[Ord. No. 422 §1, 2-5-2001]
The Municipal Code of the City of Foristell is hereby amended by the addition of a new Chapter 420, which shall be known as the Rights-of-Way Use Code and shall read as follows.
[Ord. No. 422 §2, 2-5-2001]
To the extent permitted by law, this Chapter shall apply to
all persons desiring to construct, operate or maintain facilities
in, across, under or over public rights-of-way within the City.
[Ord. No. 422 §3, 2-5-2001]
Definitions And Word Usage. 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 included 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.
The specific person applying for and receiving a permit for
facilities work.
The form designed by the City of Foristell, which an applicant
must use to obtain a permit to conduct facilities work within, across,
under and over the City's rights-of-way.
The Governing Body of the City of Foristell, Missouri.
The acceptance and review of one (1) application with multiple
projects to be conducted within a calendar year.
The City of Foristell, Missouri, and its agencies, departments,
agents and employees acting within their respective areas of authority.
The City Administrator or his/her designee.
The City Engineer or his/her designee.
Any pavement for streets, sidewalks, alleys, paths, any curbs,
gutters, drainage structures, storm sewers, swells, ditches, sanitary
sewers, manholes, water mains, water service lines, water meters,
valves, street lights, traffic signals, cables, conduits, panels,
irrigation systems, bridges, culverts or signs in which the City holds
a property interest.
Any person contracting with a facilities owner or permit
holder to do work within the public right-of-way.
A condition that:
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
minims 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.
Any conduit, valves, meters, duct, line, pipe, wire, hose,
manhole, pullbox, fiber optic 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.
A person who owns, leases or otherwise controls the use of
facilities.
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 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.
Hours 8:00 A.M. to 4:00 P.M. Central Standard Time, Monday
through Friday. Hours of operation observed by City Hall.
A permit granted by the City to do facilities work within
the public rights-of-way.
Any person to whom a permit has been granted by the City
under this Chapter.
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.
The status of a person that has not complied with the conditions
of this Chapter.
One (1) year from the date that a person has been notified
in writing that they have been put on probation.
A written plan or 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.
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
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. 422 §4, 2-5-2001]
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 Subsection (B)(1) of this Section. 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 Foristell 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 a particular facilities owner to whom contact is attempted receives
no response, the City Engineer will take whatever action he/she deems
necessary in order to respond to the emergency of which shall be borne
by the person whose action or inaction occasioned the emergency.
2.
Except in 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 of 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.
As 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.
An engineering 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 by the City.
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:
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 because of individual service connections shall be in accordance with this Section 420.040 and Appendix A of this Chapter, which is on file in the City offices.
5.
Upon approval of such application, and before 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 Subsection (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 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 permit, the
City Engineer shall do the following:
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, 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 (7)(a) hereof, or any other provisions of this Subsection applies, the City Engineer may, consistent with the time requirements set forth in this Subsection (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.
8.
An applicant receiving a permit shall promptly notify the City Engineer
of any changes in the information submitted in his/her 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 ground 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 ground 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; and
k.
Failure to pay for damages caused to any City facilities from prior
facilities work by the applicant or facilities owner.
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 conditions 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 travelling 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 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 appeal
to any final decision to the Board of Aldermen, who shall consider
the appeal within thirty (30) days or at the next regularly 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.
Permit fee shall be the same as the excavation permit fees currently
in effect.
3.
Fees for private connections for water and sewer service shall be
in conformance with the City's Water and Sewer Ordinances.
4.
All permit fees shall be doubled during a probationary period.
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 Statue, ordinance, rule or
regulation or any condition of the permit. A violation by 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 Subsection (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 appeal 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 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) 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 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. 422 §5, 2-5-2001]
A.
Oversight Of Facilities Work.
1.
Permit holders shall comply with all City Codes and ordinances.
2.
The permit holder shall at all times conduct operations and perform
the facilities work in a manner that will ensure the least possible
obstruction to traffic, as outlined in and in accordance with the
Manual of Uniform Traffic Control Devices. 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 of Foristell 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 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
inspect the entire facilities work site. If any work is found 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 surplus
and discarded materials, equipment, rubbish and temporary structures.
C.
Unacceptable And Unauthorized Work.
1.
The City Engineer shall have full access to all portions of facilities
work, may issue stop work orders and corrective orders to prevent
unauthorized work. Such corrective or stop work orders shall state
that work not authorized by the permit is being carried out, summarize
the unauthorized work and provide a period of not longer that 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. 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.
2.
Any person who engages in facilities work in the public right-of-way,
who has not received a valid permit from the City, shall be subject
to all penalties provided in this Chapter. Except in those instances
where facilities work must be performed on an emergency basis, the
City may, in its discretion, at any time until a permit is secured,
order the facilities work ceased and do any of the following:
a.
Require such person to apply for a permit within thirty (30) days
of receipt of a written notice from the City that a permit is required;
b.
Require such person to remove its property and restore that affected
public right-of-way to a condition satisfactory to the City; or
c.
Take any other action it is entitled to take under applicable law
including, but not limited to, filing for and seeking damages for
trespass.
3.
Records. Facility owners that maintain more than
one thousand (1,000) lineal feet of facilities within the public right-of-way
shall keep complete and accurate maps and records of the location
of their facilities and shall, within twelve (12) months of the passage
of this Chapter, file with the City Engineer a current base map of
those portions of their system which lie within, run through or over
public rights-of-way. Base maps furnished to the City Engineer shall
show the location of facilities and their relationship to existing
streets or public rights-of-way. Base map updates shall be provided
to the City Engineer annually by January fifteenth (15th). Applicants
shall submit updated plans to the City Engineer for approval whenever
a project involves new construction or the excavation of public rights-of-way.
Such maps are intended to be proprietary to the owners of the facilities
and not owned by the City, but are provided for the internal use by
the City. The City, to the extent permitted by law, will not provide
such maps to third (3rd) parties.
4.
Assignment of permit. The rights granted by a permit
inure to the benefit of applicant. The rights shall not be assigned,
transferred, sold or disposed of, in whole or in part, by voluntary
sale, merger and consolidation or otherwise by force or involuntary
sale without the prior, express written consent of the City. Any such
consent shall not be withheld unreasonably and shall not be required
for assignment to entities that control, are controlled by, or are
under common control with applicant.
5.
Termination of permit and removal in installations. Upon termination of a permit, the City may order the removal of
any of the applicant's facilities work performed under the permit,
and if applicant should refuse, the City may remove such work at applicant's
expense.
D.
Construction Standards.
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.
3.
All new facilities shall be constructed underground expect 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.
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.
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.
In the discretion of the City Engineer, prior to directional boring
critical existing City facilities shall be located by digging a hole
large enough to visually inspect the facilities at proposed crossing
locations. To prevent damage to existing facilities, the boring operations
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.
Additional requirements concerning the restoration and maintenance
of the public right-of-way during and after construction of the facilities
work is included in Appendix A, which is on file in the City offices.
[Ord. No. 422 §6, 2-5-2001]
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.
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
permit holder shall pay the charge for the cost of such work 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 the 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 the
City employees, the charges shall be based on the unit price 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 documented 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 documented 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. 422 §7, 2-5-2001]
Whenever, by reason of present or future City use of the 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. 422 §8, 2-5-2001]
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 Engineer. If a facilities
owner proceeds under this clause, the City may, at its option:
B.
Facilities of a facilities owner who fails to comply with Subsection (A) hereof and which, for two (2) years, remains unused shall be deemed to be abandoned. Abandoned facilities are deemed a nuisance. The City may exercise any remedies or rights it has at law and in equity including, but not limited to:
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. 422 §9, 2-5-2001]
A.
Indemnification And Minimum Limits Of Insurance. Permit
holder and its contractor shall maintain limits no less than those
outlined in Appendix A, which is on file in the City offices.
B.
Compliance With Laws. Each applicant shall comply with all
applicable Federal and State laws as well as City ordinance, resolutions,
rules and regulations heretofore and hereafter adopted or established.
C.
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.
D.
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.
E.
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.
F.
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 because of any failure of the City
to enforce prompt compliance.
G.
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.
H.
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 embargo's,
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 take 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.
I.
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.
J.
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 the 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 recoverable
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.
K.
Technical Specifications Applicable To City. Technical specifications
outlined in Appendix A, which is on file in the City offices, relating
to facilities work shall be fully applicable to work performance by
the City and its departments. As a matter of public policy, the City
shall utilize the Missouri One-Call system to notify registered facilities
owners, prior to the City working in the public rights-of-way.
L.
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.
M.
Annexation. The provisions of this Chapter shall specifically
apply to any lands or property annexed as of the date of such annexation.
N.
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 subject
written hereof, unless expressly provided otherwise herein or hereafter.
