[R.O. 1991 § 510.010; Ord. No. 2897-14 § 1, 7-1-2014]
A.
It shall be the policy of the City to authorize
use of the rights-of-way in a manner that minimizes interference to
the public use and minimizes the burden on the rights-of-way physically
and aesthetically to the full extent permitted by law. Any use of
the rights-of-way by any person shall be subject to the terms and
conditions hereof, in addition to all applicable Federal, State or
local requirements, and nothing herein shall be enforced or interpreted
to contravene any superseding law, including but not limited to Section
67.1830 et seq., RSMo., to the extent applicable to any given circumstance.
B.
The right granted to a person to use the
rights-of-way is limited to the use that the person has filed with
the City and approved in accordance with this Chapter. These rights
shall grant non-exclusive use only to that person except where otherwise
provided herein or when expressly authorized by the City.
[R.O. 1991 § 510.015; Ord. No. 2897-14 § 1, 7-1-2014; Ord.
No. 3163-22, 10-18-2022]
The following definitions shall apply
to this Chapter, except that where the definitions set forth in Section
67.1830, RSMo., as may be amended, are required by law to apply to
specific uses of the rights-of-way, such definitions shall apply to
such circumstances.
Those facilities owned by a ROW user that are not in use
or cannot be utilized by the owner in the future.
That fee charged by the City to administer all aspects of
rights-of-way management to recover its cost of this management.
Any person required to apply for a rights-of-way permit.
The City of Smithville, Missouri, a municipal corporation
and any duly authorized representative.
The City Administrator, Smithville, Missouri, or his or her
authorized designee.
The City of Smithville design and constructions standards adopted pursuant to Section 520.020, on file with the City Clerk as of the date of this Chapter, and incorporated herein, and as may be amended from time to time by the authority of the City Administrator establishing such specifications and procedures consistent with the requirements and purposes of this Chapter.
Includes construct, install, erect, build, affix or otherwise
place any fixed structure or object, in, on, under, through or above
the rights-of-way.
To surround tightly or incorporate.
Any incident that requires immediate intrusion and work within
the rights-of-way to restore service to a user.
Any removal of the surface or subsurface earth or boring
or tunneling activity within the public rights-of-way.
All/any lines, pipes, irrigation systems, wires, cables,
conduit facilities, poles, towers, vaults, pedestals, boxes, or other
equipment owned or controlled by an entity other than the City.
A service provider owning or possessing facilities in the
rights-of-way.
The Federal Communications Commission.
The Mayor and the Board of Aldermen of the City of Smithville,
Missouri.
Any subdivision of the governments within the United States
of America.
The improved surface of the public way with concrete, asphalt,
aggregate or other treated materials.
An individual, person or body natural or corporate.
The Missouri Public Service Commission.
Any easement for utilities, access, or other use dedicated
to the City or in the name of the City irrespective of whether the
easement is held in trust by the City for private and public users
and regardless of whether private utilities or others in addition
to or other than the City are actually using the easements.
Any public project undertaken by the City for the public
good.
Any real property owned by the City not used as rights-of-way
or considered to be rights-of-way.
The temporary work necessary to make the rights-of-way usable
for the public.
A person providing service within the City that does not
have its own facilities in the rights-of-way, but instead uses the
rights-of-way by interconnecting with or using the network elements
of another ROW user utilizing the rights-of-way, and/or by leasing
excess capacity from a facility-based service provider.
Returning the rights-of-way surface to its original condition,
or better.
The area on, below or above a public roadway, highway, street
or alleyway in which the City has an ownership interest, and including
such adjacent area of such public ways within such ownership interest
as made available by the City for rights-of-way use herein, but not
including:
Easements obtained by utilities 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 or transmission, collection or exchange
of communications, information, substances, data, or electronic or
electrical current or impulses utilized by a utility owned or operated
by a governmental entity pursuant to Chapter 91, RSMo., or pursuant
to a charter form of government.
Easements held by the City for sewer, pedestrian access, stormwater,
waterline, or drainage. Access to any such easement shall require
a separate agreement with the City.
The authorization to make excavations or perform work for
the construction, installation, repair or maintenance of any type
of facility within the rights-of-way.
Such persons and entities maintaining, constructing or installing
facilities in the public rights-of-way of the City unless otherwise
expressly exempted by law. The term shall not include the City; provided
that the City shall nevertheless comply with all such requirements
applicable to ROW users to the extent such compliance is otherwise
required by State or Federal law.
That function provided to property adjoining the public rights-of-way
from a service provider.
Construction, alteration, maintenance,
installation, storage, or location of facilities installed below,
on or above ground in the public rights-of-way, other than excavation,
that also:
Causes or threatens to cause any
obstruction or interference to any vehicular or pedestrian traffic
or traffic lane in the rights-of-way;
Involves temporary or permanent storage
of materials or equipment on rights-of-way;
Causes or reasonably may cause damage
to any public improvement within the rights-of-way; or
Causes removal, replacement or alteration
to any safety feature or requirement within the rights-of-way, including
but not limited to removal of manhole covers, altering lighting, traffic
signage or signals, placement or removal of traffic barricades, etc.
[R.O. 1991 § 510.020; Ord. No. 2897-14 § 1, 7-1-2014]
The City Administrator is the principal
City Official responsible for administration of rights-of-way permits
for work and excavations made in the rights-of-way. The City Administrator
may delegate any or all of the duties hereunder.
[Ord. No. 3163-22, 10-18-2022]
Unless otherwise required by law, nothing in Chapter 510 shall exempt any franchisee or permit holder under Chapter 510, Rights-Of-Way Management, with complying with all applicable provisions of Chapter 610, Business Regulations, or any other applicable ordinance. Unless otherwise required by law, compliance with Chapter 610, Business Regulations, shall be in addition to any other requirement of Chapter 510, Rights-Of-Way Management.
[R.O. 1991 § 510.025; Ord. No. 2897-14 § 1, 7-1-2014; Ord.
No. 3163-22, 10-18-2022]
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
Governing Body 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 providers
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 required
from the City in conformance with all applicable franchise procedures
for any Row user seeking to use the rights-of-way for purposes of
providing or distribution of electricity, gas, water, steam, lighting,
or sewer public utility service in the City, except where otherwise
provided by law. Such franchise may be granted only after satisfaction
of all applicable procedural or substantive requirements established
by City ordinances or other law.
2.
ROW Agreement. A ROW agreement with the City shall be required for all Row users not set forth in Subsection (A)(1), irrespective of any State licensing, franchise or certificate that may also be held by the Row user, except as otherwise required herein or by law. Such agreements shall conform to all applicable law, but shall not be subject to procedures applicable to franchises, and the City may, if appropriate, approve form agreements that may be executed by the Mayor after approval by the Board of Aldermen.
3.
Incidental Uses. Incidental uses
of the public rights-of-way may be permitted without a franchise or
ROW agreement pursuant to a rights-of-way permit issued by the City
Administrator. The City Administrator may establish such application,
requirements and conditions applicable to such uses consistent with
the purposes of this Chapter or as otherwise established by law.
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. The granting of an agreement or franchise shall
not be deemed to create any property interest of any kind in favor
of the ROW user.
C.
Lease Required For Public Lands. Unless
otherwise provided, use or installation of any facilities in, on or
over public lands of the City not constituting rights-of-way shall
be permitted only if a lease agreement or other separate written approval
has been negotiated and approved by the City with such reasonable
terms and conditions as the City may require.
D.
Transferability. Except as provided in
this Chapter or as otherwise required by law, no franchise agreement,
or permit may be transferred or subcontracted to any person without
the written application to and consent of the City based on the requirements
and policies of this Chapter. Any such transfer or subcontract, even
if consented to by the City, will not relieve the franchisee or permit
holder from all the responsibilities (including insurance and bond)
of the franchisee or permit holder. The City shall not unreasonably
withhold its consent to the transfer or subcontract as provided herein,
upon the compliance with this Chapter, or as otherwise required by
law, but any costs incurred by the City shall be paid by the applicant.
E.
Application For Franchise Or Agreement
Required.
1.
Application. An application for franchise
or ROW agreement shall be presented to the City Administrator in writing
and shall include all such information as is required by this Section.
The ROW user shall be responsible for accurately maintaining the information
in the application during the term of any franchise or agreement and
shall be responsible for all costs incurred by the City due to the
failure to provide or maintain as accurate any application information
required herein.
2.
Application Fee. An application fee
for review, documentation and approval of such agreement or franchise
shall be established by the City Administrator to recover any actual
costs anticipated and incurred by the City in reviewing, documenting,
or negotiating such agreement or franchise, including reasonable legal
fees, provided that no costs, if any, of litigation or interpretation
of Section 67.1830 or 67.1832, RSMo., shall be included if such inclusion
is prohibited by law as to that applicant. If the actual costs are
thereafter determined to be less than the application fee, such amount
shall be returned to the applicant after written request therefrom;
if the actual costs reasonably exceed the application fee, the applicant
shall, after written notice from the City, pay such additional amount
prior to issuance by the City of any final approval. Nothing herein
shall be construed to prohibit the City from also charging reasonable
compensation for use of the public rights-of-way where such a fee
is not contrary to applicable law.
3.
Application Form. A ROW user shall
submit a completed application for franchise or ROW agreement on such
form provided by the City, which shall include information necessary
to determine compliance with this Chapter.
4.
Approval Process. After submission
by the ROW user of a duly executed and completed application and application
fee, and executed franchise or ROW agreement as may be provided by
the City Administrator, or as modified by the City Administrator in
review of the specific circumstances of the application, all in conformity
with the requirements of this Chapter and all applicable law, the
City Administrator shall submit such franchise or agreement to the
Board of Aldermen for approval. Upon determining compliance with this
Chapter, the Board of Aldermen shall authorize execution of the franchise
or agreement (or a modified agreement otherwise acceptable to the
City consistent with the purposes of this Chapter), and such executed
franchise or agreement shall constitute consent to use the public
rights-of-way; provided that nothing herein shall preclude the rejection
or modification of any executed franchise or agreement submitted to
the City to the extent such applicable law does not prohibit such
rejection or modification, including where necessary to reasonably
and in a uniform or non-discriminatory manner reflect the distinct
engineering, construction, operation, maintenance, public work or
safety requirements applicable to the applicant.
[R.O. 1991 § 510.030; Ord. No. 2897-14 § 1, 7-1-2014]
A.
No person shall make an excavation or perform
work within the rights-of-way without first obtaining a rights-of-way
permit from the City Administrator, provided, that in case of emergency
which requires immediate attention to remedy defects, in order to
prevent loss or damage to persons or property, it shall be sufficient
that the person making such excavation or performing work in streets,
alleys or sidewalks obtain a permit as soon as possible and may proceed
without a permit when such permit cannot be obtained before starting
such excavation or work. The person securing a permit to make an excavation
or perform work in any street, alley or sidewalk is hereby deemed
to be the person, or his/her legal representative, making such excavation
or performing such work. All rights-of-way permits shall expire after
sixty (60) days from the date of issuance.
B.
All persons shall be subject to all rules,
regulations, policies, resolutions, and ordinances now or hereafter
adopted or promulgated by the City in the reasonable exercise of its
police power and are subject to all applicable laws, order, rules
and regulations adopted by governmental entities now or hereafter
having jurisdiction. In addition, the persons shall be subject to
all technical specifications, design criteria, policies, resolutions
and ordinances now or hereafter adopted or promulgated by the City
in the reasonable exercise of its police power relating to permits
and fees, sidewalk and pavement cuts, utility location, construction
coordination, surface restoration, and other requirements on the use
of the rights-of-way. All persons obtaining a permit shall provide
the City Administrator certificates of insurance showing proof of
liability coverage for personal injury and property damage, as required
herein. Any person found to be working without providing for required
safety and traffic control will be directed to stop work until the
appropriate measures are implemented in accordance with the current
edition of the Manual on Uniform Traffic Control Devices.
[R.O. 1991 § 510.035; Ord. No. 2897-14 § 1, 7-1-2014]
A.
All excavations and work shall comply with
each and every requirement set forth in the City specifications.
B.
The City Administrator may impose reasonable
conditions upon the issuance of a rights-of-way permit and the performance
of the ROW user in order to protect the public health, safety and
welfare, to ensure the structural integrity of the rights-of-way,
to protect the property and safety of other users of the rights-of-way,
and to minimize the disruption and inconvenience to the traveling
public. Each rights-of-way permit shall be deemed to incorporate the
provisions of this Chapter as permit conditions.
C.
When a rights-of-way permit is requested for purposes of installing additional facilities and the performance and maintenance bonds for additional facilities is reasonably determined to be insufficient, the posting of an additional or larger performance or maintenance bond for the additional facilities may be required by the City Administrator, except as otherwise provided in Section 510.065 hereof.
D.
A ROW user shall perform all excavations
or work in full accord with any and all applicable engineering codes
adopted or approved by the City and in accordance with applicable
Statutes of the State of Missouri, and the rules and regulations of
the Commission or any other local, State or Federal agency having
jurisdiction over the parties. A ROW user shall perform all excavations
or work in conformance with all applicable codes and established rules
and regulations and shall be responsible for all excavations or work
done in the rights-of-way pursuant to its rights-of-way permit, regardless
of by whom the excavation or work is done. A ROW user shall be responsible
for all reasonable costs borne by the City that are directly associated
with the ROW user's permit or use of the rights-of-way thereunder.
E.
Except in cases of an emergency or with
approval of the City Administrator, no rights-of-way excavation or
work may be done in violation of a stop-work order issued by the City
Administrator if in his or her determination conditions are unreasonable
for such excavation or work based on standard engineering and construction
practices.
F.
A ROW user shall not disrupt rights-of-way
such that the natural free and clear passage of water through the
gutters or other waterways is interfered with. No person may park
private vehicles within or next to the work or excavation area, except
for such areas which may be designated and marked as safe areas for
vehicle parking in accordance with an approved traffic control plan.
G.
If excavation or work is being done for
the ROW user by another person, a subcontractor or otherwise, the
ROW user shall be responsible for ensuring that the excavation or
work of said person is performed consistent with its rights-of-way
permit and applicable law and shall be responsible for promptly correcting
acts or omissions by said person.
H.
The City Administrator may establish in
the rights-of-way permit limitations on the amount of excavation or
work which may occur at one time and the amount of rights-of-way which
may be obstructed during construction.
I.
The ROW user shall, in the performance
of any excavation or work required for the installation, repair, maintenance,
relocation and/or removal of any of its facilities, limit all excavations
or work to that necessary for efficient operation.
J.
The ROW user shall not permit excavation
or work to remain open longer than is necessary to complete the repair
or installation, and in no event may excavation or work remain open
beyond the expiration of the rights-of-way permit or any approved
extension. Any excavations left open overnight on any thoroughfare
or collector-type street shall be securely covered. Unless otherwise
approved by the City Administrator in writing, all excavations shall
be filled in or covered at the end of each working day. The ROW user
assumes the sole responsibility for maintaining proper barricades,
plates, safety fencing and/or lights as required from the time of
opening of the excavation until the excavation is surfaced and opened
for travel.
K.
Non-emergency excavation or work on arterial
and collector streets may not be performed during the hours of 7:00
A.M. to 8:30 A.M. and 4:00 P.M. to 6:00 P.M., in order to minimize
disruption of traffic flow. The ROW user shall perform excavation
or work on the rights-of-way at such times that will allow the least
interference with the normal flow of traffic and the peace and quiet
of the neighborhood, and shall not work between the hours of 10:00
P.M. and 7:00 A.M. Whenever there is an excavation or work by the
ROW user, the ROW user shall be responsible for providing adequate
traffic control and signage to the surrounding area as determined
by the City Administrator of the City. In the event the excavation
or work is not completed in a reasonable period of time, the ROW user
may be liable for actual damages to the City for delay caused by the
ROW user pursuant to this Chapter.
L.
The City Administrator may limit the number
of conduits or other facilities that may be installed by each ROW
user based on the reasonable needs to ensure that no one ROW user
may unreasonably consume a disproportionate amount of the available
rights-of-way to deter competition or deprive the public or others
of the reasonable use of the rights-of-way.
M.
All underground mains, their service lines
with ancillary appurtenances thereto shall, wherever practicable,
be placed between the curb or pavement edge and sidewalk line in the
section of the street known as the "parkway." Where the pavement and
sidewalk occupy the entire street, the underground utilities shall
be located under the sidewalk.
N.
The ROW user shall notify the office of
the City Administrator upon completion of the excavation or work authorized
by the rights-of-way permit.
O.
Every person who obtains a rights-of-way
permit and makes an excavation within the rights-of-way shall guarantee
for a period of four (4) years the restoration of the rights-of-way
in the area where such person conducted an excavation and performed
the restoration. Such person shall guarantee the restoration of the
rights-of-way against sagging, buckling, deterioration, or other premature
failures of the restoration.
P.
The City Administrator, upon the review
and approval of a plan and details for trimming trees in the rights-of-way,
may grant permission by permit to any person to trim trees upon and
overhanging the rights-of-way so as to prevent the branches of such
trees from coming in contact with facilities of a ROW user. In the
event the person severely disturbs or damages any tree in the rights-of-way
to the detriment of the health and safety of the tree, the person
will be required to remove and replace a tree of like size at the
person's cost. The location, size, and species of any replacement
tree shall be as approved by the City Administrator, unless the City
Administrator approves an equivalent monetary payment in lieu of replanting.
In reviewing any permit application, the City Administrator may require
the Applicant to directionally bore around or otherwise avoid disturbance
to any tree, existing facility, or other protected area in the rights-of-way.
Q.
Upon the approved request of any party
having satisfied City procedure and ordinances, a ROW user shall remove,
raise, or lower its facilities temporarily to permit the moving of
houses or other structures. Except when required for a City project,
the expense of such temporary removal, raising or lowering shall be
paid by the party requesting the same, and the ROW user may require
such payment in advance. The ROW user must be given not less than
fifteen (15) days' written notice from the party detailing the time,
and location of the moving operations, and not less than twenty-four
(24) hours' advance notice from the party advising of the actual operation.
[R.O. 1991 § 510.040; Ord. No. 2897-14 § 1, 7-1-2014]
Rights-of-way permits issued shall
be made available by the ROW user at all times at the indicated work
site and shall be available for inspection by the City Administrator,
other City employees and the public.
[Ord. No. 3163-22, 10-18-2022]
Every franchisee or permit holder performing any work in the
ROW shall always have someone present at the site of the work who
is capable of reasonably and thoroughly communicating with the City
and who is authorized to do so on behalf of the franchisee or permit
holder.
[Ord. No. 3163-22, 10-18-2022]
Every franchisee or permit holder or other person performing
any work in the ROW shall indemnify and save the City harmless from
all liability and costs, including attorney's fees claimed by any
person because of the work. Every franchisee or permit holder or other
person shall be responsible for all reasonable damages incurred by
the City or any third persons because of the work.
[R.O. 1991 § 510.045; Ord. No. 2897-14 § 1, 7-1-2014]
A.
The City Administrator may deny an application
for a rights-of-way permit if:
1.
The ROW user, or any persons acting
on the behalf of the ROW user, fails to provide all the necessary
information requested by the City for managing the public rights-of-way.
2.
The ROW user, or any persons acting
on the 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 the behalf of the ROW user, including
contractors or subcontractors, that have failed to return the public
rights-of-way to their previous condition under a previous rights-of-way
permit.
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 rights-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 Public Service Commission, such denial shall not
interfere with a ROW user's right of eminent domain of private property,
and such denials shall only be imposed on a competitively neutral
and non-discriminatory basis. In determining whether denial of a rights-of-way
permit application is necessary to protect the public health and safety,
the City Administrator may consider one (1) or more of the following
factors:
a.
The extent to which the rights-of-way
space where the rights-of-way permit is sought is available, including
the consideration of competing demands for the particular space in
the rights-of-way, or other general conditions of the rights-of-way.
b.
The applicability of any ordinance,
Code provision, or other regulations that affect the location of facilities
in the rights-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 rights-of-way, including whether the issuance
of a rights-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 violation, unsafe conditions, or damage
or threatened harm to the rights-of-way or public that would constitute
a lawful basis for revocation of a permit.
[R.O. 1991 § 510.050; Ord. No. 2897-14 § 1, 7-1-2014]
Unless otherwise provided by law,
a ROW user shall submit a deposit with the City Administrator sufficient
in amount to ensure payment for the proper repair of such excavation
or work in accord with the terms of this Code and other City ordinances
and to insure and protect the City from all damage that may arise
from such excavations or work prior to acceptance by the City, after
proper backfilling. Such deposits shall be returned one hundred eighty
(180) days after an excavation has been backfilled and after an inspector
has reported the excavation or work to have been properly repaired.
Any party claiming exemption from the requirements of this Section
shall, prior to the subject excavation or work, so state in writing
to the City, setting forth the factual and legal basis for such exemption
in verified form.
[R.O. 1991 § 510.055; Ord. No. 2897-14 § 1, 7-1-2014]
Every person required to obtain a
rights-of-way permit shall pay a fee to the City for such permit in
accordance with the fee schedule on file with the City Administrator
to reimburse the City for its actual costs incurred and anticipated
from the permit, inspections and applicant's use of the rights-of-way,
and including the City's rights-of-way management costs and as may
otherwise be permitted by law. Any person making a street cut before
obtaining a permit shall pay double the normal permit fee, except
for emergencies, in addition to any other violation penalty as may
be imposed under this Chapter.
[R.O. 1991 § 510.060; Ord. No. 2897-14 § 1, 7-1-2014]
Where an application is made for
a rights-of-way permit for a ROW user to install or repair its facilities,
the applicant shall submit a map or plat of where the work is to take
place. Such plat or map shall be specific as to location and depth
of the work, as to street address or other location. For excavations
or work involving a street or curb, a traffic control plan shall be
required and approved by the City Administrator before beginning work.
[R.O. 1991 § 510.065; Ord. No. 2897-14 § 1, 7-1-2014]
A.
Except as provided in this Section, each
ROW user shall provide, at its sole expense, and maintain during the
term of an agreement or franchise, commercial general liability insurance
with a reputable, qualified, and financially sound company licensed
to do business in the State of Missouri, and unless otherwise approved
by the City, with a rating by Best of not less than "A," that shall
protect the ROW user, the City, and the City's officials, officers,
and employees from claims which may arise from operations under an
agreement or franchise, whether such operations are by the ROW user,
its officers, City Administrators, employees and agents, or any subcontractors
of the ROW user. This liability insurance shall include, but shall
not be limited to, protection against claims arising from bodily and
personal injury and damage to property, resulting from all ROW user
operations, products, services or use of automobiles, or construction
equipment. The amount of insurance for single limit coverage applying
to bodily and personal injury and property damage shall be at least
two million five hundred thousand dollars ($2,500,000.00), but in
no event less than the individual and combined sovereign immunity
limits established by Section 537.610, RSMo., for political subdivisions;
provided that nothing herein shall be deemed to waive the City's sovereign
immunity. An endorsement shall be provided which states that the City
is listed as an additional insured and stating that the policy shall
not be cancelled or materially modified so as to be out of compliance
with the requirements of this Section, or not renewed without thirty
(30) days' advance written notice of such event being given to the
City Administrator. If the person is self-insured, it shall provide
the City proof of compliance regarding its ability to self-insure
and proof of its ability to provide coverage in the above amounts.
The insurance requirements in this Section or otherwise shall not
apply to a ROW user to the extent and for such period during an agreement
or franchise as the ROW user is exempted from such requirements pursuant
to Section 67.1830(6)(a), RSMo., and has on file with the City Clerk
an affidavit certifying that the ROW user has twenty-five million
dollars ($25,000,000.00) in net assets and is otherwise therefore
so exempted unless otherwise provided by agreement or franchise.
B.
The City reserves the right to waive any
and all requirements under this Section when deemed to be in the public
interest.
C.
Except as otherwise may be required by
law for ROW users who have on file with the Deputy City Clerk an affidavit
certifying that the ROW user has twenty-five million dollars ($25,000,000.00)
in net assets and is otherwise therefore exempted, a person shall
at all times during the term of a rights-of-way permit, and for four
(4) years thereafter, maintain a performance and maintenance bond
in a form approved by the City Attorney. The amount of the bond will
be five thousand dollars ($5,000) or the value of the restoration
as determined by the City Administrator, whichever is greater, for
a term consistent with the term of the permit plus four (4) additional
years, conditioned upon the person's faithful performance of the provisions,
terms and conditions conferred by this Chapter. Unless otherwise established
by the permit, an annual bond in an amount of fifty thousand dollars
($50,000) automatically renewed yearly during this period shall satisfy
the requirement of this Section. In the event the City shall exercise
its right to revoke the permit as granted herein, then the City shall
be entitled to recover under the terms of said bond the full amount
of any loss occasioned.
D.
A copy of the liability insurance certificate
and performance and maintenance bond must be on file with the Deputy
City Clerk.
[R.O. 1991 § 510.070; Ord. No. 2897-14 § 1, 7-1-2014]
A.
A ROW user shall promptly remove, relocate
or adjust any facilities located in the rights-of-way or in public
easements as directed by the City for a public improvement or as necessary
to eliminate a threat to public safety. Such removal, relocation or
adjustment shall be performed by the ROW user at the ROW user's sole
expense without expense to the City, its employees, agents, or authorized
contractors and shall be specifically subject to rules, regulations
and schedules of the City pertaining to such. The ROW user shall proceed
with the removal, relocation, or adjustment of facilities with due
diligence upon notice by the City to begin removal, relocation, or
adjustment. Where the ROW user facilities are located in whole or
in part in private easements, the ROW user shall promptly relocate
the facilities if the City has agreed to compensate the ROW user,
through the condemnation, purchase process, or other reasonable means
for the cost of relocation of the ROW user's facilities.
B.
The City shall provide the ROW user with
written notice of required relocations or adjustments, the anticipated
bid letting date, if any, of the public improvement, and notice of
the deadline for completion of the relocations or adjustments. The
ROW user shall respond within ten (10) days with any conflicts and
a proposed construction schedule for relocation to be completed in
not more than sixty (60) days from date of the notice to the ROW user,
unless such other schedule is requested and reasonably approved by
the City Administrator. If facilities cannot be fully relocated within
the rights-of-way, the ROW user shall be responsible at its own cost
to obtain alternative locations to timely relocate its facilities.
C.
If any facilities are not relocated in
accordance with this Section, the City or its contractors may relocate
the facilities after notice to the ROW user. The ROW user and its
surety shall be liable to the City for any and all costs incurred
by the City. In the event the ROW user is required to move its facilities
in accordance with this Section, any ordinary rights-of-way permit
fee shall be waived. Failure to comply with the relocation schedule
set by the City Administrator shall also subject the ROW user to penalties
as provided for violation of this Chapter.
[R.O. 1991 § 510.075; Ord. No. 2897-14 § 1, 7-1-2014]
The City retains the right to vacate
any rights-of-way within the City. The City may condition vacation
of its rights-of-way on granting and recording of an acceptable easement
authorizing the City to use the vacated area, or a portion thereof,
for specific purposes as may be deemed appropriate in the public interest.
The City may also condition such vacation on payment of any relocation
costs that may result from such vacation. In the event that the vacation
of rights-of-way requires relocation of facilities of a ROW user,
such user shall bear all costs of relocation or removal of its facilities
unless otherwise provided by the party initiating the vacation. In
no event shall the City be obligated to pay for relocation costs due
to a vacation of right-of-way.
[R.O. 1991 § 510.080; Ord. No. 2897-14 § 1, 7-1-2014]
A.
A person owning abandoned facilities in
the rights-of-way must remove its facilities and replace or restore
any damage or disturbance caused by the removal at its own expense.
The City Administrator may allow underground facilities or portions
thereof to remain in place if the City Administrator determines that
it is in the best interest of public safety to do so.
B.
At such time, the City may take ownership
and responsibility of such vacated facilities left in place; or the
person shall provide information satisfactory to the City that such
person's obligations for its facilities in the rights-of-way have
been lawfully assumed by another authorized entity; or submit to the
City a proposal and instruments for transferring ownership of its
facilities to the City. If the person proceeds under this Section,
the City may, at its option, purchase the equipment, require the person,
at its own expense, to remove it, or require the person to post a
bond in an amount sufficient to reimburse the City for reasonable
anticipated costs to be incurred to remove the facilities.
C.
Facilities of a person who fails to comply
with this Section, and whose facilities remain unused for two (2)
years, shall be deemed to be abandoned after the City has made a good
faith effort to contact the person, unless the City receives confirmation
that the person intends to use the facilities.
D.
Abandoned facilities are deemed to be a
nuisance. The City may exercise any remedies or rights it has at law
or in equity, including, but not limited to:
[R.O. 1991 § 510.085; Ord. No. 2897-14 § 1, 7-1-2014]
A.
The City may, after reasonable notice and
an opportunity to cure, revoke a rights-of-way permit granted to a
ROW user, without a fee refund, if one or more of the following occurs:
1.
A material violation of a provision
of this Chapter or a rights-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 rights-of-way permit, or the perpetration
or attempt to perpetrate any fraud or deceit upon the City or its
citizens;
3.
A material misrepresentation of fact
in the rights-of-way permit application;
4.
A failure to complete excavation
or work by the date specified in the rights-of-way permit, unless
a rights-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.
B.
If a rights-of-way permit is revoked, the
ROW user shall also reimburse the City for the City's reasonable costs,
including administrative costs, restoration costs and the costs of
collection and reasonable attorneys' fees incurred in connection with
such revocation.
[R.O. 1991 § 510.090; Ord. No. 2897-14 § 1, 7-1-2014]
Unless otherwise provided herein
or by any other governing ordinance or law, any person aggrieved by
a decision, fee or requirement established or made pursuant to this
Chapter shall, prior to seeking any judicial or statutory relief,
if any, file a written appeal of any such decision, fee or requirement
with the Board of Aldermen within fifteen (15) days of such decision
or imposition of such fee or requirement, specifying this provision
and including specific details of the alleged claim or grievance,
and an evidentiary hearing shall be held on such appeal by the Board
of Aldermen or its designee to render a final decision. Nothing herein
shall deny or preclude any additional applicable appeal remedy that
may be granted by Federal or State law after such final decision.
[R.O. 1991 § 510.095; Ord. No. 2897-14 § 1, 7-1-2014]
In addition to any other penalties and remedies for violations that may exist in law or equity, any person that violates any provision of this Chapter shall be deemed to have committed an offense punishable as set forth in Section 100.220 of the Code and as otherwise provided for City Code violations.
