[Bill No. 108, 8-12-2003]
This Chapter shall be known as the "Rights-of-Way Management
Ordinance" and shall read as follows.
[Bill No. 108, 8-12-2003]
To the extent permitted by law, this Chapter shall apply to
all persons desiring to construct, operate, or maintain facilities
in, along, across, under, or over public rights-of-way within the
City of Merriam Woods, Missouri.
[Bill No. 108, 8-12-2003]
A.
APPLICANT
APPLICATION
BUILDING INSPECTOR
CITY
EXCAVATION
1.
2.
3.
FACILITIES
FACILITIES WORK
PERMIT
PERSON
PUBLIC RIGHT-OF-WAY
1.
2.
3.
4.
Definitions And Usage Generally.
For the purposes 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 future tense and vice versa, words in
the plural number include the singular number and vice versa, and
the masculine gender includes 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.
The specific person applying for and receiving a permit under
this Chapter.
That form designed by the Building Inspector which an applicant
must use to obtain a permit to conduct facilities work in, along,
across, over, or under the city's right-of-way.
The Building Inspector or his/her designee.
The City of Merriam Woods, Missouri.
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, uncovered,
removed, or otherwise displaced, by means of any tools, equipment
or explosives, except that the following shall not be deemed "excavation":
Any de minimis displacement or movement of ground caused by
pedestrian or vehicular traffic;
The replacement of utility poles and related equipment at the
existing general location that does not involve either a street or
sidewalk cut; or
Any other activity which does not disturb or displace surface
conditions of the earth, asphalt, concrete, sand, gravel, rock or
any other material in or on the ground.
Any conduit, duct, line, pipe, wire, hose, cable, culvert,
tube, pole, receiver, transmitter, satellite dish, micro call, picocell,
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.
The installation of new facilities, or any change, replacement,
relocation, removal, alteration, or repair of existing facilities
that requires excavation within the public rights-of-way, except for
the occasional replacement of utility poles and related equipment
at the existing general location that does not involve either a street
or sidewalk cut.
A permit granted by the Building Inspector to do facilities
work within the public rights-of-way.
An individual, partnership, association, joint-stock company,
trust, organization, limited-liability company, or other entity, or
any lawful successor thereto or transferee thereof, but such term
does not include the City of Merriam Woods.
The area on, below or above a public roadway, highway, street
or alleyway in which the political subdivision has an ownership interest,
but not including:
The airwaves above a public right-of-way with regard to cellular
or other non-wire telecommunications or broadcast service;
Easements obtained by utilities or private easements in platted
subdivisions or tracts;
Railroad rights-of-way and ground utilized or acquired for railroad
facilities; or
Poles, pipes, cables, conduits, wires, optical cables, or other
means of transmission, collection or exchange of communications, information,
substances, data, or electronic or electrical current or impulses
utilized by a municipally owned or operated utility pursuant to Chapter
91, RSMo., or pursuant to a charter form of government.
[Bill No. 108, 8-12-2003]
A.
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, license, easement, or authorization required by law,
unless such facilities work must be performed on an emergency basis,
then the person conducting the work shall as soon as practicable notify
the City of the location of the work and apply for the required permit
by the third business day following the commencement of the facilities
work.
1.
All applications for permits shall be submitted to the Building
Inspector. The Building Inspector shall design and make available
standard forms for such applications, requiring such information as
the Building Inspector determines to be necessary, consistent with
the provisions of this Chapter, to accomplish the purposes of this
Chapter.
2.
Each such application shall be accompanied by payment of fees
as designated in this Chapter.
3.
The Building Inspector shall review each application for a permit and, upon determining that the applicant has the 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 (A)(4). In order to avoid excessive processing and accounting costs to either the City or the applicant, the Building Inspector shall have the authority to establish procedures for bulk processing of applications and periodic payment of fees.
4.
It is the intention of the City that disruption of the public
rights-of-way should be minimized. Upon the receipt of an application
for a permit, the Building Inspector shall do the following:
a.
Evaluate the degree of excavation necessary to perform the facilities work in the right-of-way and determine whether the excavation will be more than minor in nature. If the applicant can show to the Building Inspector's reasonable satisfaction that the facilities work involves any of the following, then the Building Inspector shall grant the permit without delay, provided that if the permit is not issued in ten (10) business days, the aggrieved party may appeal as provided in Subsection (A)(8).
b.
For circumstances where the Building Inspector determines that there will be significant excavation of the public rights-of-way and no exemption under Subsection (A)(4)(a) or any other provision of this Section applies, the Building Inspector may, consistent with the time requirements set for in Section 520.040 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.
5.
Each permit shall include projected commencement and termination
dates or, if such dates are unknown at the time the permit is issued,
a provision requiring the permit holder to provide the Building Inspector
with reasonable advance notice of such dates once they are determined;
length of public rights-of-way; number of road crossings, information
regarding scheduling and coordination of facilities work if applicable;
and location of facilities.
6.
The Building Inspector may include in permits such conditions
and requirements as are reasonably necessary to protect structures
and facilities in 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.
7.
Denial Of A Permit.
a.
The Building Inspector may deny a permit application for the
following reasons if deemed in the public's interest:
(1)
Undisputed past due fees from prior permits;
(2)
Failure to return the right-of-way to its previous
conditions under previous permits;
(3)
Undue disruption to existing utilities, transportation,
or City use;
(4)
Area is environmentally sensitive as defined by
State or Federal Statute;
(5)
Failure to provide required information; and
(6)
The applicant is in violation of the provisions
of this Chapter.
b.
Notwithstanding the provisions of Subsections (A)(7)(a)(3) and (4) above, the Building Inspector will cooperate with the applicant to identify alternative routes which most nearly match the routes requested by the applicant for the placement of facilities.
8.
Applicant may appeal any final decision of the Building Inspector
to the Governing Body of the City, which shall consider the appeal
within sixty (60) days or at its next regular meeting, whichever occurs
first.
9.
Applicant must pay the following fees:
a.
Any fees collected pursuant to this Section will be used only
to reimburse the City for its actual incurred costs of managing the
rights-of-way and will not be used to generate revenue to the City
above such costs. The City may not require or accept in-kind services
in lieu of any fee imposed under this Chapter.
b.
Permit Fee. A fee charged to recover the City's actual costs
for an applicant's facilities work in the right-of-way, including
the costs of processing permits, inspections, and administration of
this Chapter, excluding legal fees relating to interpretation or enforcement
of this Chapter, including all such appeals. The permit fee is twenty-five
dollars ($25.00).
B.
Applicant Subject To Other Laws, Police Powers.
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 construction, 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.
The City shall have the maximum plenary authority to regulate
applications, permits, and facilities work as may now or hereafter
be lawfully permissible. 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.
[Bill No. 108, 8-12-2003]
A.
Oversight Of Facilities Work.
1.
An applicant shall construct, operate, and maintain facilities
subject to the supervision of all of the authorities of the City who
have jurisdiction in such matters, and in strict compliance with this
Chapter, all applicable zoning and construction permitting ordinances,
departmental rules and regulations.
2.
Facilities work shall be subject to periodic inspection by the
City.
3.
The Building Inspector shall have full access to all portions
of facilities work and 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 than thirty (30) days to cure the problem, which cure period
may be immediate 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 construction site at the time of delivery. Such orders
may be enforced by equitable action in the Circuit Court of Taney
County, Missouri, and if the City prevails in such case, the person
involved in the facilities work shall be liable for all costs and
expenses incurred by the City, including reasonable attorney's fees,
in enforcing such orders, in addition to any and all penalties established
under this Chapter.
4.
Any person who engages in facilities work in the public rights-of-way
and who has not received a valid permit from the City shall be subject
to all requirements of 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 issued, order
the facilities work ceased and do any of the following: 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; require
such person to remove its property and restore the affected area to
a condition satisfactory to the City; or take any other action it
is entitled to take under applicable law, including but not limited
to, filing for and seeking damages for trespass.
B.
Construction Standards.
1.
The construction, operation, maintenance, and repair of facilities
shall be in accordance with applicable health, safety, and construction
codes.
2.
All facilities shall be installed and located with due regard
for minimizing interference with the public and other utility users
of the rights-of-way, including the City.
3.
An 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 of their use of any public rights-of-way.
4.
Any and all public rights-of-way disturbed or damaged during
the facilities work shall be promptly repaired or replaced by the
applicant to its previous condition.
5.
Any contractor or subcontractor used for facilities work must
be properly licensed under the 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 an applicant would
have hereunder and applicable laws if the work were performed by the
applicant. The applicant 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 all
acts or omissions of contractors or subcontractors, and shall be responsible
for promptly correcting acts or omissions by any contractor or subcontractor.
[Bill No. 108, 8-12-2003]
A.
Performance Bond.
1.
Prior to any facilities work in the public rights-of-way, an
applicant shall establish in the City's favor a performance bond in
an amount determined by non-discriminatory regulations promulgated
by the Building Inspector as necessary to ensure the applicant'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, the past performance
of the applicant, and not based on the characteristics of the applicant.
In lieu of a performance bond, applicant may provide an acceptable
substitute with the approval of the Building Inspector.
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 at the bond, any
damages or losses suffered by the City as a result, plus a reasonable
allowance for attorney's fees, up to the full amount of the bond.
3.
Upon completion of the facilities work to the satisfaction of
the Building Inspector, the Building Inspector shall eliminate the
bond or reduce its amount after a time appropriate to determine whether
the work performed was satisfactory, which time shall be established
by the Building Inspector considering the nature of the work performed.
4.
A performance bond shall be issued by a surety company acceptable
to the City, and shall contain the following endorsement. "This bond
may not be canceled or allowed to lapse until sixty (60) days after
receipt by the City, by certified mail, return receipt requested,
of a written notice from the issuer of the bond of intent to cancel
or not to renew."
5.
Applicant 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 or proceedings, and judgments
for damages or equitable relief which are caused by the acts, errors
and omissions of applicant arising out of the construction and maintenance
of its facilities.
6.
Recovery by the City of any amounts under the performance bond
or otherwise does not limit an applicant's duty to indemnify the City
in any way, nor shall such recovery relieve an applicant of its obligations
under a permit or reduce the amounts owed to the City other than by
the amounts recovered by the City under the performance bond, or in
any respect prevent the City from exercising any other right or remedy
it may have.
[Bill No. 108, 8-12-2003]
A.
Compliance With Law. Each applicant shall comply with all applicable
City ordinances, resolutions, rules and regulations heretofore and
hereafter adopted or established.
B.
Franchises Not Superseded. Nothing herein relieves the City from
any obligations under an existing franchise. Nothing herein shall
be deemed to relieve an applicant of the provisions of an existing
franchise, license, or other agreement or permit.
C.
Rights And Remedies.
1.
The exercise of one (1) remedy under this Chapter shall not
foreclose use of another, nor shall the exercise of a remedy or the
payment of damages or penalties relieve an applicant of its obligations
to comply with its permits. Remedies may be used alone or in combination;
in addition, the City may exercise any rights it has at law or equity.
2.
The City hereby reserves to itself the right to intervene in
any suit, action, or proceeding involving any provisions of this Chapter.
3.
No applicant shall be relieved of its obligation to comply with
any of the provisions of this Chapter by reason of any failure of
the City to enforce prompt compliance.
D.
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.
E.
Force Majeure. An applicant shall not be deemed in violation of provisions
of this Chapter where performance was rendered impossible by war or
riots, civil disturbances, floods, or other natural catastrophes beyond
the applicant's control, and a permit shall not be revoked or an applicant
penalized for such non-compliance, provided that the applicant takes
immediate and diligent steps to bring itself back into compliance
and to comply as soon as possible under the circumstances with its
permit without unduly endangering the health, safety, and integrity
of the applicant's employees or property, the public, public rights-of-way,
public property, or private property.
F.
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 and
include the last day of the prescribed or fixed period of time.
G.
Severability. If any term, condition, or provision of this Chapter
shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in applicable
law so that the provision that has been held invalid is no longer
invalid, said provisions shall thereupon return to full force and
effect without further action by the City and shall thereafter be
binding upon applicant and City.
[Bill No. 108, 8-12-2003]
The provisions hereof shall specifically apply to any lands
or property annexed as of the date of such annexation.
[Bill No. 108, 8-12-2003]
Whenever, by reason of 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 aboveground
structure it is deemed necessary by the City to move, alter, change,
adapt, or conform the underground or aboveground facilities of user,
user 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 without claim for reimbursement
or damages against the City.
[Bill No. 108, 8-12-2003]
Any standards in this Chapter relating to facilities work shall
be fully applicable to work performed by the City and its departments.
