to complete the work in a timely manner;
(6)
The failure to correct a condition indicated on an order issued
pursuant to this article;
(7)
Repeated traffic control violations; or
(8)
Failure to repair facilities damaged in the right-of-way.
(b)
If the Public Works Director determines that the permittee has committed
a substantial breach of any law or condition placed on the right-of-way
permit, the Public Works Director shall make a written demand upon
the permittee to remedy such violation. The demand shall state that
the continued violation may be cause for revocation of the permit,
or legal action if applicable. Further, a substantial breach, as stated
above, will allow the Public Works Director, at his discretion, to
place additional or revised conditions on the right-of-way permit,
specifically related to the manner in which the breach is cured by
the permittee. Within five calendar days of receiving notification
of the breach, permittee shall contact the Public Works Director with
a plan, acceptable to the Public Works Director, for correction of
the breach. Permittee's failure to contact the Public Works Director,
permittee's failure to submit an acceptable plan, or permittee's failure
to reasonably implement the approved plan shall be cause for immediate
revocation of the right-of-way permit.
(c)
If a right-of-way permit is revoked, the permittee shall also reimburse
the City for the City's reasonable costs, including administrative
costs, restoration costs and the costs of collection and reasonable
attorneys' fees incurred in connection with such revocation.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
Any excavation, backfilling, repair and restoration, and all other
work performed in the right-of-way shall be done in conformance with
the City's standards as promulgated by the Public Works Director.
(b)
The permittee will notify the Public Works Director to schedule an
inspection at the start of backfilling. Upon completion of all right-of-way
restorative activities, the permittee will schedule a closeout inspection.
In the event a permittee fails to obtain any interim inspections,
the Public Works Director may require re-opening of the excavation
to allow such inspections.
(c)
The permittee shall notify the office of the Public Works Director
upon completion of the authorized work permit.
(d)
When any corrective actions required have been completed and inspected
to the Public Works Director's satisfaction, the two-year maintenance/guarantee
period will begin.
(e)
In addition to the required scheduled inspections, the Public Works
Director may choose to inspect the ongoing permitted work in the right-of-way
at any time to ensure that all requirements of the approved permit
are being met by the permittee.
(f)
At the time of any inspection, the Public Works Director may order
the immediate cessation of any work, which poses a serious threat
to the life, health, safety, or well being of the public. The Public
Works Director may issue a citation to the permittee for any work
which does not conform to the applicable standards, conditions, code
or terms of the permit. The citation shall state that failure to correct
the violation will be cause for revocation of the permit.
[Ord. No. 3746, § 4, 9-10-2002; Ord.
No. 5169, 7-27-2021; Amended 8-23-2022 by Ord. No. 5294]
(a)
Whenever a permittee shall deem himself aggrieved by any decision or action taken by the Director of Public Services or his/her designee pursuant to Chapter 24, the permittee may file an appeal to the Public Works Board within 10 calendar days of the date of notice of such decision or action. The decision of the Public Works Board shall be final and no other appeals shall be considered by the City.
(b)
If a permittee still deems himself aggrieved after the appeal to
the Public Works Board, such permittee shall have 30 days after the
effective date of the Public Works Board's final decision to institute
an action in the Circuit Court of St. Louis County, Missouri.
[Ord. No. 3746, § 4, 9-10-2002]
A permittee operating under the provisions of this article shall
fully indemnify, release, defend and hold harmless the City and agents
of the City when acting in their capacity as municipal officials,
employees and agents, from and against any and all claims, demands,
suits, proceedings, and actions, liability and judgment by other persons
for damages, losses, costs, and expenses, including attorney fees,
to the extent caused by negligent acts or omissions of the permittee
or those under the control of the permittee in the performance of
the permitted work. The City agrees to timely notify permittee of
such claim, demand, suit, proceedings, and/or action by providing
written notice to permittee. Nothing herein shall be deemed to prevent
the City, or any agent thereof, from participating in the defense
of any litigation by their own counsel at their own expense. Such
participation shall not under any circumstances relieve the person
from the duty to defend against liability or its duty to pay any judgment
entered against the City, or its agents.
[Ord. No. 3746, § 4, 9-10-2002]
Each and every provision hereof shall be subject to acts of
God, fires, strikes, riots, floods, war and other circumstances beyond
the ROW-user's or the City's control.
[Ord. No. 3746, § 4, 9-10-2002]
This article shall be construed in a manner consistent with
all applicable federal, state, and local laws. Notwithstanding any
other provisions of this article to the contrary, the construction,
operation and maintenance of the ROW-user's facilities shall be in
accordance with all laws and regulations of the United States, the
state and any political subdivision thereof, or any administrative
agency thereof, having jurisdiction. In addition, the ROW-user shall
meet the most stringent technical standards set by regulatory bodies,
including the City, now or hereafter having jurisdiction. The ROW-user's
rights are subject to the police powers of the City to adopt and enforce
ordinances necessary to the health, safety, and welfare of the public.
The ROW-user shall comply with all applicable laws and ordinances
enacted pursuant to that power. Finally, failure of the ROW-user to
comply with any applicable law or regulation may result in a forfeiture
of any permit, registration or authorization granted in accordance
with this article.
[Ord. No. 3746, § 4, 9-10-2002]
If any section, subsection, sentence, clause, phrase, or portion
of this article is for any reason held invalid or unconstitutional
by any court or administrative agency of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent provision
and such holding shall not affect the validity of the remaining portions
hereof.
[Ord. No. 3746, § 4, 9-10-2002]
The City's failure to enforce or remedy any noncompliance of
the terms and conditions of this article or of any permit granted
hereunder shall not constitute a waiver of the City's rights nor a
waiver of any person's obligations as herein provided.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
Any person or entity violating any provision of this article is guilty
of a public offense, and upon conviction thereof shall be fined in
a sum not less than $50 nor more than $500. Every day that this article
is violated shall constitute a separate offense.
(b)
The violation of any provision of this article is hereby deemed to
be grounds for revocation of the permit and registration to operate
within the City.
(c)
The City shall have the authority to maintain civil suits or actions
in any court of competent jurisdiction for the purpose of enforcing
the provisions of this article. In addition to any other remedies,
the City Attorney may institute injunction, mandamus or other appropriate
action or proceeding to prevent violation of this article.
[Ord. No. 3746, § 4, 9-10-2002]
(a)
In addition to any rights specifically reserved to the City by this
article, the City reserves unto itself every right and power which
is required to be reserved by a provision of any ordinance under any
registration, permit or other authorization granted under this article.
The City shall have the right to waive any provision of this article
or any registration, permit or other authorization granted thereunder,
except those required by federal or state law, if the City determines
as follows:
(1)
That it is in the public interest to do so; and
(2)
That the enforcement of such provision will impose an undue
hardship on the person affected thereby.
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To be effective, such waiver shall be evidenced by a statement
in writing signed by a duly authorized representative of the City.
Further, the City hereby reserves to itself the right to intervene
in any suit, action or proceeding involving the provisions herein.
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(b)
Notwithstanding anything to the contrary set forth herein, the provisions
of this article shall not infringe upon the rights of any person pursuant
to any applicable state or federal statutes, including, but not limited
to, the right to occupy the right-of-way.
