[Ord. No. 2591 §§ 1
— 2, 8-23-2016[1]]
This Article shall be known and may be cited as the "Rights-of-Way
Usage Code."
[1]
Editor's Note: Section 1 changed the title of this Chapter from "Excavations and Grading" to "Rights-of-Way Usage and Grading." Additionally, former Article I, Excavations, consisting of Sections 520.010 through 520.120, which derived from R.O. 2008 §§ 70.010 — 70.060; Ord. No. 585, 1-23-1962; Ord. No. 624, 11-13-1962; Ord. No. 1406, 1-11-198; Ord. No. 1819 § 1, 5-24-1994; Ord. No. 1858, 5-23-1995; Ord. No. 2167, 3-25-2003, was repealed by § 2 of Ord. No. 2591.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
A.
The purposes and intent of this Article are to:
1.
Manage rights-of-way work in the City of Olivette to the extent
permitted by State and Federal law to ensure the safe and aesthetic
placement of facilities and the restoration of any ROW cuts or excavation
and so protect the public health, safety, and welfare;
2.
Establish procedures, standards, and requirements for, among
other things: (a) the registration of persons having facilities within
the rights-of-way, and persons desiring to do so, (b) work performed
in the City's rights-of-way, (c) facilities placed within the
ROW, and (d) security for such work and the removal of abandoned facilities;
and
3.
Comply with applicable State and Federal laws and regulations
regarding facilities or services in public or private rights-of-way.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
The following terms shall have the following meanings unless
otherwise defined by context:
Any facilities located within the public rights-of-way and
owned by the City.
The manager or administrator of the City or such other person designated by the City to hear appeals as provided in Section 520.070 hereof.
The City's Public Works Director or Planning and Community
Design Director, as context requires, or such other designated person.
Includes but is not limited to ROW work made necessary by
exigent circumstances to repair, control, stabilize, rectify, or correct
an unexpected or unplanned outage, cut, rupture, leak, or any other
failure of a facility when such failure results or could result in
danger to the public or a material delay or hindrance to the provision
of service.
A network or system, or any part thereof, used for providing
or delivering a service and consisting of one (1) or more lines, pipes,
wires, cables, fibers, conduit facilities, cabinets, poles, vaults,
pedestals, boxes, appliances, antennas, transmitters, radios, towers,
gates, meters, appurtenances, shelters, or other equipment.
An individual, partnership, limited liability corporation
or partnership, association, joint stock company, trust, organization,
corporation, or other entity, or any lawful successor thereto or transferee
thereof.
Any person having ownership or control of facilities located
within the rights-of-way.
A street, highway, lane, path, alley, sidewalk, boulevard,
drive, bridge, tunnel, parkway, waterway, public easement, or sidewalk
in which the City does not now or hereafter holds any interest.
A permit granted by the City to a ROW user for ROW work.
A person performing ROW work within the rights-of-way. A
ROW user shall not include ordinary vehicular or pedestrian use.
Action by a ROW user to: (i) install, change, replace, relocate,
remove, maintain or repair facilities within the rights-of-way, or
(ii) to conduct work of any kind within or adjacent to the rights-of-way
that results in an excavation, obstruction, disruption, damage or
physical invasion or impact of any kind to the rights-of-way or the
use thereof. The routine inspection of facilities shall not be considered
ROW work unless the inspection requires the conduct of any of the
activities or actions noted herein.
Unless otherwise restricted herein, the surface, the air
space above the surface, and the area below the surface of any private
street, for the purposes defined herein, and any public street, highway,
lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway,
waterway, public easement, or sidewalk in which the City holds any
interest, which, consistent with the purposes for which it was dedicated,
may be used for the purpose of installing and maintaining facilities.
"Rights-of-way" shall not include: (i) City facilities or the City's
property other than ROW, such as City-owned or operated buildings,
parks, or other similar property, (ii) airwaves used for cellular,
non-wire telecommunications or broadcast services, (iii) easements
obtained by ROW users on private property, (iv) railroad rights-of-way
or ground used or acquired for railroads, (v) facilities owned and
used by the City for the transmission of one (1) or more services,
or (vi) streets owned or under the jurisdiction of St. Louis County
or the Missouri Department of Transportation. No reference herein
to "rights-of-way" shall be deemed to be a representation or guarantee
by the City that its interest or other right to control the use of
such property is sufficient to permit its use for the delivery of
service.
Providing or delivering an economic good or an article of
commerce, including, but not limited to gas, telephone, cable television,
Internet, open video systems, video services, alarm systems, steam,
electricity, water, telegraph, data transmission, petroleum pipelines,
sanitary or storm water sewerage or any similar or related service,
to one (1) or more persons located within or outside of the City by
use of facilities located within the rights-of-way.
In, along, under, over, or across rights-of-way.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
A.
Registration Required. Any person desiring to become a person having
facilities within the ROW and any person having facilities within
the ROW must register with the City.
B.
Effectiveness Of Registration. Registration hereunder by an eligible
person shall remain effective for so long as that person remains eligible,
unless terminated by the person or the City hereunder. Any registration
of an ineligible person shall be void from the date of ineligibility.
C.
Registration Characteristics.
1.
A valid registration hereunder authorizes the issuance of ROW
permits to the registered person in accordance with this Code. It
does not expressly or implicitly authorize ROW work without a ROW
permit or work on private property without owner consent through eminent
domain or otherwise (except for use of compatible easements pursuant
to law) or to use publicly or privately owned facilities without a
separate agreement with the owners.
2.
A valid registration hereunder shall not eliminate the need
to obtain any franchise, license, permit, easement, lease, or other
contract for the privilege of: (i) transacting and carrying on a business
within the City as may be generally required by the ordinances and
laws of the City, (ii) attaching devices to poles or other structures,
whether owned by the City or other person, or (iii) performing ROW
work within a private street.
3.
A valid registration grants no exclusive or vested rights to
occupancy within the rights-of-way other than those rights granted
by this code or its administration.
D.
Registered Person Subject To Other Laws.
1.
A person required to register shall at all times be subject
to and shall comply with all applicable Federal, State and local laws
and shall at all times be subject to all lawful exercise of the police
power of the City, including but not limited to all powers regarding
planning, zoning, supervision of construction, assurance of equal
employment opportunities, control of rights-of-way and consumer protection.
2.
Registration hereunder shall not deprive any person of any rights
or obligations imposed by any previously existing franchise, license
or contract, nor shall it impose any obligations on any such person
in addition to those included in any previously existing franchise,
license or contract, except to the extent allowed by law.
3.
Nothing in this code shall be construed to prohibit the grant
or renewal of any franchise by the City as may be allowed or required
by State or Federal Law.
4.
Nothing in this code shall be construed or deemed to supersede
any applicable State or Federal law or any applicable regulation issued
by a State or Federal agency, including, but not limited to, the Missouri
Public Service Commission and the Federal Communications Commission.
In the event of any conflict between such laws or regulations and
this code, the applicable State or Federal law or regulation shall
apply.
E.
Failure To Register. Any person who has not registered within ninety
(90) days of the effective date of this code shall nonetheless be
subject to all requirements of this code, including, but not limited
to, its provisions regarding ROW permits, construction and technical
standards and fees, except as otherwise provided herein. In its discretion
and to the extent allowed by law, the City at any time may:
1.
Require such person to register within thirty (30) days of receipt
of a written notice to such person from the City that registration
is required;
2.
Require such person to remove its facilities from the rights-of-way
and restore the affected area to a condition satisfactory to the City
within a specific time period;
3.
Direct municipal personnel to remove the facilities from the
rights-of-way and restore the affected area to a condition satisfactory
to the City and charge the person the costs thereof, including by
placing a lien on the person's property as provided in connection
with abating nuisances; or
4.
Take any other action it is entitled to take under applicable
law.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
A.
Requirements And Processing.
1.
Registration shall be accomplished in the form of a letter to
the City filed with the Director.
2.
To be valid, the registration letter must be signed by an authorized
representative of the registering person and contain all required
information and be accompanied by a filing fee established by the
City.
3.
At any time the Director determines a registration letter does
not comply with this code, the Director may return it to a point of
contact identified therein with a written explanation of the reason(s)
for such return. Filing fees shall not be refunded. Failure to return
a registration letter shall not validate an incomplete or otherwise
invalid or void registration letter.
B.
Contents Of Registration Letter. A registration letter shall contain
or be accompanied by the information required herein. All such information
received by the City shall be public, unless confidentiality is requested
and permitted by the Missouri Open Meetings Law and other applicable
State and Federal law. The information required shall include:
1.
Name, address and legal status of the registering person;
2.
Name, title, address, telephone number, e-mail address and fax
number of individual(s) authorized to serve as the point of contact
between the City and the registering person so as to make contact
possible at any time (i.e., twenty-four (24) hours per day, seven
(7) days per week);
3.
Description of the general uses made or to be made of the facilities
located within the rights-of-way by the registering person, e.g.,
provision of service(s), transfer or lease of facilities (or portion
thereof, including bandwidth) to another person, use of the facilities
to transverse the City, construction of facilities to be used at a
later date, etc.;
4.
Description of all services provided or to be provided by the
registering person to any person located in the City through facilities
located within the rights-of-way and an explanation of the registering
person's legal qualifications to provide such services, including
copies of supporting documentation such as relevant certificates or
orders from the Federal Communications Commission, Missouri Secretary
of State and/or Missouri Public Service Commission or pertinent rules
or Statutes;
5.
Name and address of any and all other persons providing service(s)
to any person located in the City through the registering person's
facilities located within the rights-of-way and a general description
of such service(s); and
6.
Current certificates of insurance in accordance with this code.
C.
Notice Of Change. Within thirty (30) days of any changes in the information
set forth in or accompanying its registration letter, a registered
person shall notify the City of any such change. Such notices shall
be submitted and processed in the same manner as an initial registration,
except the filing fee shall not be required.
D.
Registration Index. The Director shall maintain an index of all registered
persons and their point(s) of contact.
E.
Termination Of Registration.
1.
The City shall have the right to terminate a registration for
a substantial and ongoing failure to comply with this code or other
applicable law or for defrauding or attempting to defraud the City.
To invoke the provisions of this Section, the Director shall give
the person written notice of such intent. If within thirty (30) calendar
days following such written notice from the City, the person has not
completed corrective action or corrective action is not being actively
and expeditiously pursued to the satisfaction of the Director, the
Director may commence a proceeding to consider terminating the person's
registration, giving written notice of the reasons therefor.
2.
Prior to terminating a registration, the Director shall hold
a hearing, after giving at least ten (10) calendar days' notice
to the person, at which time the person shall be given an opportunity
to be heard. Following the hearing, the Director may determine whether
to terminate the registration based on the information presented at
the hearing and other information of record. If the Director determines
to terminate a registration, the decision shall be in writing setting
forth the reasons therefor. The Director may make such decision conditional
on a person's failure to resolve outstanding problems or take
appropriate steps to resolve such problems within a specific period
of time. A copy of such decision shall be provided to the person.
3.
Once a registration has been terminated by the Director, the
person may not register again except upon express written approval
by the City Manager, which approval shall be withheld absent clear
and convincing evidence that the person has remedied all previous
violations and is in full compliance with all laws and will not in
the future violate this code or defraud the City.
4.
Registration of a public utility that has been legally granted
access to the right-of-way shall not be terminated.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
A.
Application Requirements.
1.
Any person desiring to perform ROW work must first apply for
and obtain a ROW permit, in addition to any other building permit,
license, easement, franchise, or authorization that may be required
by law. In the event of a need for emergency ROW work, the person
conducting the work shall as soon as practicable notify the City of
the location of the work and shall apply for the required ROW permit
as soon as practicable following the commencement of the work, not
to exceed the third business day thereafter. The Director may design
and issue general permits for emergency ROW work for several different
locations or throughout the City.
2.
No person desiring to become a person having facilities within
the ROW, and no person having facilities within the ROW, who has failed
to register with the City shall be granted a ROW permit, except as
otherwise provided or allowed by ordinance, franchise, license, or
written contract with the City.
3.
An application for a ROW permit shall be submitted to the Director.
The Director may design and make available standard forms for such
applications, requiring such information as allowed by law and as
the Director determines in his or her discretion to be necessary and
consistent with the provisions of this Chapter and to accomplish the
purposes of this Chapter. Each application shall at minimum contain
the following information for the proposed ROW work, unless otherwise
waived by the Director:
a.
The name, address and telephone number of a representative whom
the City may notify or contact at any time (i.e., twenty-four (24)
hours per day seven (7) days per week) concerning the work;
b.
If different from the applicant, the name, address, and telephone
number of the person on whose behalf the proposed work is to be performed;
c.
A description of the proposed work, including a conceptual master
plan and an engineering site plan or other technical drawing or depiction
showing the nature, dimensions, location, and description of the applicant's
proposed work or facilities, their proximity to other facilities that
may be affected by the proposed work, and the number of street crossings
and their locations and dimensions, if applicable;
d.
Projected commencement and termination dates and anticipated
duration of the work or, if such dates are unknown, a representation
that the applicant shall provide the Director with reasonable advance
notice of such dates once they are determined;
e.
If the applicant is, or is acting on behalf of, a person having
facilities within the ROW or a person desiring to become a person
having facilities within the ROW, verification that the applicant
or such person has registered with the City and that the information
included in that registration is accurate as of the date of the application;
f.
Proof of security for the work and restoration of the ROW as provided in Section 520.080, below; and
g.
For above-ground facilities:
(1)
Technical information, including:
(a)
A detailed description of the physical dimensions
and appearance of the proposed facilities;
(b)
The chemical composition of any battery contained
within the proposed facilities;
(c)
Any hazardous material contained within the proposed
facilities;
(d)
The potential for interference with the facilities
of other wireless transmission providers;
(e)
In the discretion of the Director, an engineering
analysis of structural failure scenarios resulting from excess wind
and seismic overloading, prepared by a licensed professional engineer;
(2)
Certification, by a duly authorized representative
of any person owning a facility, utility pole or other structure within
the ROW upon which the applicant's facility is to be attached
or secured, that:
h.
Proof that the ROW user has the legal authority to perform ROW
work within said street and further that the City is authorized thereby
to regulate same through this Code. In the absence of such proof,
the ROW user shall provide for the assumption of all risk and the
indemnification of the City for any resulting loss or damage, in a
form acceptable to the City Attorney.
4.
The information required by the application may be submitted
in the form maintained by the applicant, provided it is responsive
to the application's requirements, and the applicant shall be
allowed a reasonable amount of time to complete the application based
on the amount of data or information requested or required.
5.
Each such application shall be accompanied by the following
payments:
a.
An application fee approved by the City to cover the cost of
processing the application;
b.
A deposit, if applicable, for any cut into or excavation of the ROW, as provided in Section 520.080 hereof; and
c.
Any other amounts due to the City from the applicant, including
but not limited to prior delinquent fees, costs, and any loss, damage,
or expense suffered by the City because of the applicant's prior
work in the rights-of-way or for any emergency actions taken by the
City, but the Director may modify this requirement to the extent the
Director determines any such fees to be in good-faith dispute or beyond
the ability of the applicant to control.
6.
Applications shall be reviewed and acted upon within the timeframes
provided in this Article. The City acknowledges that Federal law or
regulations may prescribe deadlines not consistent with those included
in this Article, but the certainty of such Federal deadlines cannot
be effectively ascertained and prescribed herein. It shall be incumbent
upon the applicant to inform the City of any desire to utilize Federal
deadlines and to explain the applicability of same at the time of
application. The Director shall include a Federal deadline option
on the City's form application.
B.
Application Review And Determination.
1.
The Director shall promptly review each application for a ROW
permit that is complete and in compliance with all application requirements.
The Director shall grant or deny all such applications within thirty-one
(31) days of their receipt. Unless the application is denied, the
Director shall issue a ROW permit upon determining that the applicant:
a.
Has submitted all necessary information;
b.
Has paid the appropriate fees; and
c.
Is in full compliance with this Chapter and all other City ordinances.
|
In order to avoid excessive processing and accounting costs
to either the City or the applicant, the Director may establish procedures
for bulk processing of applications and periodic payment of fees to
avoid excessive processing and accounting costs.
|
2.
It is the intention of the City that interference with, damage
to, excavation or disruption of, or the placement of facilities within,
the City's rights-of-way should be minimized and limited in scope
to the extent allowed by law to achieve the purposes of this Chapter.
When reasonable and necessary to accomplish such purposes, the Director
may require as alternatives to the proposed ROW work either less disruptive
methods or different locations for facilities, provided that any required
alternative:
a.
Shall not increase expenses by more than ten percent (10%) of
the applicant's costs for the work as proposed,
b.
Shall not result in a decline of service quality, and
c.
Shall be competitively neutral and non-discriminatory.
|
The Director shall provide to the applicant the reasons why
the required alternative is reasonable and necessary.
|
3.
Upon receipt of an application, the Director shall determine
whether any portion of the rights-of-way will be affected by the proposed
work and whether the interference, disruption, or placement of facilities
will be more than minor in nature. In determining whether the proposed
work is more than minor in nature the Director shall consider the
nature and scope of the work, its location and duration, and its effect
on the rights-of-way, the use thereof, and neighboring properties.
a.
If the applicant can show to the Director's reasonable
satisfaction that the work involves no interference, disruption, excavation,
or damage to, or only minor interference, with, the rights-of-way,
or that the work does not involve the placement of facilities or involves
time-sensitive maintenance, then the Director shall promptly grant
the ROW permit.
b.
If the Director determines that the effect on the rights-of-way
will be more than minor in nature and no exemption under the above
paragraph (3)(a) or any other provision of this Chapter applies, the
Director shall schedule and coordinate the work and grant the ROW
permit accordingly. When reasonable and necessary to accomplish the
purposes of this Chapter, the Director may postpone issuance of a
ROW permit, and may give public notice of the application in an attempt
to identify whether any other person intends to do work in the same
area within a reasonable period of time, so that all ROW work in the
area can be coordinated. Due regard shall be accorded applicants that
are required by any law, rule, regulation, license, or franchise to
provide service to the area defined in the application. The Director
shall not impose any coordination or scheduling requirements that
prevent or unreasonably delay an applicant's access to the ROW
or that create a barrier to entry.
c.
Applicants shall participate in any joint planning, construction
and advance notification of such work, including coordination and
consolidation of any excavation of or disturbance to the rights-of-way,
as directed by the Director. Applicants shall cooperate with each
other and other ROW users and the City for the best, most efficient,
least intrusive, most aesthetic, and least obtrusive performance of
ROW work and use of the ROW.
d.
The Director shall provide contact information permitting applicants
to ascertain whether existing capacity may be available from other
persons utilizing the rights-of-way along the intended path of any
proposed work. The Director shall also maintain indexes of all ROW
permits issued, both by the ROW user and by the affected rights-of-way.
e.
The grant of a ROW permit shall not eliminate the need of an
applicant to obtain: (i) any other permit required by law for the
construction or installation of facilities within the ROW, or (ii)
any other authority necessary for the placement or attachment of facilities
on property other than the ROW.
4.
In addition, the following provisions shall apply to above-ground
facilities:
a.
The design, location, nature, and construction of above-ground
facilities shall be subject to the review and approval of the Director
as provided herein and as otherwise required by law. Such review shall
be non-discriminatory and competitively neutral and approvals shall
not be unreasonably withheld.
b.
In considering the application the Director shall consider the requirements of towers and antennas as contained in Chapter 440 of the Municipal Code and shall apply those requirements to the extent practicable and consistent with the purposes and intent of this code, but no special antenna permit shall be required for the placement of such facilities in the ROW.
c.
The Director may designate certain locations or facilities in
the ROW to be excluded from use by the applicant for its facilities,
including, but not limited to:
(1)
Ornamental or similar specially designed street
lights,
(2)
Designated historic areas,
(3)
Facilities, equipment, structures or locations
that do not have electrical service adequate or appropriate for the
proposed facilities or cannot safely bear the weight or wind loading
thereof,
(4)
Facilities, equipment, structures or locations
that in the reasonable judgment of the Director, are incompatible
with the proposed facilities or would be rendered unsafe or unstable
by the installation, and
(5)
Facilities, equipment, structures or locations
that have been designated or planned for other use or are not otherwise
available for use by the applicant due to engineering, technological,
proprietary, legal or other limitations or restrictions.
d.
The design and placement of above-ground facilities shall:
(1)
Maximize use of structures on which such facilities
already exist;
(2)
Avoid interference with existing driveways, sidewalks,
or other pedestrian or vehicle paths (antennas shall not be located
less than eight (8) feet above grade);
(3)
Be located no closer to similar facilities as may
be necessary for service delivery, so as to minimize adverse visual
impacts and preserve property values;
(4)
Not inhibit the current or future use of the ROW;
(5)
Be a neutral color and shall not be bright, reflective
or metallic (black, gray and tan shall be considered neutral colors,
as shall any color that blends with the surrounding dominant color
and helps to camouflage the facilities);
(6)
Be screened sufficiently to reasonably conceal
the facility, if the facility is taller than three (3) feet in height
or exceeds four (4) square feet in size, with the person having facilities
within the ROW being responsible for the installation, repair, or
replacement of screening materials;
(7)
Not emit any unnecessary or intrusive noise and
shall comply with all other applicable regulations and standards established
by the State, Federal, or local law; and
(8)
Meet such additional physical criteria as reasonably
determined by the Director.
5.
If the application of any provision of this Code excludes locations
for facilities to the extent that the exclusion conflicts with the
reasonable requirements of the applicant, the Director shall cooperate
in good faith with the applicant to attempt to find suitable alternatives.
6.
The grant of a ROW permit shall not eliminate the need to have
obtained a license, permit or other agreement for attaching facilities
to other facilities, poles or other structures, whether owned by the
City or another person.
7.
Nothing in this Code shall be construed to require that the
City any person access to any City facilities or the City's proprietary
property, but the City may enter into separate agreements to allow
such access. Such agreements may include the payment of rent or reasonable
attachment fees for use of City facilities or other City property.
All such agreements shall be non-discriminatory and competitively
neutral among wireless transmission providers.
C.
Permit Issuance And Denial.
1.
Each ROW permit issued by the Director shall include:
a.
Projected commencement and termination dates or, if such dates
are unknown at the time the permit is issued, a provision requiring
the ROW user to provide the Director with reasonable advance notice
of such dates once they are determined;
b.
Length of affected rights-of-way, number of road crossings,
and identification and description of any pavement or curb cuts included
in the work;
c.
Information regarding scheduling and coordination of work, if
necessary;
d.
The location of any of the applicant's facilities, both
those proposed and existing, and the location of any known facilities
owned by another person that may be affected by the proposed work;
e.
An acknowledgement and representation by the applicant to comply
with the terms and conditions of the ROW permit and this Chapter;
and
f.
Such conditions and requirements as are deemed reasonably necessary
by the Director to protect structures and other facilities in the
rights-of-way from damage, to restore such rights-of-way, and any
structures or facilities, to ensure the reasonable continuity and
sight-lines of pedestrian and vehicular traffic, and to protect property
values, the aesthetics of adjoining properties and neighborhoods,
and the public health, safety and welfare.
2.
An applicant receiving a ROW permit shall promptly notify the
Director of any material changes in the information submitted in the
application. The Director may issue a revised ROW permit or require
that the ROW user reapply for a ROW permit in accordance with all
requirements of this code.
3.
ROW permits inure to the benefit of the applicant and the rights
granted thereunder may not be assigned or transferred to any other
person without the written consent of the Director.
4.
The Director may deny an application, if denial is deemed to
be in the public interest, for the following reasons:
a.
Delinquent fees, costs or expenses owed by the applicant;
b.
Failure to provide information required by the application or
this code;
c.
The applicant being in violation of the provisions of this code
or other pertinent and applicable City ordinances;
d.
Failure to return the ROW to its previous condition under previously
issued ROW permits or after prior excavations by the applicant;
e.
For reasons of environmental, historic or cultural sensitivity,
as defined by applicable Federal, State or local law;
f.
For the applicant's refusal to comply with alternative
ROW work methods, locations, or other reasonable conditions required
by the Director; and
g.
For any other reason to protect the public health, safety and
welfare, provided that such denial does not fall within the exclusive
authority of the Missouri Public Service Commission or interfere with
a ROW user's right of eminent domain of private property, and
provided further that such denial is imposed on a competitively neutral
and non-discriminatory basis.
D.
Permit Revocation And Ordinance Violation.
1.
The Director may revoke a ROW permit without fee refund after
notice and an opportunity to cure, but only in the event of a substantial
breach of the terms and conditions of the permit or this Chapter.
Prior to revocation the Director shall provide written notice to the
ROW user identifying any substantial breach and allowing a reasonable
period of time not longer than thirty (30) days to cure the problem,
which cure period may be immediate if certain activities must be stopped
to protect the public safety. The cure period shall be extended by
the Director on good cause shown by the ROW user. A substantial breach,
includes, but is not limited to, the following:
a.
A material violation of a provision of the ROW permit or this
Chapter;
b.
An evasion or attempt to evade any material provision of the
ROW permit or this Chapter, or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its residents;
c.
A material misrepresentation of fact in the ROW permit application;
d.
A failure to complete ROW work by the date specified in the
ROW permit, unless an extension is obtained or unless the failure
to complete the work is due to reasons beyond the ROW user's
control; and
e.
A failure to correct, upon reasonable notice and opportunity
to cure as specified by the Director, work that does not conform to
applicable national safety ordinances, industry construction standards,
this Chapter or any other applicable ordinances, provided that City
standards are no more stringent than those of a national safety ordinance.
2.
Any breach of the terms and conditions of a ROW permit shall
also be deemed a violation of this Chapter, and in lieu of revocation
the Director may initiate prosecution of the ROW user for such violation.
E.
Private Streets. Notwithstanding anything in this Code to the contrary,
the City has no authority to grant a ROW user the right to install
or maintain facilities or to perform work in any private street; provided,
however, the City shall regulate any ROW work in any private street
under its inherent police power and as provided in this Code for purposes
of public health and safety. Doing so is not intended and may not
be considered as an exercise of jurisdiction over such private street
for the purposes of public use or maintenance.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
A.
Jurisdiction, Inspection, Permit Deadlines, Stop Work Orders, And
Liability.
1.
No person shall perform any excavation in the ROW without providing proof of security for such work or for the restoration and maintenance of the ROW as provided in Section 520.080, below. In the event of a need for emergency ROW work, the person conducting the work shall provide the required proof as soon as practicable following the commencement of the work, not to exceed the third business day thereafter.
2.
All facilities and ROW work shall be subject to inspection by
the City and the supervision of all Federal, State and local authorities
having jurisdiction in such matters to ensure compliance with all
applicable laws, ordinances, departmental rules and regulations, and
the ROW permit. The City shall charge an inspection fee in an amount
determined by the Director.
3.
ROW work shall commence within thirty (30) calendar days after
the issuance of the permit and if not so commenced, such permit shall
be deemed terminated. Permits so terminated may be renewed upon the
payment of an additional permit fee as originally required. Every
permit shall expire at the end of the period of time set out in the
permit. If the ROW user is unable to commence or to complete the work
within the specified time, the ROW user shall, prior to the expiration
date, present in writing to the Director a request for an extension
of time setting forth the reasons for the requested extension. If
the Director determines that such an extension is necessary and not
contrary to the public interest, the ROW user may be granted additional
time for the completion of the work.
4.
The Director shall have full access to all portions of the ROW
work and may issue stop work orders and corrective orders to prevent
unauthorized or substandard work. Such orders:
a.
May be delivered personally or by certified mail to the address(es)
listed on the application for the ROW permit or the person in charge
of the construction site at the time of delivery;
b.
Shall state that substandard work or work not authorized by
the ROW permit is being carried out, summarize the substandard or
unauthorized work and provide a period of not longer than thirty (30)
days to cure the problem, which cure period may be immediate if certain
activities must be stopped to protect the public safety; and
c.
May be enforced by equitable action in the Circuit Court of
St. Louis County, Missouri, and in such case the person responsible
for the substandard or unauthorized work shall be liable for all costs
and expenses incurred by the City in enforcing such orders, including
reasonable attorney's fees, in addition to any and all penalties
established in this Chapter.
B.
Installation Of Facilities.
1.
In conjunction with the City's long-standing policy favoring
underground construction, no person may erect, construct or install
new poles or other facilities above the surface of the rights-of-way
without the written permission of the City, unless the City's
authority has been preempted by State or Federal law. Such permission
may be granted through a ROW permit when other similar facilities
exist above-ground or when conditions are such that underground construction
is impossible, impractical or economically unfeasible, as determined
by the City, and when in the City's judgment the above-ground
construction has minimal aesthetic impact on the area where the construction
is proposed.
2.
During installation of facilities and to the extent authorized
by law, existing underground conduits shall be used whenever feasible
and permitted by the owner thereof.
3.
In the case of new construction or property development, the
developer or property owner shall give reasonable written notice,
to other potential ROW users as directed by the City, of the particular
date on which open trenching will be available for installation of
facilities. Costs of trenching and easements required to bring facilities
within the development shall be borne by the developer or property
owner; except that if the facilities are not installed within five
(5) working days of the date the trenches are available, as designated
in the notice given by the developer or property owner, then once
the trenches are thereafter closed, the cost of new trenching shall
be borne by the person installing the facilities.
4.
Facilities shall be constructed and maintained in such a manner
so as not to emit any unnecessary or intrusive noise and shall comply
with all other applicable regulations and standards established by
the City or State or Federal law.
C.
Relocation Of Equipment And Facilities.
1.
In the event of an emergency, or where construction equipment
or facilities create or are contributing to an imminent danger to
health, safety, or property, the City may, to the extent allowed by
law, remove, re-lay, or relocate such construction equipment, or the
pertinent parts of such facilities, without charge to the City for
such action or for restoration or repair. The City shall attempt to
notify the person having facilities within the ROW prior to taking
such action, but the inability to do so shall not prevent same. Thereafter,
the City shall notify the person having facilities within the ROW
as soon as practicable.
2.
At the City's direction and as may be permitted by law,
all facilities shall be moved underground and the cost shall be solely
the obligation of the person having facilities within the ROW (or
as otherwise allowed or required by law).
3.
Any person having facilities within the ROW shall, within a
reasonable time specified by the City, protect, support, disconnect,
relocate or remove, at its own expense, construction equipment or
discrete portions of its facilities when required by the City by reason
of traffic conditions; public safety; rights-of-way construction,
maintenance or repair (including resurfacing or widening); change
of rights-of-way grade or boundaries; construction, installation or
repair of sewers, drains, water pipes, power lines, signal lines,
tracks or any type of government-owned communications system, public
work or improvement or any government-owned utility; rights-of-way
vacation; or for any other purpose where the convenience of the City
would be reasonably served thereby. This requirement shall not apply
when the person having facilities within the ROW holds a valid easement
that existed prior to the date when the area in question became rights-of-way.
The person having facilities within the ROW shall bear the burden
of establishing to the City's satisfaction the fact of the pre-existing
easement.
4.
Any person having facilities within the ROW shall, on the request
of the City or any person authorized by the City, temporarily relocate
facilities to permit the moving of buildings or oversized vehicles.
5.
A person having facilities within the ROW shall, on the reasonable
request of any person and after reasonable advance written notice,
protect, support, disconnect, relocate, or remove facilities to accommodate
such person, and the actual cost, reasonably incurred, of such actions
shall be paid by the person requesting such action. The person having
facilities within the ROW taking such action may require such payment
in advance.
6.
Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (F) of this Section.
7.
No action hereunder shall be deemed a taking of property, and
no person shall be entitled to any compensation therefor. No location
of any facilities within the rights-of-way shall be a vested interest.
D.
Property Repair And Alterations.
1.
During any ROW work, the person doing the work shall protect
from damage any and all existing structures and property belonging
to the City and any other person. Any and all rights-of-way, public
property, or private property disturbed or damaged during the work
shall be repaired or replaced by the person doing the work or the
person on whose behalf the work is being done, and such person shall
immediately notify the owner of the fact of any damaged property.
Such repair or replacement shall be completed within a reasonable
time specified by the Director and to the Director's satisfaction.
2.
Any alteration to the existing water mains, sewerage or drainage
system or to any City, State or other public structures or facilities
in the rights-of-way required on account of the construction, installation,
repair or maintenance of facilities within the rights-of-way shall
be made at the sole cost and expense of the owner of such facilities.
E.
Removal, Abandonment, Transfer, And Relocation Of Facilities.
1.
If a registration is terminated, the City may require that the
person having facilities within the ROW remove its facilities from
the rights-of-way at the person's expense. In removing its facilities
the person shall obtain a ROW permit and restore any excavation that
shall be made by it as required by this code. The liability, indemnity,
insurance and bonding requirements as provided herein shall continue
in full force and effect during and after the period of removal and
restoration and until full compliance by the person with the terms
and conditions of this paragraph and the requirements of this code.
2.
If a person having facilities within the ROW installs the facilities
without having complied with the requirements of this code, the City
may:
3.
If a person having facilities within the ROW:
a.
Discontinues use of any facility for a continuous period of
twelve (12) months;
b.
Has installed the facilities without complying with the requirements
of this code; or
c.
Declares the facilities abandoned or if such facilities are:
(1)
No longer in active use;
(2)
No longer capable of being used for the same or
similar purpose for which the facilities were installed; or
(3)
Are physically disconnected from any other facility
that is in use or in service;
|
Then the facilities may be deemed abandoned. If such abandonment occurs, the City may require the removal of the facilities, remove the facilities at the expense of the person having facilities within the ROW, allow the abandonment of the facilities without removal or require the transfer of the facilities, all as provided in this Subsection (6).
|
4.
If the City requires removal of the facilities, the person shall
obtain a ROW permit and shall abide by all requirements of this Chapter.
The liability, indemnity, insurance and bonding requirements required
herein shall continue in full force and effect during and after the
period of removal and restoration and until full compliance by the
person with the terms and conditions of the ROW permit and the requirements
of this Chapter.
5.
If the person fails to remove the facilities after having been
directed to do so, the City may, to the extent permitted by law:
a.
Have the removal done at the person's expense.
b.
Deem the facilities abandoned, without removal, if the Director
determines that abandonment is not likely to prevent or significantly
impair the future use, repair, excavation, maintenance, or construction
of the ROW.
c.
Determine that the ownership of the facilities should be transferred
to the City, or to such person as directed by the City. In either
case the owner of the facilities shall submit a written instrument,
satisfactory in form to City, transferring to the City, or to such
person as directed by the City, ownership of the facilities. The City
may sell, assign, or transfer all or part of the facilities so transferred.
6.
The City shall not remove any facilities unless the existence
of such facilities prevents or significantly impairs the use, repair,
excavation or construction of the ROW. The City shall not remove or
seek to possess or transfer the facilities until thirty (30) days
have passed following written notice by the Director to the person
having facilities within The ROW of the City's intent to so act.
The Director may choose not to act on good cause shown by the person
having facilities within the ROW.
F.
Standards For ROW Work.
1.
Except for emergency ROW work as provided in Section 520.060(A)(1), ROW work shall be performed only upon issuance and in accordance with the requirements and scope of a ROW permit. At all times during the work, ROW permits shall be conspicuously displayed at the work site and shall be available for inspection by the Director. No ROW user shall perform any ROW work not authorized by a permit.
2.
If at any time it appears that the duration or scope of the
ROW work is or will become materially different from that allowed
by the ROW permit, the ROW user shall inform the Director. The Director
may issue a waiver, an extension or a revised ROW permit, or require
that the ROW user reapply for a ROW permit in accordance with all
requirements of this code.
3.
ROW users shall not open or encumber more of the rights-of-way
than is reasonably necessary to complete the ROW work in the most
expeditious manner or allow excavations to remain open longer than
is necessary to complete the work.
a.
No ROW work shall extend beyond the centerline of the street
before being backfilled or the surface of the street temporarily restored
in a manner satisfactory to the Director.
b.
No ROW work shall prevent the reasonable use of such street
by the public or cause substantial hazards.
c.
All ROW work that affects vehicular or pedestrian traffic shall
be properly signed, barricaded, and otherwise protected at the ROW
user's expense. The ROW user shall be responsible for providing
adequate traffic control to the area surrounding the work as determined
by the Director.
d.
The ROW user shall perform the ROW work at such times that will
allow the least interference with the normal flow of traffic and the
peace and quiet of the neighborhood, as permitted by the Director.
Unless otherwise provided by the Director in the permit, non-emergency
ROW work on arterial and collector streets may not be accomplished
during the hours of 7:00 a.m. to 8:30 a.m. and 4:00 p.m. to 6:00 p.m.
in order to minimize disruption of traffic flow.
4.
Excavations.
a.
No ROW user shall make or cause to be made any excavation in
any ROW without adequately protecting the same by erecting such fencing
or other barriers as the Director deems adequate to prevent persons,
animals or vehicles from falling into said excavation. Said barriers
may include warning signs by day and red torches or their equivalent
by night, which shall be placed and maintained around any such excavation
as to give reasonable notice and warning to any person approaching
such excavation from any direction. The Director may require additional
safety regulations a may be in conformity with the requirements of
Federal or State law or regulation.
b.
Excavated materials shall be laid compactly along the side of
the trench and kept trimmed up so as to cause as little inconvenience
as possible to public travel. In order to expedite the flow of traffic
or to abate a dirt or dust nuisance, the Director may require the
ROW user to provide toe boards or bins; and if the excavated area
is muddy and causes inconvenience to pedestrians, temporary wooden
plank walks, footbridges, or coverings shall be installed as required
by the Director. If the street is not wide enough to hold the excavated
material without using part of the adjacent sidewalk, the ROW user
shall keep a passageway at least one-half (1/2) the sidewalk width
open along such sidewalk line.
c.
When any earth, gravel or other excavated material is caused
to roll, flow or wash upon any street, the ROW user shall cause the
same to be removed from the street within four (4) hours after deposit.
5.
Notice.
a.
The ROW user shall notify the City no less than three (3) working
days in advance of any ROW work that would require any street closure
or would reduce traffic flow to less than two (2) lanes of moving
traffic for more than four (4) hours. Except in the event of emergency
ROW work, no such closure shall take place without notice and prior
authorization from the City.
b.
The ROW user shall provide written notice to all property owners
within one hundred and eighty-five (185) feet of the site at least
forty-eight (48) hours prior to performing the ROW work. Notice shall
include a reasonably detailed description of work to be done, the
location of work, and the time and duration of the work.
6.
All ROW work shall be in accordance with all applicable sections
of the Occupational Safety and Health Act of 1970, the National Electrical
Safety Code, and other Federal, State, or local laws and regulations
that may apply, including, without limitation, local health, safety,
construction and zoning ordinances, and laws and accepted industry
practices, all as hereafter may be amended or adopted. In the event
of a conflict among ordinances and standards, the most stringent ordinance
or standard shall apply (except insofar as that ordinance or standard,
if followed, would result in facilities that could not meet requirements
of Federal, State or local law).
7.
All facilities shall be installed and located to cause minimum
interference with the rights and convenience of property owners, other
ROW users and the City. Facilities shall not be placed where they
will disrupt or interfere with other facilities or public improvements,
or obstruct or hinder in any manner the various utilities serving
the residents and businesses in the City or public improvements.
a.
All existing facilities shall be exposed sufficiently ahead
of trench excavation work to avoid damage to those facilities and
to permit their relocation, if necessary.
b.
Pipe drains, pipe culverts or other facilities encountered shall
be protected by the ROW user.
c.
Monuments of concrete, iron or other lasting material set for
the purpose of locating or preserving the lines of any street or property
subdivision or a precise survey reference point or a permanent survey
bench mark within the City shall not be removed or disturbed or caused
to be removed or disturbed unless permission to do so is first obtained
in writing from the Director. Permission shall be granted only upon
condition that the ROW user shall pay all expenses incident to the
proper replacement of the monument.
8.
All ROW work shall be conducted in accordance with good engineering
practices, performed by experienced and properly trained personnel
so as not to endanger any person or property or to unreasonably interfere
in any manner with the rights-of-ways or legal rights of any property
owner, including the City, or unnecessarily hinder or obstruct pedestrian
or vehicular traffic.
9.
All safety practices required by law shall be used during ROW
work, including commonly accepted methods and devices to prevent failures
and accidents that are likely to cause damage, injury, or nuisance
to the public.
10.
Any contractor or subcontractor of a ROW user must be properly
licensed under laws of the State and all applicable local ordinances,
and each contractor or subcontractor shall have the same obligations
with respect to its work as a ROW user would have pursuant to this
Chapter. A ROW user:
a.
Must ensure that contractors, subcontractors and all employees
performing ROW work are trained and experienced,
b.
Shall be responsible for ensuring that all work is performed
consistent with the ROW permit and applicable law,
c.
Shall be fully responsible for all acts or omissions of contractors
or subcontractors,
d.
Shall be responsible for promptly correcting acts or omissions
by any contractor or subcontractor, and
e.
Shall implement a quality control program to ensure that the
work is properly performed.
11.
A ROW user shall not place or cause to be placed any sort of
signs, advertisements or other extraneous markings on the facilities
or in the ROW, whether relating to the ROW user or any other person,
except such necessary minimal markings approved by the City as necessary
to identify the facilities for service, repair, maintenance or emergency
purposes or as may be otherwise required to be affixed by applicable
law or regulation.
12.
Unless otherwise approved in writing by the City, a ROW user
shall not remove, cut, or damage any trees, or their roots, within
the ROW.
13.
Street crossings will be bored at the direction of the Director.
G.
Restoring And Maintaining The Rights-Of-Way.
1.
To complete any ROW work, the ROW user shall restore the ROW
and surrounding areas, including but not limited to any pavement,
foundation, concrete slabs or curbs, screening, landscaping, or vegetation
and shall comply with other reasonable conditions of the Director.
Restoration of the ROW shall be completed within the dates specified
in the ROW permit unless the Director issues a waiver, extension or
a new or revised ROW permit.
2.
It shall be the duty of any person making an excavation in the
ROW to backfill such excavations and restore the surface in accordance
with the City's minimum prescribed standards for such surfaces,
as may be determined and published by the Director.
3.
If a ROW user fails to restore the ROW within the date specified
either by the ROW permit, or any extension thereof as granted by the
Director, the City may perform its own restoration. The City may also
opt to perform its own restoration regardless of any failure by the
ROW user, in which case the ROW permit, or any amendment or revision
thereto, shall note such option. In either event, if the City performs
the restoration the ROW user shall be responsible for reimbursing
the City's reasonable actual restoration costs within thirty
(30) days of invoice.
4.
Every ROW user to whom a ROW permit has been granted shall guarantee
for a period of four (4) years the restoration of the ROW in the area
where the ROW user conducted excavation. During this period the ROW
user shall, upon notification from the Director, correct all restoration
work to the extent necessary as required by the Director. Said work
shall be completed within a reasonable time, not to exceed thirty
(30) calendar days from receipt of the Director's notice unless
otherwise permitted by the Director. If a ROW user fails to restore
the ROW within the time specified, the City may perform the work and
the ROW user shall be responsible for reimbursing the City's
reasonable actual restoration costs within thirty (30) days of invoice.
The Director may extend the cure period on good cause shown.
5.
A ROW user shall not be relieved of the obligation to complete
the necessary right-of-way restoration and maintenance because of
the existence of any performance bond required by this Chapter.
H.
After the completion of ROW work the ROW user shall provide to the
City as-built drawings, maps or other comparable records as determined
by the Director, drawn to scale and certified to the City as reasonably
depicting the location of all facilities constructed pursuant to the
ROW permit. Such records may be provided to the Director in the form
maintained by the ROW user, but when available to the ROW user, shall
be submitted in automated formats compatible with the City's
systems, such as AUTOCAD.DXF, AUTOCAD.DWG, MICROSTATION.DGN (or comparable
as allowed by the Director), or in hard copy otherwise.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
A.
Security Required. A ROW user shall not perform any ROW work without
complying with the security requirements of this Section.
B.
Security Deposit.
1.
A ROW user shall submit a cash deposit in the sum of two thousand
dollars ($2,000.00), or other such amount as may be determined by
the Director, for any cut to or excavation of the ROW. The deposit
shall be to secure the proper restoration of the ROW by the ROW user
after completion of the work. Whenever a ROW user applies for more
than one (1) cut or excavation, the ROW user may post a single deposit
in an amount determined by the Director to cover the anticipated costs
of restoration.
2.
The Director shall inspect the ROW user's restoration of
the ROW for compliance with the City's standards. Upon the ROW
user's timely and successful restoration as evidenced by the
Director's issuance of a certificate of final inspection, the
City shall refund to the ROW user the security deposit.
3.
If the ROW user fails to restore the cut or excavation to required
standards within a reasonable amount of time, then after notice and
a reasonable opportunity to cure the Director may effect the proper
restoration of the ROW and the use of the security deposit for such
purposes. In this event the City shall be entitled to any damages
or loss suffered by the City as a result.
4.
If any deposit is less than sufficient to pay the City's
costs and damages, the ROW user shall pay to the City an amount equal
to the deficiency. If the ROW user fails or refuses to pay such deficiency,
the City may institute an action to recover the same in any court
of competent jurisdiction and shall be entitled to a reasonable allowance
for attorneys' fees. Until such deficiency is paid in full, no
additional permits shall be issued to the ROW user.
C.
Performance And Maintenance Bonds.
1.
For any ROW user having less than twenty-five million dollars
($25,000,000.00) in net assets and a history of non-compliance with
State and local regulations, the Director may, in addition to, in
combination, with, or in lieu of the security deposit required, permit
a ROW user to establish in the City's favor a performance and
maintenance bond in an amount to be determined by the Director to
ensure the ROW work and the restoration of the right-of-way. The bond
shall continue in full force and effect for a period of twenty-four
(24) months following completion of the work. The Director shall have
the authority to extend the maintenance bond period for up to an additional
twenty-four (24) months.
2.
If a ROW user fails to complete the ROW work in a safe, timely,
and competent manner, or if the completed restorative work fails without
remediation within the time period for the bond (as determined by
the Director), then after notice and a reasonable opportunity to cure
there shall be recoverable, jointly and severally from the principal
and surety of the bond any damages or loss suffered by the City as
a result, including the full amount of any compensation, indemnification,
or cost of removal or abandonment of any property of the ROW user
and the cost of completing work within or restoring the rights-of-way,
plus a reasonable allowance for attorneys' fees, up to the full
amount of the bond. The City may also recover against the bond any
amount recoverable against a security fund or letter of credit where
such amount exceeds that available under a security fund or letter
of credit.
3.
Upon completion of ROW work to the satisfaction of the Director
and upon lapse of the bond period, including any extension by the
Director, the City shall release the bond.
4.
The bond shall be issued by a surety with an "A" or better rating
of insurance in Best's Key Rating Guide, Property/Casualty Edition,
shall be subject to the approval of the City's attorney and shall
contain the following endorsement:
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"This bond may not be cancelled, 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 lieu of any bond required herein, the ROW user may establish
in the City's favor such other security as the Director may determine
to be commensurate with the noted bonding requirements, including
but not limited to an annual bond to be maintained in the minimum
amount of twenty-five thousand dollars ($25,000.00).
D.
Insurance.
1.
All ROW users shall maintain, for the duration of any ROW work
and, when applicable, for as long as the ROW user has facilities within
the rights-of-way, at least the following liability insurance coverage:
worker's compensation and employer liability insurance to meet
all requirements of Missouri law and commercial general liability
insurance with respect to the construction, operation, and maintenance
of the facilities, and the conduct of the ROW user's business
in the City, in the minimum amounts of:
a.
Three millions dollars ($3,000,000.00) for property damage resulting
from any one (1) accident;
b.
Five millions dollars ($5,000,000.00) for personal bodily injury
or death resulting from any one (1) accident; and
c.
Three millions dollars ($3,000,000.00) for all other types of
liability.
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These insurance requirements shall not be construed to limit
the liability of any person or to impose any liability on the City
or to waive any sovereign immunity.
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2.
All insurance policies shall be with sureties qualified to do
business in the State of Missouri, with an "A" or better rating of
insurance by Best's Key Rating Guide, Property/Casualty Edition,
and in a form approved by the City.
3.
All insurance policies shall be available for review by the
City, and a ROW user having facilities within the rights-of-way shall
keep on file with the City current certificates of insurance.
4.
All general liability insurance policies shall name the City,
its officers, boards, board members, commissions, commissioners, agents,
and employees as additional insureds and shall further provide that
any cancellation or reduction in coverage shall not be effective unless
thirty (30) days' prior written notice thereof has been given
to the Director. A ROW user shall not cancel any required insurance
policy without submission of proof that it has obtained alternative
insurance that complies with this Chapter.
5.
The Director may exempt in writing from these insurance requirements
any self-insured ROW user, provided that the ROW user demonstrates
to the Director's satisfaction that the ROW user's self-insurance
plan is commensurate with said requirements and that the ROW user
has sufficient resources to meet all potential risks, liabilities
and obligations contemplated by the requirements of this Chapter.
The Director may require a security fund or letter of credit as a
condition to a self-insured's exemption. The Director shall waive
this requirement when the ROW user has twenty-five million dollars
($25,000,000.00) in net assets and does not have a history of non-compliance
with applicable regulatory law.
E.
Indemnification.
1.
Any ROW user granted a ROW permit, and any person having facilities
within the rights-of-way, as partial consideration for the privilege
granted, shall, at its sole cost and expense, indemnify, hold harmless,
and defend the City, its officials, boards, board members, commissions,
commissioners, agents, and employees, against any and all claims,
suits, causes of action, proceedings, and judgments for damages or
equitable relief arising out of: (i) any ROW work, including but not
limited to the construction, maintenance, repair, or replacement of
the of facilities, (ii) the operation of its facilities, (iii) failure
to secure consents from landowners, or (iv) any actions taken or omissions
made by the person pursuant to the authority of this Chapter.
2.
The foregoing indemnity provisions, include, but are not limited
to, the City's reasonable attorneys' fees incurred in defending
against any such claim, suit, or proceeding prior to the person assuming
such defense. The City shall notify a person of claims and suits within
seven (7) business days of its actual knowledge of the existence of
such claim, suit, or proceeding. Once a person assumes such defense,
the City may at its option continue to participate in the defense
at its own expense.
3.
Notwithstanding anything to the contrary contained in this Chapter,
the City shall not be so indemnified or reimbursed in relation to
any amounts attributable to: (i) the City's own negligence, willful
misconduct, intentional or criminal acts, or (ii) the City acting
in a proprietary capacity to deliver service(s) within the City.
4.
Recovery by the City of any amounts under insurance, a performance
bond, or otherwise does not limit a person's duty to indemnify
the City in any way; nor shall such recovery relieve a person of amounts
owed to the City, or in any respect prevent the City from exercising
any other right or remedy it may have.
F.
Principal's Responsibility. Notwithstanding anything in this
Code to the contrary, a person having facilities within the ROW shall
be responsible for ensuring the work of any contracted ROW user, including
the prompt correction of any contractor error or deficiency, ROW restoration
if the contractor is unable or unwilling to perform same to the City's
standards, and liability for damages caused by the contractor.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
A.
The Director shall make a final determination as to any matter concerning
the grant, denial or revocation of a ROW permit as provided in this
Chapter. On the request of an applicant or a ROW user and within a
reasonable period of time, the Director also shall make a final determination
as to any other issue relating to the use of the ROW, the imposition
of any fee or the application of any provision of this Chapter, provided,
however, that this review shall not apply to matters being prosecuted
in the municipal court. Any final determination of the Director shall
be subject to review as provided herein.
B.
Any person aggrieved by a final determination of the Director may
appeal in writing to the City Manager within five (5) business days
thereof. The appeal shall assert specific grounds for review, and
the City Manager shall render a decision on the appeal within fifteen
(15) business days of receipt affirming, reversing, or modifying the
determination of the Director. The City Manager may extend this time
period for the purpose of any investigation or hearing deemed necessary.
A decision affirming the Director's determination shall be in
writing and supported by findings establishing the reasonableness
of the decision.
C.
Any person aggrieved by the final determination of the City Manager
may file a petition for review pursuant to Chapter 536 of the Revised
Statutes of Missouri, as amended, in the Circuit Court of the County
of St. Louis. Such petition shall be filed within thirty (30) days
after the City Manager's final determination.
D.
Arbitration And Mediation.
1.
On agreement of the parties and in addition to any other remedies,
any final decision of the City Manager may be submitted to mediation
or binding arbitration.
2.
In the event of mediation, the City Manager and the applicant
or ROW user shall agree to a mediator. The costs and fees of the mediator
shall be borne equally by the parties, and each party shall pay its
own costs, disbursements and attorney fees.
3.
In the event of arbitration, the City Manager and the applicant
or ROW user shall agree to a single arbitrator. The costs and fees
of the arbitrator shall be borne equally by the parties. If the parties
cannot agree on an arbitrator, the matter shall be resolved by a three
(3) person arbitration panel consisting of one (1) arbitrator selected
by the City Manager, one (1) arbitrator selected by the applicant
or ROW user, and one (1) person selected by the other two (2) arbitrators,
in which case each party shall bear the expense of its own arbitrator
and shall jointly and equally bear with the other party the expense
of the third arbitrator and of the arbitration. Each party shall also
pay its own costs, disbursements and attorney fees.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
A.
Upon failure of a ROW user to commence, pursue or complete any ROW
work required by law or by the provisions of this Chapter to be done
in any street, within the time prescribed and to the reasonable satisfaction
of the City, the City may, at its option, after thirty (30) days notice,
cause such work to be done and the ROW user shall pay to the City
the cost thereof in the itemized amounts reported by the City to the
ROW user within thirty (30) days after receipt of such itemized report.
B.
Upon ten (10) days written notice and with the supervision of the
City, or as otherwise provided by law, a ROW user shall have the authority
to trim trees that overhang rights-of-way of the City so as to prevent
the branches of such trees from coming in contact with its facilities,
at its own expense subject to the supervision and direction of the
City. Nothing in this paragraph shall authorize the trimming of trees
on private property without permission of the property owner. All
cut materials shall be properly disposed.
C.
During ROW work by a ROW user the City shall have the right to install,
and to thereafter maintain, at its own cost in any excavation to or
other applicable disturbance of the ROW any parallel facilities of
its own that do not unreasonably interfere with the operations of
other facilities.
D.
Nothing in this Chapter shall be in preference or hindrance to the
right of the City and any board, authority, commission or public service
corporation of the City to use or occupy the rights-of-way or to perform
or carry on any public works or public improvements of any description.
[Ord. No. 2591 §§ 1
— 2, 8-23-2016]
Any person convicted of violating any provision of this code
shall be punished by a fine not to exceed one thousand dollars ($1,000.00)
or by imprisonment not to exceed ninety (90) days, or by both such
fine and imprisonment. Each day the violation continues may be charged
as a separate offense.
