Cross references — Buildings and building regulations, Ch. 5; civil defense and disaster, Ch. 6; flood damage prevention and control, Ch. 11; plumbing, Ch. 20; street excavations generally, § 23-46 et seq; subdivision regulations, Ch. 24; swimming pools, Ch. 25.
State law reference — Authority to regulate excavations,
RSMo. § 79.410.
[Code 1964, § 10A-1]
For the purposes of this chapter, the following words and phrases
shall have the meanings respectively ascribed to them by this section:
The angle between the horizontal and the surface of a natural
slope that a mass of soil will assume.
Earth material placed in a void beneath finish grade.
The bounding side or inside surface of an excavation; generally
very steep or vertical.
A narrow shelf that breaks the continuity of a bank.
The board of adjustment of the city.
A horizontal, circular hole excavated exclusively by mechanical
means without the entry of persons into the excavation.
In mixed vertical and sloped section, the horizontal line
at which the upper sloped section meets the lower vertical.
The method of reinforcing the banks of a trench or excavation
or the supporting members of sheeting in sheet piling.
The city engineer or his duly authorized representative.
Securing by means of a piece of wood or metal to provide
strength and stability.
Soils which have the capacity of sticking or adhering together
without depending upon inter-particle friction.
The vertical distance from the surface where any excavation
or slope is started, to the bottom of that excavation or to the toe
of slope.
A vertical, circular hole excavated exclusively by mechanical
means without the entry of persons into the excavation.
Sheeting or bracing that is placed so tightly so as to require
the application of force.
The city engineer or his duly authorized representative.
A hole formed by boring, cutting, digging or scooping.
An essentially vertical excavation normally made by rotary
drilling.
A firm, plastic, fine grained earth.
A fine grained, non-crystalline, amorphous stratum which
will when struck cause hand excavating tools to ring audibly.
An excavation whose length and width exceed its average depth.
Soils which do not have the capacity of sticking together;
such soils generally exhibit inter-particle friction.
Fastened to the side by a mechanical means such as bolting
or spiking.
An excavation having vertical walls with depth its greatest
dimension.
The combined shearing resistance imparted by the cohesion
and/or friction between soil particles.
The planks driven or placed around the boundary of a proposed
excavation; the process of covering the sides of an excavation with
planks.
The method of reinforcing the sides of a trench or excavation
by continuous vertical members to support and exclude running material.
Excavations where banks are stable as a result of sloping,
rather than by bracing.
An inclined surface of constant inclination.
Structurally stable, consolidated natural materials that
cannot normally be excavated by manual methods alone; i.e., limestone
and sandstone.
Underground conduit construction at intermediate depths in
good, cohesive soils in which at one (1) or more locations holes are
opened with undercutting of the banks parallel to the conduit centerline,
to support the weight of the existing overburden and surface adjacent
to the hole.
A horizontal beam supporting sheeting and extending between
connecting upright posts in a frame.
Tension members used for anchoring.
The level surface at the bottom of a slope.
The broad, generally level surface at the uppermost limits
of a slope.
A narrow excavation made below the surface of the ground,
the depth of which will be greater than one of the horizontal dimensions.
The term shall not include, tunnels, wide trenches, shafts, stanking
or undercutting.
A portable metal assembly for shoring and bracing a limited
length of trench.
An enclosed excavation which generally runs horizontal beneath
the ground surface and whose ends may or may not be directly exposed
at ground surface.
Supporting from beneath.
Those trenches whose depth is equal to or greater than the
average depth.
[Code 1964, § 10A-2]
All excavations made in the city shall be made in strict compliance
with the following rules, regulations, conditions and restrictions
and it shall be unlawful for any person to fail to observe and follow
such rules, regulations, conditions and restrictions when making an
excavation:
(1)
All excavations six (6) feet or more in depth shall be provided with
ladders or stairways or ramps to facilitate safe entrance and exit.
Such ramps, ladders or stairways shall be sufficient in number and
so spread out that no worker in the trench will ever be more than
fifty (50) feet from one of them. All ladders shall extend from the
bottom of the excavation to at least three (3) feet above the surface
of the ground. At least two (2) or more workmen shall be required
on the job of making an excavation of six (6) feet in depth or more.
(2)
Hazardous material, such as rock, frozen earth, clods, stumps and
the like shall be kept from the sides of the trench to prevent rollbacks.
All excavated material and superimposed loads shall be placed at least
eighteen (18) inches from the sides of the excavation. When superimposed
loads or equipment are within the limiting plane of rupture, bracing
shall be increased to withstand the resultant additional pressures.
(3)
Subject to those exceptions specifically set forth in this chapter
the sides of all excavations more than six (6) feet deep shall be
supported by substantial and adequate sheeting, sheet-piling, bracing
and shoring. The design of the supporting system shall be based on
calculations of pressures, in which consideration is given to the
type and conditions of the material to be retained, surcharges imposed
by nearby structures, machinery or stored materials, vibrations from
equipment, blasting or traffic, anticipated weather conditions, period
of time in which the excavation work is to be completed and any other
pertinent factors which would have a bearing on the safety of the
excavation work.
(4)
Sheeting, sheet-piling, bracing or shoring shall not be required
in the following cases:
a.
Excavations for the foundation or basement of any building, structure
or swimming pool for which a building permit has been duly issued.
b.
Utility post holes, test borings, drilled pier foundations, bored
tunnels, drilled wells and grave excavations, providing no person
will enter them.
c.
Where the sides of the excavation are completely situated in solid
rock, hard clay or hard shale.
d.
Where the sides of the excavation are sloped to the angle of repose.
e.
In cohesive soils until the depth of a trench exceeds eight (8) feet,
when vertical banks are removed by a distance of eight (8) feet or
more from paralleling trench or similar excavations, either active
or completed, and no free ground soil moisture is present.
f.
Where the total depth of the excavation is less than fifteen (15)
feet and the sides are cut at an inclination no steeper than one (1)
horizontal to one (1) vertical.
g.
Where the total depth of an excavation exceeds fifteen (15) feet,
if the bank inclination is not steeper than one and one-half (1½)
horizontal to one (1) vertical.
h.
Where an excavation extends through sound horizontal (-5 degree)
rock. However, any overburden above the rock material shall be braced
or sloped as required for excavations with mixed vertical and sloped
sections.
i.
Where the bottom width of a width of a wide trench exceeds the depth
of an excavation for uses such as drainage ditches, unlined flood
control channels, highway cuts, large excavations, site grading, sewage
lagoons, artificial lakes and ponds, rough grading for highway and
railroad underpasses, relatively shallow pits for nursery plantings
and drainage sumps in large excavations.
j.
The bracing requirements for vertical or sloped banks steeper than
those permitted to be without bracing under this chapter may be waived
if all the following conditions are met:
1.
The excavation is for other than trench, shaft or pier purposes.
2.
An extensive subsurface investigation preceded design.
3.
Design is by a registered professional engineer.
4.
The construction is scheduled for a time of year in which inherent
soil stability is at its greatest.
5.
A detailed scheduling by the contractor is prepared, which indicates
method by which all reasonably anticipated occurrences would be met
and the specific steps which would be taken in each case.
6.
Entire construction period is continuously under the supervision
of the city engineer responsible for the investigation and design.
7.
Filing with the city engineer a certificate signed by the initiating
registered professional engineer that all the above conditions are
met.
(5)
In case of trenches, the support provided for in subparagraph (3)
herein, shall be in accordance with the minimum requirements for size
and spacing; of sheeting and timbers as set forth in Table A, which
table is attached hereto and so designated. These are minimum requirements.
Greater factors of safety shall be provided when conditions encountered
on a job make them advisable.
(6)
The bracing for piers and footing shall meet the acceptable minimum
requirements as outlined for excavations, with the top of grade being
the highest point within three (3) feet of the edge of the excavation.
(7)
All shafts and tunnels in other than sound rock shall be braced.
The permittee shall use detailed bracing plans approved by a registered
professional engineer for shafts and tunnels. Bracing is not required
for stanking.
(8)
All trench and foundation excavations shall be cut with vertical
walls unless the sides are sloped to no steeper than the stated maximum.
Undercutting of earth banks shall not be permitted in trench or foundation
excavations except as specifically stated for stanking.
Mechanical undercutting at the base of drilled foundation piers
is also excluded from this prohibition. Undercutting by hand at the
base of foundation piers shall require that the entire length of the
pier above the zone of undercutting be braced by the installation
of approved sections, and further undercutting by hand shall be permissible
only when the soil within the height of the undercutting or belled
zone is in sound rock or a plastic soil with a shear strength of at
least fifteen hundred (1500) psf.
(9)
Where soils excavated and to be held at a vertical bank are essentially
non-cohesive and where ground water enters the excavation, solid sheeting
will be required for all vertical faces, even when the depth of the
excavation is less than the mandatory requirements for other considerations.
(10)
Where the sloping of excavation banks to stated inclinations does
not extend to the bottom of the cut, the vertical part of the trench
shall be braced as conditions require, with vertical uprights extending
not less than two (2) feet above the bottom of the slope. Toe boards
to the total height of two (2) feet above the bottom of the slope
shall be placed behind all the uprights to prevent material from falling
into the vertical portion of the trench.
(11)
A trench shield or box may be used in lieu of other bracing and shoring
in the length of trench in which personnel are working. The shield
shall be constructed sturdy enough to withstand the pressures from
the trench wall cave-in and resist wracking or damage from removal
and reuse.
(12)
All materials used for shoring, bracing and sheet-piling shall be
sound, straight grained timber equal in strength to Long Leafed Yellow
Pine, Douglas Fir or other material of equal strength. All timber
shall be free of splits, shakes, large or loose knots and shall be
of required dimensions throughout.
(13)
Where conditions prohibit the use of horizontal cross braces to support
the sides of an excavation, substantial and adequate shoring or tie
rods shall be provided. Tie rods shall be securely anchored well back
of the angle of repose.
(14)
Cross braces and screw jacks shall be cleated, scabbed or otherwise
securely fastened in place. Braces, where screw jacks are not also
used, shall be cut and fitted for a "driving" fit. In hand excavated
trenches, cleats shall be spiked or bolted to join the ends of braces
to stringers to prevent the braces from being knocked out of place.
(15)
Surface areas adjacent to the sides of excavations shall be well
drained.
(16)
Bracing and shoring shall be inspected daily by the person in charge
of making the excavation, and any necessary adjustments shall be made
immediately.
(17)
Backfilling and dismantling of bracing, shoring and sheeting shall
be accomplished cautiously, keeping backfill as close to dismantled
as possible. Pressure of the jacks or braces shall be released slowly,
and in unstable or loose soil, ropes shall be fastened about the jack
or braces, personnel shall be cleared from the excavation affected,
and the bracing shall be pulled out by the ropes from above.
(18)
When internal combustion engines are used in or near an excavation,
precautions shall be taken to keep exhaust gasses from entering the
excavation. Where necessary, ducts shall be attached to the exhaust
to conduct the gasses away from the excavation.
(19)
The location of underground utilities such as electric, telephone,
gas, water, and sewer mains shall be determined before excavation
begins. If any of these utilities are to be removed or interfered
with, the respective utility companies shall first be notified and
services shall be disconnected before operations begin.
(20)
When excavations are made within ten (10) feet of utility poles,
suitable precautions shall be taken to prevent movement of the pole
and associated guys.
[Code 1964, § 10A-3]
When necessary, a fence, railing or barrier shall be erected
about the site of the excavation work or a watchman shall be provided
to guard the site, by the person responsible for the excavation, so
as to prevent danger to members of the public, and such protective
barriers shall be maintained until the work shall be completed or
the danger removed. One (1) hour before sunset there shall be placed
upon such place of excavation and upon any excavated materials or
structures, suitable and sufficient lights which shall be kept burning
throughout the nights during the maintenance of such obstructions.
It shall be unlawful for anyone to tamper with, remove or tear down
any of the protective railings, fences, barriers or lights provided
there for the protection of the public.
[Code 1964, § 10A-4]
(a)
The city engineer is the person vested with executive authority to
see that all provisions of this chapter are carried out.
(b)
If upon inspection by the city engineer, a violation of this chapter
is found to exist, the city engineer may require that all excavation
work shall immediately cease until the violation is corrected.
[Code 1964, § 10A-5]
Any authorized representative of the city engineer may, at any
and all times, go upon and inspect any premises or property where
excavation operations are being conducted, for the purpose of making
any investigations to ascertain whether the provisions of this chapter
are being complied with, and shall make a due and timely report to
the city engineer of any violation thereof. It shall be unlawful for
any person to interfere with the making of inspections as provided
for by this chapter.
[Code 1964, § 10A-6]
(a)
Any person aggrieved by any action or decision of the city engineer
connected with any subject matter covered by this chapter may file
an appeal with the board of adjustment within thirty (30) days of
such decision or action, and the board of adjustment shall fix a time
and place for a hearing, in accordance with the zoning ordinance of
the city. The complainant shall have the right to counsel at such
hearing and to produce witnesses and other evidence in his behalf.
For the purpose of such hearing the board of adjustment is empowered
to issue subpoenas and all necessary processes, administer oaths and
take testimony.
(b)
The decision of the board of adjustment at the hearing shall be made
in writing and a copy thereof shall be forwarded to the complainant.
The decision shall be reviewable in a court of competent jurisdiction
upon petition filed by the complainant so affected within thirty (30)
days after such decision has been filed in the office of the board
of adjustment in accordance with the zoning ordinance of the city.
[Code 1964, § 10A-7]
Any person violating any provision of this chapter shall, upon conviction, be subject to punishment as provided in section 1-10 of this Code. In addition to the penalties prescribed herein, the city may take such other action, either at law or equity, that it deems necessary in order to execute and enforce the provisions of this chapter.
|
TABLE 1
MINIMUM RECOMMENDATIONS FOR TRENCH TIMBERING
OR SLOPE ANGLE
| |||||||
|---|---|---|---|---|---|---|---|
|
TRENCHES NOT MORE THAN 42" WIDE
| |||||||
|
Depth of Trench in Feet
|
Uprights
|
Stringers
|
Cross Bracing**
|
Horizontal Spacing
|
Slope
Hor.: Vert.
| ||
|
Size
|
Horizontal Spacing
|
Size
|
Vertical Spacing
|
Size
| |||
|
HARD AND SOLID SOILS
| |||||||
|
6' — 10'
|
2"x6"
|
6'c-c
|
None
|
2-4"x4" up to 7' 3-4"x4" up to 10'
|
6' c-c
|
1:1
| |
|
10' — 15'
|
2"x6"
|
4'c-c
|
None
|
3-4"x4" to 13' 4-4"x4" to 15'
|
4" c-c
|
1:1
| |
|
Over 15'
|
2"x6"
|
Close Tight
|
4"x12"
|
4' c-c
|
4"x12"
|
6" c-c
|
1½:1
|
|
SOIL LIKELY TO CRACK AND CRUMBLE
| |||||||
|
6' — 10'
|
2"x6"
|
3' c-c
|
2"x6"
|
Top and Bottom
|
2-4"x4" to 7' 3-4"x4" up to 10'
|
6' c-c
|
1:1
|
|
10' — 15'
|
2"x6"
|
3' c-c
|
2"x6"
|
3 in. height
|
3-4" x 4"-13'
4-4"x4" - 15'
|
6" c-c
|
1:1
|
|
Over 15'
|
2"x6"
|
Close Tight
|
4"x12"
|
4' c-c
|
4"x12"
|
6' c-c
|
1½:1
|
|
SOFT, SANDY, UNCONTROLLED FILLED, LOOSE OR WATER
BEARING SOILS
| |||||||
|
6' — 10'
|
2"x6"
|
Close Tight
|
4"x6"
|
2 up to 7'
3 up to 10'
|
4"x6"
|
6' c-c
|
1:1
|
|
10' — 15'
|
2"x6"
|
Close Tight
|
4"x6"
|
3 up to 13'
4 up to 15'
|
4"x6"
|
6' c-c
|
1½:1
|
|
Over 15'
|
2"x6"
|
Close Tight
|
4"x12" 4'
|
c-c
|
4"x12"
|
6' c-c
|
1½:1
|
|
**
|
Screw type trench jacks may be used for cross bracing.
|
|
TABLE 1
MINIMUM RECOMMENDATIONS FOR TRENCH TIMBERING
OR SLOPE ANGLE
| |||||||
|---|---|---|---|---|---|---|---|
|
TRENCHES MORE THAN 42" IN WIDTH
| |||||||
|
Depth of Trench in Feet
|
Uprights
|
Stringers
|
Cross Bracing**
|
Horizontal Spacing
|
Slope
Hor.: Vert.
| ||
|
Size
|
Horizontal Spacing
|
Size
|
Vertical Spacing
|
Size
| |||
|
HARD AND SOLID SOILS (EXCEPT AS NOTED)
| |||||||
|
6' — 10'
|
2"x6"
|
6' c-c
|
4"x6"
|
4' c-c
|
4"x6"
|
6' c-c
| |
|
10' — 20'
|
2"x6"
|
Close
|
6"x6"
|
4' c-c
|
6"x6"
|
6' c-c
|
All Soils
|
|
Over 20'
|
2"x6"
|
Close
|
6"x8"
|
4' c-c
|
6"x8"
|
6' c-c
|
All Soils
|
|
SOIL LIKELY TO CRACK OR CRUMBLE
| |||||||
|
6' — 10'
|
2"x6"
|
3' c-c
|
4"x6"
|
4' c-c
|
4"x6"
|
6' c-c
| |
|
SOFT, SANDY, UNCONTROLLED FILLED, LOOSE OR WATER
BEARING SOILS
| |||||||
|
6' — 10'
|
2"x6"
|
Close
|
4"x6"
|
2 up to 7'
3 up to 10'
|
4"x6"
|
6' c-c
| |
|
**
|
Screw type trench jacks may be used for cross bracing.
|
|
TABLE 1
MINIMUM RECOMMENDATIONS FOR TRENCH TIMBERING
OR SLOPE ANGLE
| |||||||
|---|---|---|---|---|---|---|---|
|
TRENCHES OF ANY WIDTH
| |||||||
|
Depth of Trench in Feet
|
Uprights
|
Stringers
|
Cross Bracing**
|
Horizontal Spacing
|
Slope Hor.: Vert.
| ||
|
Size
|
Horizontal Spacing
|
Size
|
Vertical Spacing
|
Size
| |||
|
SOIL HAVING HYDROSTATIC PRESSURE
| |||||||
|
Not over 8'
|
2"x6" *T&G
|
Tight Close
|
6"x8"
|
4' c-c
|
6"x8"
|
6' c-c
|
2:1
|
|
Over 8'
|
3"x6" *T&G
|
Tight Close
|
8"x10"
|
4' c-c
|
6"x8"
|
6' c-c
|
2:1
|
|
*
|
Sheet Steel Piling may be used in place of tongue
and groove piling. The greater dimension of the stringers should be
at right angle to the sheeting.
|
|
**
|
Screw type trench jacks may be used for cross bracing.
|
[Ord. No. 2069 § 3, 10-4-2007]
(a)
CITY FACILITIES
DIRECTOR
EMERGENCY RIGHTS-OF-WAY (OR "ROW") WORK
FACILITIES
PERSON
PERSON(S) HAVING FACILITIES WITHIN THE RIGHTS-OF-WAY
RIGHTS-OF-WAY OR ROW
RIGHTS-OF-WAY (OR "ROW") PERMIT
RIGHTS-OF-WAY (OR "ROW") USER
RIGHTS-OF-WAY (OR "ROW") WORK
SERVICE
WITHIN
The following terms shall have the following meanings unless otherwise
defined by context:
Any facilities located within the public rights-of-way and
owned by the City.
The City's Public Works Director or such other person
designated to administer and enforce this Article.
Includes, but is not limited to, ROW work made necessary
by exigent circumstances to repair, control, stabilize, rectify or
correct an unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility when such failure results or could result
in danger to the public or a material delay or hindrance to the provision
of service.
A network or system or any part thereof used for providing
or delivering a service and consisting of one (1) or more lines, pipes,
wires, cables, fibers, conduit facilities, cabinets, poles, vaults,
pedestals, boxes, appliances, antennas, transmitters, radios, towers,
gates, meters, appurtenances or other equipment.
An individual, partnership, limited liability corporation
or partnership, association, joint stock company, trust, organization,
corporation or other entity or any lawful successor thereto or transferee
thereof.
Any person having ownership or control of facilities located
within the rights-of-way.
Unless otherwise 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
(i) City facilities or the City's property other than ROW, such
as city-owned or operated buildings, parks or other similar property,
(ii) airwaves used for cellular, non-wire telecommunications or broadcast
services, (iii) easements obtained by ROW users on private property,
(iv) railroad rights-of-way or ground used or acquired for railroads,
or (iv) facilities owned and used by the City for the transmission
of one (1) or more services. No reference herein to "rights-of-way"
shall be deemed to be a representation or guarantee by the City that
its interest or other right to control the use of such property is
sufficient to permit its use for the delivery of service.
A permit granted by the City to a ROW user for ROW work.
A person performing ROW work within the rights-of-way. A
ROW user shall not include ordinary vehicular or pedestrian use.
Action by a ROW User to (i) install, change, replace, relocate,
remove, maintain or repair facilities within the rights-of-way, or
(ii) 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.
Providing or delivering an economic good or an article of
commerce, including, but not limited to, gas, telephone, cable television,
Internet, open video systems, video services, alarm systems, steam,
electricity, water, telegraph, data transmission, petroleum pipelines,
sanitary or stormwater sewerage or any similar or related service,
to one (1) or more persons located within or outside of the City by
use of facilities located within the rights-of-way.
In, along, under, over or across rights-of-way.
[Ord. No. 2069 § 3, 10-4-2007]
(a)
Application requirements.
(1)
Any person desiring to perform ROW work must first apply for and
obtain a ROW permit in addition to any other building permit, license,
easement, franchise or authorization required by law. In the event
of a need for emergency ROW work, the person conducting the work shall
as soon as practicable notify the City of the location of the work
and shall apply for the required ROW permit as soon as practicable
following the commencement of the work, not to exceed the third 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 Article and to accomplish the
purposes of this Article. Each application shall at minimum contain
the following information for the proposed ROW work, unless otherwise
waived by the Director:
(i)
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;
(ii)
If different from the applicant, the name, address and telephone
number of the person on whose behalf the proposed work is to be performed;
(iii)
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;
(iv)
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;
(v)
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:
(i)
An application fee approved by the City to cover the cost of
processing the application;
(ii)
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:
(i)
Has submitted all necessary information,
(ii)
Has paid the appropriate fees, and
(iii)
Is in full compliance with this Article 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 Article.
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:
(i)
Shall not increase expenses by more than ten percent (10%) of
the applicant's costs for the work as proposed,
(ii)
Shall not result in a decline of service quality, and
(iii)
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.
(i)
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.
(ii)
If the Director determines that the effect on the rights-of-way
will be more than minor in nature and no exemption under the above
paragraph (c)(i) or any other provision of this Article 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 Article, 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:
(i)
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;
(ii)
Length of affected rights-of-way, number of road crossings and
identification and description of any pavement or curb cuts included
in the work;
(iii)
Information regarding scheduling and coordination of work, if
necessary;
(iv)
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;
(v)
An acknowledgment and representation by the applicant to comply
with the terms and conditions of the ROW permit and this Article;
and
(vi)
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:
(i)
Delinquent fees, costs or expenses owed by the applicant;
(ii)
Failure to provide information required by the application or
this Article:
(iii)
The applicant being in violation of the provisions of this Article
or other pertinent and applicable City ordinances;
(iv)
Failure to return the ROW to its previous condition under previously
issued ROW permits or after prior excavations by the applicant;
(v)
For reasons of environmental, historic or cultural sensitivity
as defined by applicable federal, state or local law;
(vi)
For the applicant's refusal to comply with alternative
ROW work methods, locations or other reasonable conditions required
by the Director; and
(vii)
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 nondiscriminatory 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 Article.
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:
(i)
A material violation of a provision of the ROW permit or this
Article;
(ii)
An evasion or attempt to evade any material provision of the
ROW permit or this Article or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its residents;
(iii)
A material misrepresentation of fact in the ROW permit application;
(iv)
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
(v)
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 Article 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 Article and in lieu of revocation the
Director may initiate prosecution of the ROW user for such violation.
[Ord. No. 2069 § 3, 10-4-2007]
(a)
Jurisdiction, inspection and stop work orders.
(1)
All facilities and ROW work shall be subject to inspection by the
City and the supervision of all federal, state and local authorities
having jurisdiction in such matters to ensure compliance with all
applicable laws, ordinances, departmental rules and regulations and
the ROW permit.
(2)
The Director shall have full access to all portions of the ROW work
and may issue stop work orders and corrective orders to prevent unauthorized
work or substandard work as established in Subsection (g) hereof.
Such orders:
(i)
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;
(ii)
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
(iii)
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 Article.
(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:
(i)
Ornamental or similar specially designed street lights,
(ii)
Designated historic areas,
(iii)
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,
(iv)
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
(v)
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 9-9(b)(2)(i) and the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
(d)
Relocation of equipment and facilities.
(1)
In the event of an emergency or where construction equipment or facilities
create or are contributing to an imminent danger to health, safety
or property, the City may, to the extent allowed by law, remove, re-lay
or relocate such construction equipment or the pertinent parts of
such facilities without charge to the City for such action or for
restoration or repair. The City shall attempt to notify the person
having facilities within the ROW prior to taking such action, but
the inability to do so shall not prevent same. Thereafter, the City
shall notify the person having facilities within the ROW as soon as
practicable.
(2)
At the City's direction, all facilities shall be moved underground
and the cost shall be solely the obligation of the person having facilities
within the ROW (or as otherwise allowed or required by law).
(3)
At the City's direction, a person having facilities within the
ROW shall protect, support, disconnect, relocate or remove facilities,
at its own cost and expense, when necessary to accommodate the construction,
improvement, expansion, relocation or maintenance of streets or other
public works or to protect the ROW or the public health, safety or
welfare.
(4)
A person having facilities within the ROW shall, on the reasonable
request of any person and after reasonable advance written notice,
protect, support, disconnect, relocate or remove facilities to accommodate
such person and the actual cost, reasonably incurred, of such actions
shall be paid by the person requesting such action. The person having
facilities within the ROW taking such action may require such payment
in advance.
(5)
Rather than relocate facilities as requested or directed, a ROW user
may abandon the facilities if approved by the City as provided in
Subsection (f) of this Section.
(6)
No action hereunder shall be deemed a taking of property and no person
shall be entitled to any compensation 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:
(i)
Installs the facilities within the ROW without having complied
with the requirements of this Article; or
(ii)
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 Article.
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 Article.
(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 9-9(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 Article.
(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
Article. A ROW user:
(i)
Must ensure that contractors, subcontractors and all employees
performing ROW work are trained and experienced.
(ii)
Shall be responsible for ensuring that all work is performed
consistent with the ROW permit and applicable law,
(iii)
Shall be fully responsible for all acts or omissions
of contractors or subcontractors,
(iv)
Shall be responsible for promptly correcting acts or omissions
by any contractor or subcontractor, and
(v)
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.
[Ord. No. 2414, 2-1-2018]
(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.
(i)
If the disturbed surface area of a paved street right-of-way (including
driveway areas) is three (3) feet or more in any dimension the minimum
restoration required will be replacement of the entire slab or street
segment within which any part of the disturbance is located. If the
disturbed surface area of a paved sidewalk right-of-way is eighteen
(18) inches or more in any dimension the minimum restoration required
will be replacement of the entire slab or sidewalk segment within
which any part of the disturbance is located. The Director shall establish
specification for replacement slabs based on the material, finish,
and condition of the slab(s) or segment(s) being replaced.
(ii)
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.
(iii)
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.
(iv)
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 Article.
(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. 2069 § 3, 10-4-2007]
(a)
Performance and maintenance bonds.
(1)
Prior to any ROW work a ROW user shall establish in the City's
favor a performance and maintenance bond in an amount to be determined
by the Director to ensure the restoration of the rights-of-way. The
bond shall continue in full force and effect for a period of twenty-four
(24) months following completion of the work. The Director shall have
the authority to extend the maintenance bond period for up to an additional
twenty four (24) months. The Director may waive this requirement when
the work involves no or only minor disruption or damage to the rights-of-way.
The Director shall waive this requirement when the ROW user has twenty-five
million dollars ($25,000,000.00) in net assets and does not have a
history of noncompliance 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:
(i)
Two million dollars ($2,000,000.00) for property damage resulting
from any one (1) accident;
(ii)
Five million dollars ($5,000,000.00) for personal bodily injury
or death resulting from any one (1) accident; and
(iii)
Two million dollars ($2,000,000.00) for all other types of liability.
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These insurance requirements shall not be construed to limit
the 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 Article.
(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 Article.
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:
(i)
Any ROW work including, but not limited to, the construction,
maintenance, repair or replacement of the facilities,
(ii)
The operation of its facilities,
(iii)
Failure to secure consents from landowners, or
(iv)
Any actions taken or omissions made by the person pursuant to
the authority of this Article.
(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 Article,
the City shall not be so indemnified or reimbursed in relation to
any amounts attributable to:
(4)
Recovery by the City of any amounts under insurance, a performance
bond or otherwise does not limit a person's duty to indemnify
the City in any way; nor shall such recovery relieve a person of amounts
owed to the City or in any respect prevent the City from exercising
any other right or remedy it may have.
(d)
Penalties. Any person violating any provision of
this Article 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. 2069 § 3, 10-4-2007]
(a)
The Director shall make a final determination as to any matter concerning
the grant, denial or revocation of a ROW permit as provided in this
Article. 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 Article, 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 Mayor within five (5) business days thereof.
The appeal shall assert specific grounds for review and the Mayor
shall render a decision on the appeal within fifteen (15) business
days of receipt affirming, reversing or modifying the determination
of the Director. The Mayor 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 Mayor may
file a petition for review pursuant to Chapter 536 of the Revised
Statutes of Missouri, as amended, in the Circuit Court of the County
of St. Louis. Such petition shall be filed within thirty (30) days
after the Mayor'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 Mayor may be submitted to mediation or binding
arbitration.
(2)
In the event of mediation, the Mayor 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 Mayor 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
Mayor, 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
arbitrator and of the arbitration. Each party shall also pay its own
costs, disbursements and attorney fees.
[Ord. No. 2069 § 3, 10-4-2007]
(a)
After the completion of ROW work the ROW user shall provide to the
City as-built drawings, maps or other comparable records as determined
by the Director, drawn to scale and certified to the City as reasonably
depicting the location of all facilities constructed pursuant to the
ROW permit. Such records may be provided to the Director in the form
maintained by the ROW user, but when available to the ROW user, shall
be submitted in automated formats that are compatible with City systems,
as determined by the Director, or in hard copy otherwise.
(b)
Upon failure of a ROW user to commence, pursue or complete any ROW
work required by law or by the provisions of this Article 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 Article 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.
