[Ord. No. 4.600 §I, 9-12-2005]
Except as provided herein, this Chapter shall apply to all excavation and use, construction, operation and maintenance of facilities in, across, under or over all public rights-of-way within the City.
[Ord. No. 4.600 §II, 9-12-2005]
Definitions And Word Usage. For the purposes of this Chapter, the following terms, phrases, words and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense and vice versa, words in the plural number include the singular number and vice versa, and the masculine gender includes the feminine gender and vice versa. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated or clearly contrary to the context, terms, phrases, words and abbreviations not defined herein shall be given the meaning set forth in the City ordinances, and if not defined therein, their common and ordinary meaning
The specific person applying for and receiving a permit for facilities work.
That form designed by the City of Weston which an applicant must use to obtain a permit to conduct facilities work within, across, under or over the City's rights-of-way.
The Governing Body of the City of Weston, Missouri.
The City of Weston, Missouri, and its agencies, departments, agents and employees acting within their respective areas of authority.
The City Engineer or such other person as designated by the City.
The Mayor or designated City Administrator for the purposes of this Chapter.
Any act by which earth, asphalt, concrete, sand, gravel, rock or any other material in or on the ground is cut into, dug, uncovered, removed, or otherwise displaced, by means of any tools, equipment or explosives, except that the following shall not be deemed excavation:
Any de minimis displacement or movement of ground caused by pedestrian or vehicular traffic;
The replacement of utility poles and related equipment at the existing general location that does not involve either a street or sidewalk cut; or
Any other activity which does not disturb or displace surface conditions of the earth, asphalt, concrete, sand, gravel, rock or any other material in or on the ground.
Any conduit, duct, line, pipe, wire, hose, cable, culvert, pole, receiver, transmitter, satellite dish, micro call, pico cell, repeater, amplifier or other device, material, apparatus or medium usable (whether actually used for such purpose or not) for the transmission or distribution of any service or commodity installed below or above ground within the public rights-of-way of the City, whether used privately or made available to the public. "Facilities" shall not include minor residential or other incidental uses such as mailboxes, driveway aprons, private utility connections or other such non-service related incidental facilities which may be permitted by special permit issued by the City Engineer.
The installation of new facilities or any change, replacement, relocation, removal, alteration or repair of existing facilities that requires excavation within the public rights-of-way, except for:
Individual water and sewer taps permitted as part of a building permit and individual service connections from a supply line, wire or cable for natural gas, electric, cable television, telecommunications or other services to a residence or business.
Work that will not disrupt any pavement, drainage systems or other structures.
8:00 A.M. to 5:00 P.M. Central Time, Monday through Friday.
A permit granted by the City Engineer to do the facilities work within the public rights-of-way.
An individual, partnership, limited liability company, corporation, association, joint stock company, trust, organization or other entity or any lawful successor thereto or transferee thereof.
A written plan of work prepared and presented by an applicant that encompasses an outlined scope of work to be conducted within the City's right-of-way.
The area on, below or above a public roadway, highway, street or alleyway in which the City has an ownership interest, but not including:
The airwaves above a public right-of-way with regard to cellular or other non-wire telecommunications or broadcast service;
Easements obtained by utilities including the municipal utility or private easements in platted subdivisions or tracts;
Railroad rights-of-way and ground utilized or acquired for railroad facilities; or
Poles, pipes, cables, conduits, wires, optical cables or other means of transmission, collection or exchange of communications, information, substances, data or electronic or electrical current or impulses utilized by a municipally owned or operated utility pursuant to Chapter 91, RSMo., or pursuant to a Charter form of government.
No reference herein or in any permit to "public rights-of-way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes.
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, repair facilities, equipment or structures thereon for which a right-of-way permit is required including, but not limited to, landowners and service ROW users. A "ROW user" shall not include the City or any governmental entity that has entered into an agreement with the City regarding the use and occupancy of the City's right-of-way; provided that such users shall be subject to all such requirements as may be required by law.
[Ord. No. 4.600 §III, 9-12-2005]
A.
Agreement Or Franchise Required. Except when otherwise authorized by applicable law, no ROW user may construct, maintain, own, control or use facilities in the rights-of-way without a franchise or ROW agreement with the City as provided herein. All such franchises and agreements shall be approved by ordinance of the Board on a non-discriminatory basis provided that the applicant is in compliance with all applicable requirements. Such franchises and agreements shall be deemed to incorporate the terms of this Chapter and other applicable laws of the City, except as may be expressly stated in such agreements and franchises. Reseller service ROW users shall not be required to obtain a franchise or agreement, but shall be required to register with the City prior to providing service on forms provided by the City.
1.
Franchise. A franchise shall be obtained in conformance with all applicable franchise procedures for any ROW user seeking to use the rights-of-way for purposes of providing cable television service or distribution of electricity, gas, water, steam, lighting or sewer public utility service in the City. Such franchise may be granted only after a public hearing and on satisfaction of all other applicable procedural or substantive requirements. ROW users shall be subject to such other ordinances of the City applicable to specific uses of the ROW. Cable TV service providers shall also be subject to the City's cable television services ordinance (or such other similar ordinance as may have been approved or may be approved from time to time) or such other ordinances of the City applicable to specific uses of the ROW.
2.
ROW agreement. A ROW agreement shall be required for all other ROW users or as agreements with such users are renewed or extended from time to time, except as provided herein or otherwise required by law. Such agreements shall conform to all applicable law, but shall not be subject to procedures applicable to franchises and the City may, if appropriate, approve form agreements that may be executed by the Mayor or City Administrator after approval by the Board.
B.
Franchises And Agreements Non-Exclusive. The authority granted by the City in any agreement or franchise shall be for non-exclusive use of the rights-of-way. The City specifically reserves the right to grant, at any time, such additional agreements or other rights to use the rights-of-way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable law.
C.
Lease Required For Public Lands. Unless otherwise provided, use or installation of any facilities in, on or over public lands of the City non-constituting right-of-way shall be permitted only if a lease agreement or other separate written approval has been negotiated and approved by the City with such reasonable terms and conditions as the City may require.
[Ord. No. 4.600 §IV, 9-12-2005]
Except as provided in this Chapter or as otherwise required by law, no franchise, agreement or permit may be transferred without written notice to the City based on the requirements and policies of this ROW ordinance.
[Ord. No. 4.600 §V, 9-12-2005]
A.
Except as otherwise provided herein, no ROW user or other person shall perform excavation or facilities work in the right-of-way without a right-of-way permit. Any person desiring to conduct facilities work within public rights-of-way shall first apply for and obtain a permit in addition to any other building permit, license, easement or authorization required by law, unless such facilities work must be performed on an emergency basis, then the person conducting the work shall as soon as practicable notify the City of the location of the work and shall apply for the required permit by the next business day following the commencement of the facilities work. A permit should be obtained for each project. A separate special permit or agreement shall be required for excavation in or use of any real property interest of the City that is not right-of-way.
B.
All applications for permits shall be submitted to the City Engineer. The City Engineer shall design and make available standard forms for such application, requiring such information as the City Engineer determines to be necessary, to be consistent with the provisions of this Chapter and applicable law and to accomplish the purposes of this Chapter. Except as may otherwise be provided by law, the application shall contain the following information:
1.
The name, address and telephone number of the applicant.
2.
The legal status of the applicant to do the proposed business in this jurisdiction (corporate status, PSC certifications, etc.).
3.
The name, address and telephone number of a responsible person whom the City may notify or contact at any time concerning the applicant's facilities work in or on the City public rights-of-way.
4.
The name, address and telephone number of the owner of the facilities if different than the applicant.
5.
An engineering site plan showing the proposed location of the applicant's facilities including manholes or overhead poles and the relationship of the facilities to all existing streets; length of rights-of-way; the number of road crossings and the dimensions and character of any cut or excavation, and the number of square feet to be resurfaced.
6.
Each application should include the projected commencement and termination dates or, if such dates are unknown at the time the permit is issued, a provision requiring the permit holder to provide the City Engineer with reasonable advance notice of such dates once they are determined.
7.
Certificates of insurance providing proof of liability coverage for personal injury and property damage in an amount of not less than three hundred thousand dollars ($300,000.00) per person in a single accident or occurrence and not less than two million dollars ($2,000,000.00) for all claims arising out of a single accident or occurrence together with Workers' Compensation coverage of statutory minimums. The limits of liability for each policy coverage amount stated above shall be automatically adjusted upward as necessary to remain at all times not less than the maximum amount of liability set forth in Section 537.610, RSMo., applicable to political subdivisions pursuant to Section 537.600, RSMo.; provided that nothing herein or in any such policy shall be deemed to waive grantor's sovereign immunity. The insurance requirements in this Section or otherwise shall not apply to licensee to the extent and for such period during this agreement as licensee is exempted from such requirements pursuant to Section 67.1830(6)(a), RSMo., provided that licensee shall have filed an affidavit with the City Clerk certifying that licensee has twenty-five million dollars ($25,000,000.00) in net assets and is otherwise therefore so exempted.
8.
Information sufficient to determine whether the ROW user is subject to other laws relating to franchising, service regulation, payment of compensation for the use of the right-of-way, taxation or other requirements as permitted by law.
9.
Any additional information that the City Engineer may require which may include such conditions and requirements as are reasonably necessary to protect structures and facilities in the public rights-of-way from damage and for the proper restoration of such public rights-of-way, structures and facilities and for the protection of the public and the continuity of pedestrian and vehicular traffic.
10.
If the applicant claims an exemption from any requirement in this Chapter, applicant shall include a detailed explanation provision subject to exemption and the facts, legal basis and documentation supporting such exemption.
C.
Building permits issued by the appropriate City Official shall include authorization to make and repair individual service connections in the public rights-of-way without the need for a separate right-of-way permit. All repairs to the right-of-way made as a result of individual service connections shall be in accordance with Section 510.070(B) of this Chapter and applicable construction standards adopted by the City.
D.
Each such application shall be accompanied by payment of fees as designated in this Chapter, pursuant to Section 67.1840, RSMo. The City Engineer shall review each application for a permit and, upon determining that the applicant has all requisite authority to perform the desired facilities work, and that the applicant has submitted all necessary information and has paid the appropriate fee, shall issue the permit, except as provided in Subsection (I) hereof.
E.
It is the intention of the City that disruption of the public rights-of-way should be minimized. Upon receipt of an application for a permit, the City Engineer shall do the following:
1.
Evaluate the degree of excavation necessary to perform the facilities work in the right-of-way and determine whether the proposed excavation will be more than minor in nature. The City Engineer shall grant a permit within ten (10) business days for facilities work deemed minor in nature. If the applicant can show to the City Engineer's reasonable satisfaction that the facilities work involves time sensitive maintenance, then the City Engineer shall grant the permit within two (2) business days. In either instance, if the permit is not issued in thirty-one (31) business days, the aggrieved party may appeal to the Mayor or City Administrator as provided in Subsection (I), unless the applicant is submitting one (1) project application for multiple excavations, constructions or installations; and
2.
For circumstances where the City Engineer determines that the proposed facilities work will not be minor in nature and no exemption under (E)(1), or any other provisions of this Subsection applies, the City Engineer may, consistent with the time requirements set forth in Subsection (E) and in the permit, direct permit holders performing facilities work in the same area to consult with the City Engineer on how they may schedule and coordinate their work to accomplish the goal of this Section. If the permit is not issued within thirty-one (31) business days, the aggrieved party may appeal to the Mayor or City Administrator as provided in Subsection (I) of this Section, unless the applicant is submitting one (1) project application.
F.
An applicant receiving a permit shall promptly notify the City Engineer of any changes in the information submitted in his/her application.
G.
The City Engineer shall maintain an index of all applicants who have been granted permits and their point(s) of contact.
H.
Any permit granted pursuant to this Chapter shall be deemed to include and be subject to the provisions of this Chapter as fully as if copied therein verbatim.
I.
Permit Denial. The City Engineer may deny an application for a right-of-way permit if:
1.
The ROW user or any persons acting on behalf of the ROW user fails to provide all the necessary information requested by the City for managing the public right-of-way.
2.
The ROW user or any persons acting on behalf of the ROW user, including contractors or subcontractors, has a history of non-compliance or permitting non-compliance within the City. For purposes of this Section, "history of non-compliance or permitting non-compliance within the City" shall include the ROW user or any persons acting on behalf of the ROW user, including contractors or subcontractors, has failed to return the public right-of-way to its previous condition under a previous right-of-way.
3.
The City has provided the ROW user with a reasonable, competitively neutral and non-discriminatory justification for requiring an alternative method for performing the excavation or work identified in the right-of-way permit application or a reasonable alternative route that will not result in additional installation expense of more than ten percent (10%) to the ROW user or a declination of service quality.
4.
The City determines that the denial is necessary to protect the public health and safety, provided that the authority of the City does not extend to those items under the jurisdiction of the PSC, such denial shall not interfere with a ROW user's right of eminent domain of private property, if any, and such denials shall only be imposed on a competitively neutral and non-discriminatory basis. In determining whether denial of a right-of-way permit application is necessary to protect the public health and safety, the City Engineer may consider one (1) or more of the following factors:
a.
The extent to which the right-of-way space where the right-of-way permit is sought is available, including the consideration of competing demands for the particular space in the right-of-way or other general conditions of the right-of-way.
b.
The applicability of any ordinance, Code provision or other regulations that affect the location of facilities in the right-of-way.
c.
The degree and nature of disruption to surrounding communities and businesses that will result from the use of that part of the right-of-way, including whether the issuance of a right-of-way permit for the particular dates and/or times requested would cause a conflict or interfere with an exhibition, celebration, festival or any other event.
5.
The area is environmentally sensitive as defined by State Statute or Federal law or is a historic district defined by local ordinance.
6.
The failure to comply with applicable City ordinances or any other reason that would constitute a lawful basis for revocation or denial of a permit to reasonably manage the rights-of-way and protect the public from interference or improper use of the public assets.
J.
The City Engineer may deny an application for the previous listed reasons if deemed in the public's interest.
1.
If a permit is denied due to the location of the planned facilities, the City Engineer will cooperate with the applicant to identify alternative routes which most nearly match the routes requested by applicant for the placement of facilities.
2.
Applicant may appeal any final decision of the City Engineer to the Mayor or City Administrator, which appeal shall be acted upon by the Mayor or City Administrator within five (5) business days, and if denied by the Mayor or City Administrator, the applicant may then appeal to the Board of Aldermen of the City which shall act upon the appeal within sixty (60) days.
K.
Applicable Fees.
1.
Any fees collected pursuant to this Section will be used only to reimburse the City for its actual costs incurred in managing the activities within the rights-of-way and will not be used to generate revenue to the City above such costs. The City may not require or accept in-kind services in lieu of any fee.
a.
A fee charged to recover the City's actual costs for an applicant's facilities work in the right-of-way including the costs of processing permits, inspections and administration of this Chapter, excluding legal fees relating to the interpretation or enforcement of the Chapter including all such appeals, a permit fee will be charged as determined by the City Engineer but shall not be greater than one hundred dollars ($100.00).
[Ord. No. 4.600 §VI, 9-12-2005]
A.
The City may, after reasonable notice and an opportunity to cure, revoke a right-of-way permit granted to a ROW user without a fee refund, if one (1) or more of the following occurs:
1.
A material violation of a provision of the right-of-way permit, including the violation of any provision of this Chapter or of any additional provisions of a specific 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 political subdivision or its citizens;
3.
A material misrepresentation of fact in the right-of-way permit application;
4.
A failure to complete excavation or work by the date specified in the right-of-way permit, unless a right-of-way permit extension is obtained or unless the failure to complete the excavation or work is due to reasons beyond the ROW user's control;
5.
A failure to correct, within the time specified by the City, excavation or work that does not conform to applicable national safety codes, industry construction standards or applicable City Code provisions or safety codes that are no more stringent than national safety codes or provisions, upon inspection and notification by the City of the faulty condition.
[Ord. No. 4.600 §VII, 9-12-2005]
A.
Oversight Of Facilities Work.
1.
Applicants shall comply with all City Codes and ordinances.
2.
Facilities work shall be subject to periodic inspection by the City.
3.
The City Engineer shall have full access to all portions of facilities work and may issue stop work orders and corrective orders to prevent unauthorized work. Such corrective or stop work orders shall state that work not authorized by the permit is being carried out, summarize the unauthorized work and provide a period of not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be ceased to protect the public safety, and may be delivered personally or by certified mail to the address listed on the application for permit or to the person in charge of the construction site at the time of delivery. Such orders may be enforced by equitable action in the Circuit Court of Platte County, Missouri, and if the City prevails in such case, the person involved in the facilities work shall be liable for all costs and expenses incurred by the City, including reasonable attorney's fees, in enforcing such orders in addition to any and all penalties established in this Chapter. Parties may, if both agree, have the right to have the matter resolved by mediation or binding arbitration pursuant to Section 67.1838, RSMo.
4.
Any person who engages in facilities work in the public rights-of-way and who has not received a valid permit from the City shall be subject to all requirements of this Chapter. Except in those instances where facilities work must be performed on an emergency basis, the City may, in its discretion, at any time until a permit is secured, order the facilities work ceased and do any of the following:
a.
Require such person to apply for a permit within thirty (30) days of receipt of a written notice from the City that a permit is required;
b.
Require such person to remove its property and restore the affected area to a condition satisfactory to the City; or
c.
Take any other action it is entitled to take under applicable law including, but not limited to, filing for and seeking damages for trespass.
5.
Records. Owners of facilities that maintain more than one thousand (1,000) lineal feet of facilities within the public rights-of-way shall keep complete and accurate maps and records of the location of their facilities. Applicants that maintain more than one thousand (1,000) lineal feet of facilities within the public rights-of-way shall, within twelve (12) months of the passage of this Chapter, file with the City Engineer a current map of those portions of the owner's/franchisee's system which lie within the public rights-of-way. Maps furnished to the City Engineer shall show the location of facilities and their relationship to existing street or right-of-way. The information shall be solely for use by the City, and no other person may seek to obtain or have access to such maps and/or records.
6.
Assignment of permit. The rights granted by this Chapter inure to the benefit of applicant. The rights shall not be assigned, transferred, sold or disposed of, in whole or in part, by voluntary sale, merger, consolidation or otherwise by force or involuntary sale without the expressed written notice to the City. Any such notice shall not be required for entities that are controlled by or are under common control with applicant.
7.
Termination of permit and removal of installations. Should any applicant fail to abide by the terms of a permit, the Board of Aldermen may, after thirty (30) days' written notice of breach or default, and after a public hearing in which applicant has been afforded due process, terminate a permit if applicant has failed to undertake reasonable steps to cure such default. Upon such termination, the City may order the removal of any of applicant's installations under this permit and if applicant should refuse, the City may remove such installations at applicant's expense.
B.
Construction Standards.
1.
The construction, operation, maintenance and repair of facilities shall be in accordance with applicable health, safety and construction codes adopted by the City.
2.
All facilities shall be installed and located with due regard for minimizing interference with the public, including the City and other owners of facilities of the rights-of-way.
3.
Before initiating construction on City streets and public rights-of-way, applicant will make all reasonable efforts to use existing infrastructure for new facilities (i.e., existing poles and conduit, etc.). However an applicant shall not place facilities where they will damage or interfere with the use or operation of previously installed facilities or obstruct or hinder the various utilities serving the residents and businesses in the City or their use of any public rights-of-way.
4.
Any contractor or subcontractor used for facilities work must be properly licensed under laws of the State and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as an applicant would have hereunder and shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with its permits and applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors, and shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor.
5.
Requirements concerning the restoration and maintenance of the public rights-of-way during and after construction of the facilities work shall conform to the Kansas City Chapter of American Public Works Association's Standard Specifications and Design Criteria as may be amended from time to time.
6.
The Standard Specifications may be deviated from in special situations where an alternative design is deemed, by the City Engineer, to be necessary or more appropriate under the circumstances to insure conformance with the performance standards underlying the Standard Specifications. The City Engineer shall notify facility owners and contractors of deviations or changes from the Standard Specifications at least fifteen (15) days prior to the implementation of the effected project.
C.
Restoration And Guarantee Of Work.
1.
The ROW user shall be liable for any damages to facilities due to excavation or facilities work performed prior to obtaining the location of all facilities in the area in which the excavation or facilities work is to be performed or for any damage to facilities that have been properly identified prior to excavation or work. The ROW user shall not make or attempt to make repairs, relocation or replacement of damaged or disturbed facilities without the approval of the owner of the facilities.
2.
The ROW user shall be responsible for removing said debris from the right-of-way. If the ROW user fails to remove debris from the right-of-way, the ROW user shall be responsible for damages to the City or its contractors resulting from such failure and shall indemnify the City and its contractors as provided herein and pay the costs for remedying such failure.
3.
In the event the ROW user severely disturbs or damages the root structure of any tree or landscaping in the right-of-way to the detriment of the public safety, survival of such tree or landscaping, the ROW user shall be required to remove and replace the landscaping or tree at the ROW user's cost. Further, in review of the ROW user's plan, the City Engineer, in his/her discretion, may require the ROW user to directionally bore in the right-of-way.
4.
After any excavation or work, the ROW user shall, at its expense, promptly restore all portions of the right-of-way to the same condition or better condition than it was prior to the excavation or work. If the ROW user fails to restore the right-of-way in the manner and to the condition required by the City Engineer or fails to satisfactorily and timely complete all restoration, the City, at its option, may perform its own restoration excavation or work and prosecute same to completion by contract or otherwise. The ROW user and its surety shall be liable to the City for its actual costs of such restoration, including the value of any time or overtime incurred through the labor of City employees, the value of the use of City equipment, and the cost of City materials used in the restoration project.
5.
In restoring the right-of-way, the ROW user shall guarantee its excavation or work and shall maintain it for a period of forty-eight (48) months or for the maximum period of time allowed by law, whichever is greater, following its completion. During said guarantee period the ROW user shall, upon notification from the City Engineer, correct all restoration excavation or work to the extent necessary using any method as required by the City Engineer. Said excavation or work shall be completed within a reasonable time not to exceed thirty (30) calendar days of the receipt of notice from the City Engineer (not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable). In the event the ROW user is required to perform new restoration pursuant to the foregoing guarantee, the City Engineer shall have the authority to extend the guarantee period for such new restoration for up to an additional forty-eight (48) months or other greater period allowed by law, from the date of the new restoration, if the City Engineer determines there was action by the ROW user not to comply with the conditions of the right-of-way permit and any restoration requirements. The guarantee period shall be applicable to failure of the pavement surface as well as failure below the pavement surface.
[Ord. No. 4.600 §VIII, 9-12-2005]
A.
Performance Bond.
1.
Prior to any facilities work in the public rights-of-way, an applicant shall establish in the City's favor a performance bond or other surety in the penal sum of two thousand dollars ($2,000.00), approved by the City Clerk and in proper form approved by the City Attorney. Owners of facilities that maintain more than one thousand (1,000) lineal feet of facilities within the public right-of-way and franchisees shall establish in the City's favor a performance bond or other surety in the penal sum of five thousand dollars ($5,000.00), approved by the City Clerk, and in proper form approved by the City Attorney. Differences in bond requirements, including provisions for self-insurance or provisions for a single continuing bond where facilities work is conducted by the same applicant under numerous permits, may be established by regulation based on the extent or nature of the facilities work, the past performance of the applicant and not based on the characteristics of the applicant.
In the event an applicant fails to complete the facilities work in a safe, timely and competent manner or fails to satisfy the guarantee of such work as provided herein, the City shall be entitled to recover, jointly and severally from the principal and surety of the bond, any damage or loss suffered by the City as a result plus a reasonable allowance for attorneys' fees.
2.
Upon completion of the facilities work to the satisfaction of the City Engineer, the City Engineer shall eliminate the bond or reduce its amount after such time appropriate to determine whether the work performance was satisfactory, which time shall be established by the City Engineer considering the nature of the work performed, and which may allow for reasonable bond amounts to remain to secure the guarantee requirement. In any event, the entire bond shall be released timely after the expiration of guarantee period; provided the ROW user has satisfied the guarantee requirements.
3.
A performance bond shall be issued in a form of surety acceptable to the City and shall contain an endorsement substantially as follows:
"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."
4.
Recovery by the City of any amounts under the performance bond does not limit an applicant's duty to indemnify the City in any way, nor shall such recovery relieve or limit an applicant of its obligations under a permit or reduce the amounts owed to the City other than by the amounts recovered by the City under the performance bond or in any respect prevent the City from exercising any other right or remedy it may have.
B.
Cost Recovery.
1.
In the event that an excavation is not refilled within a reasonable time after it is ready for refilling, the City Engineer shall notify the applicant making the excavation that if such excavation is not filled within four (4) days, it shall be filled by the City. The charge for the cost of such work shall be paid by the permit holder within ten (10) days after completed and no additional permit shall be issued to that person after that time, unless such charge has been paid.
2.
In the event that the applicant fails to backfill, repair or repave any excavations made within the public rights-of-way, the City shall, at its option, repair said cut with City employees forces or contract the repair to be made and charge the applicant for the full contract cost of repair. If the City makes the repair with City employees forces, the charges shall be based on the unit price paid on the most recent street improvement or pavement repair contract issued by the City Engineer.
3.
In the event the City incurs additional costs as a direct result of an unauthorized action or an inaction by any person and/or owner of facilities, the City shall have the right to recover from that person or owner any and all documentable costs incurred including, but not limited to, the identification of undocumented facilities, completion of improper facilities work, long-term structural damage, construction delay fees and penalties, fees paid to other agencies and any other documentable costs incurred by the City within the rights-of-way.
C.
Exemption. If a ROW user has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance or permitting non-compliance within the City, then the ROW user shall not be required to maintain a performance or maintenance bond but shall be deemed liable directly for payment under the same obligations as if a bond had been required.
D.
Penalties. For each substantial breach pursuant to Section 67.1836, RSMo., as to which the City has given notice to applicant as provided in this Chapter, penalties may be chargeable to the applicant at a rate not exceeding one hundred dollars ($100.00) per day for so long as the violation continues.
[Ord. No. 4.600 §IX, 9-12-2005]
A.
Whenever the City shall in its exercise of the public interest request of the ROW user the relocation or reinstallation of any of its facilities, ROW user shall forthwith remove, relocate or reinstall any such property as may be reasonably necessary to meet the request and the cost of such relocation, removal or reinstallation of the facilities shall be the exclusive obligation of said ROW user without expense to the City. ROW user shall upon request of any other person requesting relocation of facilities and holding a validly issued building or moving permit of the City and within seven (7) days prior to the date upon which said person intends to exercise its rights under said permit, ROW user shall thereupon temporarily raise, lower or relocate its wires or other facilities as may be required for the person to exercise the rights under the permit, and ROW user may require such permit holder to make payment in advance for any expenses incurred by said ROW user pursuant to said person's request.
B.
If any facilities are not relocated in accordance with this Section and within the reasonable time frames required by the City, the City or its contractors may relocate the facilities and the ROW user and its surety shall be liable to the City for any and all costs incurred by the City.
[Ord. No. 4.600 §X, 9-12-2005]
A.
Compliance With Laws. Each applicant shall comply with all applicable Federal and State laws as well as City ordinances, resolutions, rules and regulations heretofore and hereafter adopted or established.
B.
Applicant Subject To Other Laws, Police Power.
1.
An applicant shall at all times be subject to all lawful exercise of the Police powers of the City including, but not limited to, all powers regarding zoning, supervision of the restoration of the right-of-way and control of public rights-of-way.
2.
No action or omission of the City shall operate as a future waiver of any rights of the City under this Chapter.
3.
Except where rights are expressly granted or waived by a permit, they are reserved, whether or not expressly enumerated. This Chapter may be amended from time to time and in no event shall this Chapter be considered a contract between the City and an applicant such that the City would be prohibited from amending any provision hereof.
C.
Construction Of Applicable Federal, State And City Law. This Chapter shall be construed in a manner consistent with all applicable Federal, State and local laws. Notwithstanding any other provisions of this Chapter 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 or exceed 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. The failure of the ROW user to comply with any applicable law or regulation may result in a forfeiture of any permit or authorization granted in accordance with this Chapter.
D.
Indemnification. As a condition of use of the rights-of-way, ROW user at its sole cost and expense shall indemnify, protect, defend (with counsel acceptable to the City) and hold harmless the City, its elected officials, officers, employees and agents from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all costs and expenses of any kind including, without limitation, reasonable attorney's fees and costs of defense arising, directly or indirectly, in whole or in part, out of the fact that the City approved an agreement or franchise with ROW user, the rights granted to ROW user or the activities performed or failed to be performed by ROW user under any approval or by use of the rights-of-way or otherwise, except to the extent arising from or caused by the sole or gross negligence or willful misconduct of the City, its elected officials, officers, employees, agents or contractors. This indemnification shall survive the expiration or termination of any agreement or use of the rights-of-way for a period of five (5) years after the effective date of expiration or termination.
E.
Rights And Remedies.
1.
The exercise of one (1) remedy under this Chapter shall not foreclose use of another, nor shall the exercise of a remedy or the payment of damages or penalties relieve an applicant of its obligations to comply with its permits. Remedies may be used alone or in combination; in addition, the City may exercise any rights it has at law or equity.
2.
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provisions of this Chapter.
3.
No applicant shall be relieved of its obligation to comply with any of the provisions of this Chapter by reason of any failure of the City to enforce prompt compliance.
4.
The City reserves unto itself every right and power which is required to be reserved by a provision of any ordinance under any agreement, franchise, permit or other authorization granted under this Chapter and as may be authorized by Sections 67.1830 — 67.1846, RSMo., and other authority applicable to regulation of the use of the rights-of-way.
F.
Advertising, Signs Or Extraneous Markings. A ROW user shall not place or cause to be placed any sort of signs, advertisements or other extraneous markings, whether relating to ROW user or any other person or entity on the public right-of-way, except such necessary minimal markings as approved by the City as are reasonably 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.
G.
Tree Trimming. Unless otherwise approved in writing by the City or as part of an approved tree trimming plan or in the attachment, installation, removal, reattachment, reinstallation, relocation or replacement or otherwise of the facilities, ROW user shall neither remove, cut, nor damage any trees or their roots in and along the streets, alleys and public places of the City. Tree trimming and pruning may be permitted to occur only after prior written notice to the City.
H.
Antennae And Wireless Communications Equipment. Towers, antennae, antennae structures and ground-mounted wireless communications equipment shall not be placed in the right-of-way except as may be permitted by the City's Communication Tower Ordinance (Section 405.310 of this Code) and any other regulations relating to placement of wireless communications antennae, structures and towers and only with prior agreement approved by the Board establishing such conditions as to the design, number, location and compensation or reimbursement of costs, if any, and other reasonable considerations. All such decisions shall be made on a competitively neutral and non-discriminatory manner.
I.
Taxes. ROW users shall be responsible for all applicable business license taxes, sales taxes, occupation taxes, franchise fees or taxes, property taxes, other similar taxes, permit fees and other right-of-way management costs.
J.
Force Majeure. An applicant shall not be deemed in violation of provisions of this Chapter where performance was rendered impossible by war or riots, civil disturbances, floods or other natural catastrophes beyond the applicant's control, and a permit shall not be revoked or an applicant penalized for such non-compliance, provided that the applicant takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with its permit without unduly endangering the health, safety and integrity of the applicant's employees or property, the public, public rights-of-way, public property or private property.
K.
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter or payment is required under this Chapter or any permit, and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the first (1st) and include the last day of the prescribed or fixed period of time.
L.
Severability. If any term, condition or provision of this Chapter shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision that has been held invalid is no longer invalid, said provisions shall thereupon return to full force and effect without further action by the City and shall thereafter be binding on the applicant and the City.
M.
Eminent Domain. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, any right the City may have to acquire the property of the applicant through the exercise of the power of eminent domain.
N.
Standards Applicable To City. Any standards in this Chapter relating to facilities work shall be fully applicable to work performance by the City and its departments.
O.
Rights In The Event Of Abandonment. In the event that the Governing Body of the City closes or abandons any right-of-way, which contains the facilities of the applicant installed hereunder, any land contained in such closed or abandoned right-of-way shall be subject to the rights of the applicant.
P.
Savings Clause. Nothing contained herein shall in any manner be deemed or construed to alter, modify, supersede, supplement or otherwise nullify any other ordinances of the City or requirements thereof, whether or not relating to in any manner connected with the subject written hereof, unless expressly provided otherwise herein or hereafter.