[Ord. No. 597 §3, 9-15-2009]
The following terms shall have the following meanings unless
otherwise defined by context:
CITY FACILITIES
Any facilities located within the public rights-of-way and
owned by the City.
CITY MANAGER
The manager or administrator of the City or such other person designated by the City to hear appeals as provided in Section
630.120 hereof.
DIRECTOR
The City's Public Works Director or such other person designated
by the Mayor to administer and enforce this Chapter.
EMERGENCY RIGHTS-OF-WAY (OR "ROW") WORK
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.
FACILITIES
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.
PERSON
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.
RIGHTS-OF-WAY OR ROW
Unless otherwise restricted 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:
1.
City facilities or the City's property other than ROW, such
as City-owned or operated buildings, parks or other similar property,
2.
Airwaves used for cellular, non-wire telecommunications or broadcast
services,
3.
Easements obtained by ROW users on private property,
4.
Railroad rights-of-way or ground used or acquired for railroads,
or
5.
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.
RIGHTS-OF-WAY (OR "ROW") USER
A person performing ROW work within the rights-of-way. A
ROW user shall not include ordinary vehicular or pedestrian use.
RIGHTS-OF-WAY (OR "ROW") WORK
Action by a ROW user to:
1.
Install, change, replace, relocate, remove, maintain or repair
facilities within the rights-of-way, or
2.
To conduct work of any kind within or adjacent to the rights-of-way
that results in an excavation, obstruction, disruption, damage or
physical invasion or impact of any kind to the 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.
SERVICE
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.
WITHIN
In, along, under, over or across rights-of-way.
[Ord. No. 597 §3, 9-15-2009]
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 work 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 users. 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. The Director shall
justify to the applicant that the required alternative is reasonable
and necessary.
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 Subsection
(B)(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 another
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. 597 §3, 9-15-2009]
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 by 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 unfeasible, 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 emit 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
630.090(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 Section
630.130 of this Chapter.
6. No action
hereunder shall be deemed a taking of property and no person shall
be entitled to any compensation therefore. 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
630.090(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
ordinance.
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.
9. All
facilities shall be of good and durable quality.
10. 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.
11. 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.
12. Any
contractor or subcontractor of a ROW user must be properly licensed
under laws of the State and all applicable local ordinances and each
contractor or subcontractor shall have the same obligations with respect
to its work as 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.
13. 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.
14. 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.
15. 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. 597 §3, 9-15-2009]
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 an "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 canceled or allowed to lapse until sixty
(60) days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
5. 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
million 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
millions 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 liability 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:
a. The
City's own negligence, willful misconduct, intentional or criminal
acts, or
b. The
City acting in a proprietary capacity to deliver service(s) within
the City.
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. 597 §3, 9-15-2009]
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 City Manager within five business (5) days thereof. The appeal
shall assert specific grounds for review and the City Manager shall
render a decision on the appeal within fifteen (15) business days
of receipt affirming, reversing or modifying the determination of
the Director. The City Manager 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 City Manager 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 City Manager'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 City Manager may be submitted to mediation or binding arbitration.
2. In the
event of mediation, the City Manager 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 City Manager 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
City Manager, 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 say its own costs, disbursements and attorney fetes.
[Ord. No. 597 §3, 9-15-2009]
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.