[Ord. No. 1209 §1, 8-29-2007]
For the purpose of this Chapter, the following terms, phrases,
words and abbreviations shall have the meanings given herein, unless
otherwise expressly stated. When not inconsistent with the context,
words used in the present tense include the future tense and vice
versa, words in the plural number include the singular number and
vice versa and the masculine gender include the feminine gender and
vice versa. The words "shall" and "will" are mandatory and "may" is permissive. Unless otherwise
expressly stated or clearly contrary to the context, terms, phrases,
words and abbreviations not defined herein shall be given the meaning
set forth in the City Code and if not defined therein, their common
and ordinary meaning. For further convenience, the first (1st) letter
of terms, phrases, words and abbreviations defined in this Chapter
have been capitalized, but an inadvertent failure to capitalize such
letter shall not affect its meaning, nor shall the inadvertent capitalization
of the first (1st) letter of a term, phrase, word or abbreviation
not defined herein affect the meanings thereof.
APPLICANT
The specific person applying for and receiving a permit for
facilities work.
APPLICATION
That form designed by the City of Dardenne Prairie which
an applicant must use to obtain a permit to conduct facilities work
within, across, under and over the City's rights-of-way.
CITY
The City of Dardenne Prairie, Missouri, and its agencies,
departments, agents and employees acting within their respective areas
of authority.
CITY FACILITIES
Any pavement for streets, sidewalks, alleys, paths; any curbs,
gutters, drainage structures, storm sewers, swales, ditches, sanitary
sewers, manholes, water mains, water service lines, water meters,
valves, street lights, conduits, traffic signals, cables, conduits,
panels, irrigation systems, bridges, culverts or signs in which the
City holds a property interest.
CONTRACTOR
Any person contracting with a facilities owner or permit
holder to do work within the public right-of-way.
EMERGENCY
A condition that:
1.
Poses a clear and immediate danger to life or health or of a
significant loss of property; or
2.
Requires immediate repair or replacement in order to restore
service to a customer.
EXCAVATION
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, tunneled,
uncovered, directional bored, removed or otherwise displaced by means
of any tools, equipment or explosives, except that any de minimis
displacement or movement of ground caused by pedestrian or vehicular
traffic which does not materially disturb or displace surface conditions
of the earth, asphalt, concrete, sand, gravel, rock or any other material
in or on the ground shall not be deemed excavation.
FACILITIES
Any conduit, valves, meters, duct, line, pipe, wire, hose,
manhole, pullbox, fiber optic cable, cable, culvert, pole, receiver,
transmitter, satellite dish, micro cell, Pico cell, repeater, amplifier
or other device, material, apparatus or medium usable (whether actually
used for such purpose or not) for the transmission or distribution
of any service or commodity installed below or above ground within
the public rights-of-way of the City, whether used privately or made
available to the public.
FACILITIES OWNER
A person who owns, lease or otherwise controls the use of
facilities.
FACILITIES WORK
The installation of new facilities or any change, replacement,
relocation, removal, alteration or repair of existing facilities that
requires excavation, excluding exploratory excavation to physically
locate facilities, within the public rights-of-way, except for the
occasional replacement of utility poles and related equipment at the
existing location that does not involve excavation.
INDIVIDUAL SERVICE CONNECTION
Individual water and sewer taps permitted as part of a building
permit and individual service connections from a supply line, wire
or cable for natural gas, electric, cable television, telecommunications
or other services to a residence or business.
PERMIT
A permit granted by the City to do facilities work within
the public rights-of-way.
PERMIT HOLDER
Any person to whom a permit has been granted by the City
under this Chapter.
PERSON
An individual, partnership, limited liability company, corporation,
association, joint stock company, trust, organization or any other
entity or any lawful successor thereto or transferee thereof.
PROBATION
The status of a person that has not complied with the conditions
of this Chapter.
PROBATIONARY PERIOD
One (1) year from the date that a person has been notified
in writing that they have been put on probation.
PROJECT
A written plan of work prepared and presented to the City
by an applicant that encompasses an outlined scope of work to be conducted
within the public rights-of-way. A project could be one (1) or more
separate excavations, constructions or installations within the public
right-of-way, but included as part of a single plan.
PUBLIC RIGHTS-OF-WAY
The surface, the air space above the surface and the area
below the surface of any street, highway, lane, path, alley, sidewalk,
boulevard, drive, bridge, tunnel, parkway, easement or other similar
property in which the City now or hereafter holds any property interest.
No reference herein, or in any permit, to public rights-of-way shall
be deemed to be a representation or warranty by the City that its
interest or other right to control the use of such property is sufficient
to permit its use for such purposes. Public rights-of-way do not include
the airwaves above the rights-of-way with regard to cellular or other
non-wire telecommunications or broadcast services or private easements
in platted subdivisions or tracts not dedicated to public use.
SCHEDULE
An outline prepared and presented by a facilities owner describing
all of its proposed facilities work which may affect public rights-of-way
for the following twelve (12) month period.
[Ord. No. 1209 §1, 8-29-2007]
A. Permit Requirements. Any person desiring to conduct facilities work within public rights-of-way must first apply for and obtain a permit in addition to any other building permit, municipal tree and landscape ordinance permit, license, easement or authorization required by law, unless such facilities work must be performed on an emergency basis as set forth in Section
530.020(B)(1). A permit shall be obtained for each project.
B. Facilities Work Done Without A Permit.
1. Emergency situations.
a. Each person performing facilities work on an emergency basis shall
immediately notify the City if performed during normal business hours,
and the City of Dardenne Prairie Police Department if performed outside
of normal business hours, of the location of the work and shall apply
for the required permit by the next business day following the commencement
of the facilities work and fulfill the rest of the requirements necessary
to bring itself into compliance with this Chapter.
b. In the event that the City becomes aware of an emergency requiring
facilities work, the City shall attempt to contact a representative
of each facility owner affected or potentially affected by the emergency.
If no response is received by a particular facilities owner to whom
contact is attempted, the City Engineer may take whatever action he/she
deems necessary in order to respond to the emergency, the cost of
which shall be borne by the person whose action or inaction occasioned
the emergency.
2. Except in the case of an emergency, any person who, without first
having obtained the necessary permit, performs facilities work or
excavation in a public right-of-way, in addition to any other penalties
provided for the violation of ordinances of this City, must subsequently
obtain a permit, pay double the normal fees for said permit, deposit
with the City all monies necessary to repair any damage caused by
the unauthorized facilities work or excavation to the public right-of-way
and comply with all of the requirements of this Chapter and other
City ordinances.
C. Permit Applications.
1. All applications for permits shall be submitted to the City Engineer.
The City Engineer shall design and make available standard forms for
such application, requiring such information as the City Engineer
determines to be necessary, in order to be consistent with the provisions
of this Chapter and to accomplish the purposes of this Chapter.
2. At a minimum, the application should have the following information:
a. The names, addresses, telephone numbers and legal status of the applicant,
contractor and facilities owner.
b. The name, address and telephone number of a responsible person whom
the City may notify or contact at any time concerning the applicant's
facilities work in or on the public rights-of-way.
c. A site plan showing the proposed location of the facilities work
including manholes or overhead poles; the length, size, type and proposed
depth of any conduit or any other enclosures; and the relationship
of the facilities to all existing streets; length of public rights-of-way;
the number of road crossings; the number of entrance drive crossings;
the locations of City-owned facilities in the proximity, if known,
and the dimensions and character of any cut or excavation and the
number of square feet to be resurfaced.
d. Each application should include the projected commencement and termination
dates of the facilities work or, if such dates are unknown at the
time the permit is issued, a provision requiring the permit holder
to provide the City Engineer with reasonable advance notice of such
dates once they are determined.
e. As applicable, information sufficient for the City to determine that
the applicant has applied for and received any permit, operation license
or other right or approvals required by the Federal Communications
Commission or the Missouri Public Service Commission; provided however,
that after the applicant has once provided the foregoing information,
such information can be incorporated by reference in future applications
that require such information rather than having to provide such information
with every subsequent application.
f. Certificates of insurance as required pursuant to Section
530.030(D)(10) of this Chapter.
[Ord. No. 2189, 4-20-2022]
g. Any additional information that the City Engineer may require which
may include such conditions and requirements as are reasonably necessary
to protect structures and facilities in the public rights-of-way from
damage and for the proper restoration of such public rights-of-way,
structures and facilities and for the protection of the public and
the continuity of pedestrian and vehicular traffic.
3. The City Engineer's review and approval of the application for permit
does not relieve the applicant of responsibility for:
a. Accuracy of dimensions and details.
b. Agreements and conformity of the submitted plans.
c. Successful completion of facilities work.
d. Proper and safe design done by the facility owner or its contractor.
e. Proper and safe construction of the facilities work.
4. The making and repairing of individual service connections in the public right-of-way shall require a separate permit if permitted as part of a building permit issued by the City. All repairs to the public right-of-way made as a result of individual service connections shall be in accordance with Section
530.020 of this Chapter and all applicable health, safety, building and construction codes.
5. Upon approval of such application and prior to commencement of facilities
work, payment of fees as designated in this Chapter shall be paid
to the City.
6. The City Engineer shall review each application for a permit and, upon determining that the applicant has all requisite authority to perform the desired facilities work and that the applicant has submitted all necessary information and has paid the appropriate fee, shall issue the permit, except as provided in Subsections
(D)(1) and
(D)(2) hereof. In order to avoid excessive processing and accounting costs to either the City or the applicant, the City Engineer shall have the authority to establish procedures for bulk processing of applications and periodic payment of fees.
7. It is the intention of the City that disruption of the public rights-of-way
should be minimized. Upon receipt of an application for a permit,
the City Engineer shall do the following:
[Ord. No. 2189, 4-20-2022]
a. Evaluate the degree of excavation necessary to perform the facilities work in the public rights-of-way and determine whether the proposed excavation will be more than minor in nature. The City Engineer shall grant a permit within ten (10) business days for facilities work deemed minor in nature. If the applicant can show to the City Engineer's reasonable satisfaction that the facilities work involves time sensitive maintenance, then the City Engineer shall grant the permit within two (2) business days. In either instance if the permit is not issued in ten (10) business days, the aggrieved party may appeal to the City Administrator as provided in Subsection
(E) of this Section
530.020, unless the applicant is submitting one (1) project application for multiple excavations, construction or installations; and
b. For circumstances where the City Engineer determines that there will be significant facilities work of the public rights-of-way and no exemption under Subsection
(C)(7)(a) or any other provisions of this Subsection applies, the City Engineer may, consistent with the time requirements set forth in Subsection
(C)(7) and in the permit, direct permit holders performing facilities work in the same area to consult on how they may schedule and coordinate their work to accomplish the goal of this Section.
(1)
For larger excavation projects, total linear footage per permit
shall be limited to two thousand (2,000) linear feet and/or twenty
(20) open cut/hole areas. ROW work shall be broken up into separate
permits to comply with these requirements. Permits may be suspended
by the City until the adjacent permits are completed in full, or at
least to the point where the restoration work is complete.
8. An applicant receiving a permit shall promptly notify the City Engineer
of any changes in the information submitted in this application.
9. Each permit shall be valid for the number of days stipulated on the
permit. Permit holders may request an extension on the permit time
restriction in writing to the City Engineer. If the time limit on
the permit expires without approval of an extension, the permit shall
be considered terminated.
10. The City Engineer shall maintain an index of all applicants who have
been granted permits and their contact person.
11. An applicant whose permit application has been withdrawn, abandoned
or denied for failure to comply with the terms and provisions of this
Chapter shall not be refunded the application fee.
D. Denial Of Permits.
1. Mandatory denial. Except in the case of an emergency,
the City Engineer shall deny an application for permit in the following
events:
a. Facilities work is sought which requires excavation of any portion
of the paved public right-of-way which was constructed or reconstructed
in the preceding five (5) years or as determined by the City Engineer.
b. The applicant, contractor or facilities owner owes undisputed past
due fees from prior permits.
c. The applicant, contractor or facilities owner has failed to return
the public right-of-way to its previous and acceptable condition under
previous permits.
d. The facilities work will cause undue disruption to existing or planned
utilities, transportation, public or City use.
e. The facilities work area is environmentally sensitive as defined
by State or Federal Statute.
f. Applicant's failure to provide required information.
g. Applicant's failure to provide City with required schedule, provided
however, that the failure of an applicant to include in the schedule
construction activities which were not anticipated at the time of
submitting the schedule will not constitute grounds for denial of
permit.
h. Failure of applicant to list the project in the schedule, provided
however, that the failure of an applicant to include in the schedule
construction activities which were not anticipated at the time of
submitting the schedule will not constitute grounds for denial of
permit.
i. The applicant is in violation of the provisions of this Chapter.
j. Location of proposed facilities work would impede maintenance of
existing facilities.
k. Failure to pay for damages caused to any City facilities from prior
facilities work by the applicant or facilities owner.
If a permit is denied under Subsections
(D)(1)(d),
(D)(1)(e),
(D)(1)(j),
(D)(2)(a),
(D)(2)(b) or
(D)(2)(g), the City Engineer will cooperate with the applicant to identify alternative routes which most nearly match the routes requested by applicant for the placement of facilities.
2. Permissive denial. The City Engineer may deny a
permit in order to protect the public health, safety and welfare and
to prevent interference with the convenience of ordinary travel over
the public right-of-way and to its users. The City Engineer in his/her
discretion may consider one (1) or more of the following factors:
a. The extent to which public right-of-way where the permit is sought
is available;
b. The competing demands for the particular location in the right-of-way;
c. The availability of other locations in the right-of-way or in other
rights-of-way for the facilities of the applicant;
d. The degree of current compliance of the applicant with the terms
and conditions of its franchise and other applicable ordinances and
regulations;
e. The condition and age of the public right-of-way and whether and
when it is scheduled for total or partial reconstruction;
f. The balancing of the costs of disruption to the traveling public
and damage to the public right-of-way against the benefits to that
part of the public served by the expansion into additional parts of
the public right-of-way; and
g. Destruction of public or private plant material.
E. Appeal Procedure. Applicant may, within fifteen (15) days
of the date of the written decision of the City Engineer, appeal any
final decision of the City Engineer to the City Administrator, which
appeal shall be acted upon by the City Administrator within ten (10)
business days; and if denied by the City Administrator, the applicant
may then, within thirty (30) days of the date of the written decision
of the City Administrator, appeal any final decision of the City Administrator
to the Board of Aldermen who shall consider the appeal within thirty
(30) days or at the next regular scheduled Board of Aldermen meeting.
F. Applicable Fees.
1. Any fees collected pursuant to this Section will be used only to
reimburse the City for its actual costs incurred in managing the public
rights-of-way and will not be used to generate revenue to the City
above such costs, excluding legal fees relating to the interpretation
or enforcement of this Chapter, including all appeals.
2. All permit fees shall be doubled during a probationary period.
3. Permit fees that were paid for a permit that the City Engineer has revoked for a breach as stated in Subsection
(G) of this Section
530.020 are not refundable.
G. Revocation Of Permits.
1. Permits issued pursuant to this Chapter are a privilege and not a
right. The City reserves its right, as provided herein, to revoke
any permit, without fee refund, in the event of a violation of the
terms and provisions of any applicable Statute, ordinance, rule or
regulation or any condition of the permit. A violation of a permit
holder shall include, but shall not be limited to, the following:
a. The violation of any material provision of the permit;
b. An evasion or attempt to evade any material provision of the permit
or the perpetration or attempt to perpetrate any fraud or deceit upon
the City with respect to the permit;
c. Any material misrepresentation of fact in the application for a permit;
d. The failure to maintain the required bonds and/or insurance;
e. The failure to complete the facilities work in a timely manner; or
f. The failure to correct or comply with a condition indicated on an order issued pursuant to Section
530.020(B) hereof.
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If the City Engineer determines that the permit holder has committed
a violation of any term or condition of any Statute, ordinance, rule,
regulation or any condition of the permit, the City Engineer shall
make a written demand upon the permit holder to remedy such violation.
The demand shall state that continued violation may be cause for revocation
of the permit and for the imposition of other penalties as provided
for by law. Further, a violation shall allow the City Engineer, at
his/her discretion, to place additional or revised conditions in the
permit.
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2. Within three (3) business days of receiving notification of a violation,
the permit holder shall contact in writing the City Engineer with
a plan, acceptable to the City Engineer, for its correction. Permit
holder's failure to so contact the City Engineer or the permit holder's
failure to submit an acceptable plan or permit holder's failure to
reasonably implement the approved plan shall be cause for immediate
revocation of the permit. In addition to all other penalties provided
for herein, permit holder's failure to so contact the City Engineer
or the permit holder's failure to submit an acceptable plan or permit
holder's failure to reasonably implement the approved plan shall automatically
place the permit holder on probation for one (1) full year.
3. If permit holder, while on probation, commits a violation as outlined
above, permit holder's permit will automatically be revoked and permit
holder will not be allowed further permits for one (1) full year thereafter,
except for emergency repairs. Applicant may repeal any such revocation
to the City Administrator. The City Administrator may rescind revocation
of a permit upon payment of a fee of one thousand dollars ($1,000.00).
4. If the permit is revoked, the permit holder shall also reimburse
the City for the City's reasonable costs, including restoration costs
and costs of collection incurred in connection with such revocation.
H. Coordination Of Construction Activities. All permit holders
are required to cooperate with the City and with each other as follows:
1. By January fifteenth (15th) of each year, each permit holder shall
provide the City Engineer with a schedule of its proposed construction
activities which may affect the public rights-of-way for the ensuing
twelve (12) months. Failure to provide a schedule on a timely basis
may be considered in denial of a permit for the ensuing twelve (12)
months.
2. Each permit holder shall meet with the City Engineer and other permit
holders, either quarterly or as determined by the City Engineer, to
schedule and coordinate facilities work.
[Ord. No. 1209 §1, 8-29-2007]
A. Oversight Of Facilities Work.
1. Permit holders shall comply with all City Codes and ordinances.
2. The permit holder shall at all times construct, operate and maintain
facilities subject to the supervision of the City who have jurisdiction
in such matters and in strict compliance with this Chapter, all applicable
zoning, building and construction permitting ordinances, departmental
rules and regulations. The permit holder shall provide temporary facilities
where and when necessary to conveniently serve pedestrian travel over
or through obstructions at public walkways and at locations designated
in their application.
3. The permit holder shall give all emergency service providers as well
as the City Engineer three (3) working days' notice to arrange for
routing of emergency vehicles before streets are closed to traffic.
Access to fire hydrants shall not be obstructed without approval of
the City Engineer and local Fire Chief.
4. Unless for an emergency, no person shall make paving cuts or curb
cuts except after receiving approval of a permit therefor.
5. Facilities work shall be subject to periodic inspection by the City.
All excavation, alignment, depth, compaction and backfill materials
shall be subject to inspection by the City. Such inspection, however,
shall not relieve the permit holder from any obligation to perform
all of the facilities work strictly in accordance with requirements
of the plans and technical specifications submitted with the application.
B. Inspections And Final Acceptance.
1. Approval of the facilities work, as provided for herein, shall not
relieve the permit holder of any financial liabilities imposed on
the permit holder, nor shall it constitute final acceptance for maintenance
by the City of the facilities work. Final acceptance of the facilities
work will not be made until one (1) calendar year after completion
of the facilities work and its reinspection to confirm its continued
compliance with the plans and technical specifications submitted with
the application.
2. Within five (5) days following notification from the permit holder
that all facilities work has been completed, the City Engineer will
make an inspection of the entire facilities work site. If any work
is found to be unsatisfactory or incomplete, instructions for correction
will be issued and another inspection will be made after the City
Engineer receives notice that the corrections have been carried out.
Before final acceptance of the completed facilities work, the permit
holder shall remove all surplus and discarded materials, equipment,
rubbish and temporary structures.
C. Unacceptable And Unauthorized Work.[Ord. No. 2189, 4-20-2022]
1. The City Engineer shall have full access to all portions of facilities
work and may issue stop work orders and corrective orders to prevent
unacceptable or unauthorized work.
a. Unauthorized Work. In the case of unauthorized work, such corrective
or stop work orders shall state that work not authorized by the permit
is being carried out, summarize the unauthorized work and provide
a period of no longer than thirty (30) days to cure the problem unless
a time extension is approved by the City Engineer, which cure period
may be shortened if certain activities must be ceased to protect the
public safety and may be delivered personally or by certified mail
to the address listed on the application for permit or to the person
in charge of the facilities work site at the time of delivery.
b. Unacceptable Work. Unacceptable work shall include circumstances where real or personal property has been damaged in the vicinity of facilities work being performed by a permit holder or their contractor and the City Engineer has reasonable suspicion to believe that the damage was caused as a result of the facilities work. In such circumstances, the City Engineer is authorized to issue a stop work order for a period of time not to exceed thirty (30) days. During the stoppage, the City Engineer shall investigate the cause of the real or personal property damage. If the City Engineer finds that the real or personal property damage was caused by the facilities work, the City Engineer may issue a corrective order or revoke the permit pursuant to Section
530.020(G) of this Chapter.
Such orders may be enforced by equitable action in the Circuit
Court of St. Charles County, Missouri, and if the City prevails in
such case, the person involved in the facilities work, by acceptance
of the permit, agrees to be liable for all costs and expenses incurred
by the City, including reasonable attorney's fees, in enforcing such
order, in addition to any and all penalties established in this Chapter.
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D. Construction Standards.[Ord. No. 2189, 4-20-2022]
1. The construction, operation, maintenance and repair of facilities
shall be in accordance with all applicable ordinances.
2. All facilities shall be installed and located with due regard for
minimizing interference with the rights of the public, including the
City and other users of the public rights-of-way. All facilities work
shall be performed 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 City Engineer and set forth in the permit.
3. All new facilities shall be constructed underground except for facilities
that are required to be located above ground and except in areas that
have been designated as overhead corridors by the City Engineer. In
cases where facilities will be placed underground, the permit holder
shall give to all facility owners registered hereunder reasonable
written advance notice of the particular date on which open trenching
will be available for installation of facilities. Above ground pedestals,
vaults, antennae or other facilities may be installed only if approved
by the City Engineer where alternative underground facilities are
not feasible or where underground requirements are otherwise waived
pursuant to this Chapter. Except if contrary to governing law, existing
conduit shall be used where feasible and available.
4. Existing underground conduits or overhead facilities shall be used
whenever feasible and permitted by the owner thereof. No person may
erect new poles or similar structures within the public right-of-way
without the prior, express written consent of the City Engineer.
5. Applicant shall not place facilities where they will damage or interfere
with the use or operation of previously installed facilities or obstruct
or hinder the various utilities serving the residents and businesses
in the City or their use of any public rights-of-way. Should the permit
holder, their contractor or subcontractor damage the facilities of
another facilities owner, permit holder shall, within one (1) day
report to the City, of the occurrence thereof, identifying the precise
location of the damage to the facilities, the permit holder performing
the facilities work, the facilities owner impacted, and the description
of the damage caused. For purposes of this paragraph, damage to facilities
shall include, but is not limited to, cutting, striking or disconnecting
any facilities or any other activity that may cause disruption to
the provision the services of any other facilities owner, without
the prior consent of that facilities owner and notice to the City
Engineer.
6. The permit holder shall be responsible to inform the City Engineer
of any damage to City property. The permit holder shall be responsible
to inform any other facilities owner of possible damage to their facilities.
The permit holder is fully responsible for reimbursing the facilities
owners for damages caused by the permit holder’s work to facilities
whose existence and approximate locations were known or should have
been known before the damage was done. Nothing in this Chapter shall
make the permit holder liable for damage to facilities located below
the ground surface, in the absence of negligence, if the facility
owner, after reasonable notice from the permit holder, fails to advise
the permit holder of its location and approximate depth below the
ground surface.
7. Prior to directional boring critical existing City facilities, such
facilities shall be located by digging a hole large enough to visually
inspect the facilities at proposed crossing locations, unless deemed
unnecessary by the City Engineer. To prevent damage to existing facilities,
the boring operation shall be visually monitored during the placement
of new facilities.
8. Any and all public rights-of-way or facilities disturbed or damaged
during the facilities work shall be promptly repaired or replaced,
or caused to be promptly repaired or replaced, to its previous condition
by the permit holder or, at the City Engineer’s discretion,
by the City, at the permit holder’s expense.
9. Any contractor or subcontractor used for facilities work must be
properly licensed under laws of the State of Missouri and all applicable
local ordinances, and each contractor or subcontractor shall have
the same obligations with respect to its work as a permit holder would
have hereunder and shall be responsible for ensuring that the work
of contractors and subcontractors is performed consistent with its
permits and applicable law, shall be fully responsible for promptly
correcting acts or omissions by any contractor or subcontractor.
10. Insurance. Applicant shall provide at its sole expense, and maintain
during the term of the permit commercial general liability insurance
with one million dollars ($1,000,000.00) per accident limits, combined
single limits with an insurer rated at least A-VII by AM Best and
eligible to do business in the State of Missouri, and unless otherwise
approved by the City Engineer that shall protect the applicant as
a named insured and the City, and other City officials, officers,
and employees as additional insureds from class claims which may arise
from operations under the permit, whether such operations are by the
applicant, its officers, directors, employees and agents, or any subcontractors
of the applicant. The City’s additional insured status shall:
(i) be limited to bodily injury, property, damage or personal and
advertising injury caused, in whole or in part, by applicant, its
employees, agents or other independent contractors or facilities;
(ii) not extend to claims where such coverage is prohibited by law
or to claims arising out of the gross negligence of City, its employees,
agents or independent contractors; and (iii) not exceed applicant’s
indemnification obligation under the permit, if any. 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 applicant operations, facilities, products, services
or use of automobiles, or construction equipment. The amount of insurance
for commercial general liability insurance applying to bodily and
personal injury and property damage shall be two million five hundred
thousand ($2,500,000.00) per occurrence and in the aggregate, but
in no event less than the individual and combined sovereign immunity
limits established by the Section 537.610, RSMo., for political subdivisions;
provided that nothing shall be deemed to waive the City’s sovereign
immunity. Evidence shall be provided which provides that the City
is listed as an additional insured. Permit holder shall provide at
least thirty (30) days’ advance written notice to the City of
cancellation of any required coverage that is not replaced. Notwithstanding
the forgoing, the applicant may, in its sole discretion, self-insure
any of the required insurance under the same terms as required by
this Section. The insurance requirements in this Section or other
otherwise shall not apply to applicant to the extent and for such
period during the permit as the applicant is exempted from such requirements
pursuant to Section 67.1830(6)(a), RSMo., has on file with the City
Clerk an affidavit certifying that the applicant has twenty-five million
dollars ($25,000,000.00) in net assets and the facts otherwise establishing
that the applicant is therefore so exempt.
11. Advertising, signs or extraneous markings. The permit holder shall
not place or cause to be placed any sort of signs, advertisements
or other extraneous markings, whether relating to applicant or any
other person or entity, on the public rights-of-way; provided, however,
the permit holder and each contractor or subcontractor thereof shall,
at all times while performing facilities work, display signage readily
visible and with print a font size not less than four and one-half
(4 1/2) inches and no greater than six (6) inches, identifying the
facilities owner for whom the facilities work is being performed.
[Ord. No. 1209 §1, 8-29-2007]
A. Performance Bond.
1. Prior to any facilities work in the public rights-of-way, a permit
holder shall establish in the City's favor a performance bond or letter
of credit in an amount determined by the City Engineer as necessary
to ensure the permit holder's faithful performance of the facilities
work. Differences in bond requirements, including provisions for self-insurance
or provisions for a single continuing bond where facilities work is
conducted by the same applicant under numerous permits, may be established
by regulation based on the extent or nature of the facilities work
and the past performance of the applicant. In lieu of a performance
bond, permit holder may provide an acceptable letter of credit with
the approval of the City Engineer.
a. Five hundred dollars ($500.00) cash shall be deposited with the City
for each permitted instance of facilities work occurring behind the
curb.
b. One thousand five hundred dollars ($1,500.00) cash deposit or performance
bond shall be established for each permitted instance of facilities
work occurring in or under street pavement.
2. In the event an applicant fails to complete the facilities work in
a safe, timely and competent manner, there shall be recoverable, jointly
and severally from the principal and surety of the bond, any damage
or loss suffered by the City as a result, plus a reasonable allowance
for attorney's fees, up to the full amount of the bond or letter of
credit.
3. Upon completion of the facilities work to the satisfaction of the
City Engineer, the City Engineer shall eliminate the bond or reduce
its amount after a time appropriate to determine whether the work
performance was satisfactory, which time shall be established by the
City Engineer considering the nature of the work performed.
4. A performance bond shall be issued by a surety acceptable to the
City and shall contain the following endorsement:
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"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."
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5. In the event that an excavation is not refilled within a reasonable
time after it is ready for refilling, the City Engineer shall notify
the permit holder making the excavation that if such excavation is
not filled within four (4) days, it shall be filled by the City. The
charge for the cost of such work shall be paid by the permit holder
within ten (10) days after completed and no additional permit shall
be issued to that person after that time, unless such charge has been
paid.
6. In the event that the applicant fails to backfill, repair or repave
any excavations made within the public rights-of-way, the City Engineer,
at his/her discretion, shall repair said cut with City employees or
contract the repair to be made and charge the applicant for the full
contract cost of repair. If the City makes the repair with City employees,
the charges shall be based on the unit price paid on the most recent
street improvement or pavement repair contract entered into by the
City.
B. Cost Recovery. In the event the City incurs additional costs
as a direct result of an unauthorized action or an inaction by any
person and/or facilities owner, the City shall have the right to recover
from that owner or person any and all documentable costs incurred
including, but not limited to, the identification of undocumented
facilities, completion of improper facilities work, long-term structural
damage, construction delay fees and penalties, fees paid to other
agencies and any other documentable costs incurred by the City within
the public rights-of-way.
C. Penalties. For each violation of provisions of this Chapter
or a permit granted pursuant to this Chapter as to which the City
has given notice to applicant as provided in this Chapter, penalties
may be chargeable to the applicant at a rate not exceeding five hundred
dollars ($500.00) per day for so long as the violation continues.
[Ord. No. 1209 §1, 8-29-2007]
Whenever, by reason of present or future City use of public
right-of-way, a public improvement is undertaken by the City or changes
in the grade or widening of a street or in the location or manner
of constructing a water pipe, drainage channel, sewer or other City-owned
underground or above ground structure is made and it is deemed necessary
by the City to move, alter, change, adapt or conform the underground
or above ground facilities of a facilities owner, the facilities owner
shall make the alterations or changes, on alternative rights-of-way
provided by the City, if available, as soon as practicable after being
so ordered in writing by the City at the facility owner's expense
without claim for reimbursement or damages against the City. Failure
to promptly comply with such written order shall be deemed unlawful.
The City will endeavor to minimize the interference with previously
installed facilities when conducting its own facilities work.
[Ord. No. 1209 §1, 8-29-2007]
A. A facilities
owner who has determined to discontinue its use of certain facilities
in the City must either:
1. Provide information satisfactory to the City Engineer that the facilities
owner's obligations for its facilities in the right-of-way under this
Chapter have been lawfully assumed by another facilities owner; or
2. Submit to the City Engineer a proposal and instruments for transferring
ownership of its facilities to the City. If a facilities owner proceeds
under this clause, the City may, at its option:
b. Require the facilities owner, at its own expense, to remove the above
ground facilities, or
c. Require the facilities owner to post a bond in an amount sufficient
to reimburse the City for reasonably anticipated costs to be incurred
in removing the facilities.
B. Facilities of a facilities owner who fails to comply with Section
530.060(A) and which, for two (2) years, remains unused shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. The City may exercise any remedies or rights it has at law and in equity including, but to limited to:
1. Abating the nuisance at the facilities owner's expense;
2. Taking possession of the facilities and restoring it to a usable
condition; or
3. Requiring removal of the facilities by the facilities owner or by the facilities owner's surety under the bond required by Section
530.040.
C. Any
facilities owner who has unused facilities in any right-of-way shall
remove the facilities from that right-of-way during the next scheduled
excavation, unless this requirement is waived by the City Engineer.
[Ord. No. 1209 §1, 8-29-2007]
A. Compliance With Laws. Each applicant shall comply with all
applicable Federal and State laws as well as City ordinances, resolutions,
rules and regulations heretofore and hereafter adopted or established.
B. Applicant Subject To Other Laws, Police Power.
1. An applicant shall at all times be subject to all lawful exercise
of the Police powers of the City including, but not limited to, all
powers regarding zoning, supervision of the restoration of the right-of-way
and control of public rights-of-way.
2. No action or omission of the City shall operate as a future waiver
of any rights of the City under this Chapter.
3. Except where rights are expressly granted or waived by a permit,
they are reserved, whether or not expressly enumerated. This Chapter
may be amended from time to time and in no event shall this Chapter
be considered a contract between the City and an applicant such that
the City would be prohibited from amending any provision hereof.
C. Future Uses. In placing any facility or allowing it to be
placed in the public right-of-way, the City is not liable for any
damages caused thereby to a facility which is already in place.
D. Franchise Not Superseded. Nothing herein shall be deemed
to relieve an applicant or the City of the provisions of an existing
franchise, license or other agreement or permit.
E. Rights And Remedies.
1. The exercise of one (1) remedy under this Chapter shall not foreclose
use of another, nor shall the exercise of a remedy or the payment
of damages or penalties relieve an applicant of its obligations to
comply with its permits. Remedies may be used alone or in combination;
in addition, the City may exercise any rights it has at law or equity.
2. The City hereby reserves to itself the right to intervene in any
suit, action or proceeding involving any provisions of this Chapter.
3. No applicant shall be relieved of its obligation to comply with any
of the provisions of this Chapter by reason of any failure of the
City to enforce prompt compliance.
F. Incorporation By Reference. Any permit granted pursuant
to this Chapter shall by implication include a provision that shall
incorporate by reference this Chapter into such permit as fully as
if copied therein verbatim.
G. Force Majeure. An applicant shall not be deemed in violation
of provisions of this Chapter where performance was rendered impossible
by acts of God or the public enemy, epidemics, war or riots, civil
disturbances, quarantine restrictions, labor strikes, freight embargoes,
fires, floods, unusually severe weather or other natural catastrophes
beyond the applicant's control and a permit shall not be revoked or
an applicant penalized for such non-compliance, provided that the
applicant takes immediate and diligent steps to bring itself back
into compliance and to comply as soon as possible under the circumstances
with its permit without unduly endangering the health and safety of
the applicant's employees or property, the public, public rights-of-way,
public property or private property.
H. Calculation Of Time. Unless otherwise indicated, when the
performance or doing of any act, duty, matter or payment is required
under this Chapter or any permit and a period of time is prescribed
and is fixed herein, the time shall be computed so as to exclude the
first (1st) and include the last day of the prescribed or fixed period
of time.
I. Severability. If any Section, Subsection, sentence, clause,
phrase, term, condition or provision of this Chapter shall, to any
extent, be held to be invalid, unenforceable or unconstitutional by
any court or administrative agency of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision
and such holding shall not affect the validity of the remainder hereof
and shall be valid in all other respects and continue to be effective.
In the event of a subsequent change in applicable law so that the
provision that has been held invalid is no longer invalid, said provisions
shall thereupon return to full force and effect without further action
by the City and shall thereafter be binding on the applicant and the
City. If a permit, right or registration shall be considered a revocable
permit as provided herein, the permit holder must acknowledge the
authority of the Board of Aldermen to issue such revocable permit
and the power to revoke it. Nothing in these ordinances precludes
the City from requiring a franchise agreement with the applicant,
as allowed by law, in addition to requirements set forth herein.
J. Eminent Domain. Nothing herein shall be deemed or construed
to impair or affect, in any way or to any extent, any right the City
may have to acquire the property of the applicant through the exercise
of the power of eminent domain.
K. Annexation. The provisions of this Chapter shall specifically
apply to any lands or property annexed as of the date of such annexation.
L. Savings Clause. Nothing contained herein shall in any manner
be deemed or construed to alter, modify, supersede, supplement or
otherwise nullify any other ordinances of the City or requirements
thereof, whether or not relating to in any manner connected with the
subject written hereof, unless expressly provided otherwise herein
or hereafter.
[Ord. No. 1604 §1, 4-4-2012]
A. Purpose. The purpose of this Section is to provide consistency,
equity, and predictability in determining what action on each vacation
application would best serve and protect the public interest, and
expresses the City's values related to right-of-way vacations. The
default position is that unless there are compelling reasons to vacate,
the City will retain the right-of-way for future public purposes.
B. Procedures.
1. Application. Applications for any right-of-way vacation
shall be made on an application form provided by the City Engineer.
Each application shall be filed with the City Engineer and shall be
accompanied by the data prescribed on the form and any additional
information deemed necessary by the City Engineer. The application
shall be accompanied by the fee set forth in this Section, payable
to the City to cover the costs and expenses associated with the application.
No part of such fee shall be returnable to the applicant.
An application for a vacation of right-of-way shall be signed
by all fee owners of the real property burdened by the right(s)-of-way
to be vacated and by the applicant, if other than the fee owners.
The application shall be submitted to the City Engineer and shall
contain or be submitted concurrently with the following information:
a. A legal description of the right(s)-of-way to be affected, including
one (1) printed copy and one (1) electronic copy in a Microsoft Word
compatible format;
b. A scaled map of such right(s)-of-way, correlated with its legal description
and clearly showing the right(s)-of-way's location;
c. The names, addresses and telephone numbers of the applicant(s), all
the fee owners of the property(s) burdened by the right(s)-of-way,
and copies of the deeds on file with the office of the St. Charles
County Recorder of Deeds evidencing such ownership;
d. Copies of all deeds, plats, easements, instruments of dedication
or such other records or documents on file with the office of the
St. Charles County Recorder of Deeds evidencing the location, nature
and extent of the right(s)-of-way subject to the application;
e. The date of filing with the City Engineer;
[Ord. No. 2208, 9-21-2022]
f. The present zoning for the real property;
g. The existing usee(s) and proposed use(s) of such real property;
h. The notarized signature(s) of the applicant(s), fee owner(s) and
agents of the fee owner(s), if any, certifying the accuracy of the
required information. If the applicant(s) or fee owner(s) of the real
property are a trust or business entity, then proof of the authority
of the party executing the application must be provided by way of
resolution, minutes, trust agreement, operating agreement, or other
legally appropriate means.
2. Prior to consideration by the Board of Aldermen, all applications
for vacation of public rights-of-way shall be submitted to the Planning
and Zoning Commission for its review and recommendation.
Prior to the formal process to petition the Board of Aldermen
for the vacation, the City Engineer will make a threshold assessment
of the feasibility of a potential vacation whenever possible. As part
of this threshold assessment, the City Engineer will consider the
impact of the proposed vacation on right-of-way functions and may
recommend that the petition not proceed.
Following the review of a vacation petition by the City Engineer
and the Planning and Zoning Commission, the City Engineer will make
a recommendation to the Board of Aldermen, including conditions to
address the impacts of the proposed vacation and to ensure the provision
of the required public benefit. This recommendation will include comments
from the Planning and Zoning Commission, and may include a recommendation
whether to grant or deny the vacation.
C. Review. There is no right under law to vacate or to develop
public right-of-way. In order to do so, a discretionary legislative
approval must be obtained from the Board of Aldermen and the Board
may not vacate right-of-way unless it determines that to do so is
in the public interest. Part of that determination is to assure that
potential development and use of the vacated right-of-way would serve
the public interest in a significant way. The Board is not bound by
land use policies or this Section in making right-of-way vacation
decisions and may condition or deny vacations as it may deem necessary,
in its sole discretion, to protect the public interest. The City will
generally not support vacations that do not advance City planning
goals, particularly if inconsistent with the desired intensity of
development and preferred uses. In making this determination, the
Board of Aldermen and City reviewers will weigh three (3) components
of the public interest described as follows:
1. Public trust functions. The City will consider the
impact of the proposed vacation upon the circulation, access, utilities,
light, air, open space, and views provided by the right-of-way;
2. Land use impacts. The City will consider the land
use impacts of the proposed vacation. Potential development involving
the vacated right-of-way must be consistent with City land use policies
for the area in which the right-of-way is located; and
3. Public benefit. Benefits accruing to the public
from the vacation of the right-of-way will be considered. The proposal
must provide a long-term benefit for the general public.
D. Fees. One hundred dollar ($100.00) application fee. Additional
costs and fees may also include the costs and fees associated with
a vacation to include an appraisal fee, a vacation fee (based on the
appraised value of the property), professionally prepared project
drawings and plans, maps and plot plans, and traffic analysis.
E. Administrative Policies. The Mayor and/or City Administrator,
with the consultation of the City Engineer, are hereby empowered to
prescribe and maintain such additional forms, policies, procedures
and specific requirements as may be necessary to effectuate the provisions
of this Section.