[Ord. No. 1843, 6-17-2020]
For the purpose of this Chapter, the following terms, phrases,
words and abbreviations shall have the meanings given herein, unless
otherwise expressly stated. When not inconsistent with the context,
words used in the present tense include the future tense and vice
versa, words in the plural number include the singular number and
vice versa, and the masculine gender include the feminine gender and
vice versa. The words "shall" and "will" are mandatory, and "may"
is permissive. Unless otherwise expressly stated or clearly contrary
to the context, terms, phrases, words and abbreviations not defined
herein shall be given the meaning set forth in the City Code, and
if not defined therein, their common and ordinary meaning.
Any equipment materials, apparatuses, devices or facilities
that are:
Declared abandoned by the owner of such equipment or facilities;
No longer in active use, physically disconnected from a portion
of the operating facility or any other facility that is in use or
in service, and no longer capable of being used for the same or similar
purpose for which the equipment, apparatuses or facilities were installed;
or
No longer in active use and the owner of such equipment or facilities
fails to respond within thirty (30) days to a written notice sent
by the City.
The specific person who submits an application.
That form designed by the City, which an applicant must use
to obtain a right-of-way permit to conduct excavations within, across,
under and over the City's rights-of-way.
The officially elected Board of Aldermen of the City of Cottleville,
Missouri.
The City of Cottleville, Missouri, and its agencies, departments,
officials, agents and employees acting within their respective areas
of authority.
Any pavement for streets, sidewalks, alleys, or paths, and
any curbs, gutters, drainage structures, storm sewers, swales, ditches,
sanitary sewers, manholes, water mains, water service lines, water
meters, valves, street lights, conduits, traffic signals, cables,
conduits, panels, irrigation systems, bridges, culverts, or signs,
in which the City holds a property interest.
Any person contracting with a public utility right-of-way
user or permit holder to do work within a public right-of-way.
The officially appointed Director of Public Works of the
City or his/her designee.
An emergency includes but is not limited to the following:
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility that prevents or significantly jeopardizes
the ability of a public utility to provide service to customers;
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility that results or could result in danger
to the public or a material delay or hindrance to the provision of
service to the public if the outage, cut, rupture, leak or any other
such failure of public utility facilities is not immediately repaired,
controlled, stabilized or rectified; or
Any occurrence involving a facility that a reasonable person
could conclude under the circumstances that immediate and undelayed
action by the public utility is necessary and warranted.
Any act by which earth, asphalt, concrete, sand, gravel,
rock, or any other material in or on the ground is cut into, dug,
tunneled, uncovered, directional bored, removed, or otherwise displaced
by means of any tools, equipment, or explosives, except that 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.
All equipment, facilities, devices, materials, apparatuses,
or media, including, but not limited to, conduits, ducts, lines, pipes,
wires, hoses, cables, culverts, tubes, poles, towers, manholes, transformers,
regulator stations, underground vaults, receivers, transmitters, satellite
dishes, micro cells, Pico cells, repeaters, or amplifiers useable
for the transmission or distribution of any service or commodity installed
below or above ground in the public right-of-way of the City, whether
used privately or made available to the public.
Individual water and sewer taps permitted as part of a building
permit, and individual service connections from a supply line, wire,
or cable for natural gas, electric, cable television, telecommunications,
or other services to a residence or business.
8:00 A.M. to 5:00 P.M., Central Standard Time, Monday through
Friday.
Any person to whom a right-of-way permit has been granted
by the City under this Chapter.
An individual, partnership, limited liability company, corporation,
association, joint stock company, trust, organization or any other
entity, or any lawful successor thereto or transferee thereof.
The status of a person that has not complied with the conditions
of this Chapter.
One (1) year from the date in which a person has been notified,
in writing, that they have been put on probation.
A written plan of work prepared and presented to the City
by an applicant that encompasses an outlined scope of work to be conducted
within the public right-of-way. A project could be one (1) or more
separate excavations, constructions, or installations within the public
right-of-way, but included as part of a single plan.
The area on, below or above a public roadway, highway, street
or alleyway in which the City 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.
Every cable television service provider, every pipeline corporation,
gas corporation, electrical corporation, rural electric cooperative,
telecommunications company, water corporation, heating or refrigerating
corporation or sewer corporation under the jurisdiction of the public
service commission; every municipally owned or operated utility pursuant
to Chapter 91, RSMo., or pursuant to a charter form of government
or cooperatively owned or operated utility pursuant to Chapter 394,
RSMo.; every street light maintenance district; every privately owned
utility; and every other entity, regardless of its form of organization
or governance, whether for profit or not, which in providing a public
utility type of service for members of the general public, utilizes
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,
in the collection, exchange or dissemination of its product or services
through the public rights-of-way.
A public utility owning or controlling facilities in the
public right-of-way and authorized to do business pursuant to the
laws of this State or by license of the Federal Energy Regulatory
Commission, United States Department of Transportation, or the Federal
Communications Commission.
A permit issued by the City to a permit holder authorizing
the performance of excavation within a public right-of-way.
An outline prepared and presented by a public utility right-of-way
user describing all of its proposed excavation which may affect public
right-of-way for the following twelve (12) month period.
Any single or contiguous lots, tracts, projects or subdivisions
of land owned by a single person or by several persons acting jointly.
[Ord. No. 1843, 6-17-2020]
A.
Permit Requirements. No person shall conduct any excavation within any public right-of-way without first obtaining a right-of-way permit from the City for such excavation, in addition to any other permit, license, easement, or authorization required by law, unless such excavation must be performed on an emergency basis as set forth in Section 525.020(B)(1) of this Chapter or except in case of excavations conducted by the employees of the City or by any contractor under contract with the City. Each separate and distinct excavation shall require a separate right-of-way permit.
B.
Excavation Done Without A Permit.
1.
Emergency Work.
a.
In cases where excavations must be conducted within the public right-of-way on an emergency basis, obtaining a right-of-way permit under Subsection (A) of this Section 525.020 prior to the excavation is not required. The person performing such emergency excavation within a public right-of-way shall immediately notify the City if said excavation is performed during normal business hours, and the City of Cottleville Police Department if performed outside of normal business hours, that the emergency excavation is being commenced and the location thereof, and such excavation may proceed immediately; provided, however, said person shall apply for the right-of-way permit required by Subsection (A) of this Section 525.020 for the emergency excavation by the next business day, during normal business hours, following the commencement of such excavation and shall comply with the requirements of this Chapter.
b.
Any person performing an emergency excavation shall make reasonable
efforts to contact each public utility right-of-way user affected,
or potentially affected, by the emergency excavation.
2.
Except in the case of an emergency, any person who, without
first having obtained the necessary right-of-way permit, performs
excavation(s) within a public right-of-way must, in addition to any
other penalties provided for the violation of ordinances of the City,
subsequently obtain a right-of-way permit, pay double the normal fees
for said right-of-way permit, deposit with the City all monies necessary
to repair any damage caused by the unauthorized excavation in the
public right-of-way, and comply with all of the requirements of this
Chapter and of all other City ordinances.
C.
Permit Applications And Application Fee.
1.
Application Content. Applications shall be submitted to the Director of Public Works. The application shall be accompanied by the fees as set forth in Subsection (2) of this Section 525.020(C). Applications shall be submitted on forms prepared by the Director of Public Works and shall contain the following information:
a.
The names, addresses, telephone numbers and legal status of
the applicant, contractor and public utility right-of-way user.
b.
The name, address and telephone number of a responsible person
whom the City may notify or contact at any time concerning the applicant's
excavation in or on the public right-of-way.
c.
An engineering site plan showing the proposed location of the
excavation and all facilities to be installed, replaced, or otherwise
affected by the excavation, including manholes or overhead poles;
the length, size, type and proposed depth of any conduit or any other
enclosures; the relationship of the facilities to all existing streets;
the length of the public right-of-way to be disturbed by the excavation;
the number of road crossings; the number of entrance drive crossings;
the locations of City-owned facilities in the excavation site, if
known; the dimensions and character of the excavation; and the number
of square feet to be resurfaced.
d.
Each application should include the projected commencement and
termination dates of the excavation or, if such dates are unknown
at the time the right-of-way permit is issued, a provision requiring
the permit holder to provide the Director of Public Works with reasonable
advance notice of such dates once they are determined.
e.
Information sufficient for the Director of Public Works to determine
that the applicant has applied for and received any permit, license
or other approval required by the Federal Communications Commission
or the Missouri Public Service Commission, as applicable; provided,
however, that after the applicant has provided the foregoing information
in a completed application, such information can be incorporated by
reference in future applications that require such information rather
than having to provide such information with every subsequent application.
f.
Certificates of insurance as required by the Director of Public
Works.
g.
Any additional information that the Director of Public Works
determines to be necessary, which may include such conditions and
requirements as are reasonably necessary to protect facilities in
the public right-of-way from damage, for the proper restoration of
such public right-of-way and facilities, and for the protection of
the public and the continuity of pedestrian and vehicular traffic.
2.
Application Fee. Each application shall be accompanied by the
following fees:
a.
An application fee in the amount of one hundred twenty dollars
($120.00) payable to the City to cover the costs of administrative
expenses associated with the review of the application. No part of
such fee shall be returnable to the applicant.
b.
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 excavation
in the public right-of-way or for any emergency actions taken by the
City.
3.
The making and repairing of individual service connections in the public right-of-way shall require a separate right-of-way permit if permitted as part of a building permit issued by the City. All repairs to the public right-of-way made as a result of individual service connections shall be in accordance with Section 525.030 of this Chapter.
D.
Application Review And Determination.
1.
The Director of Public Works shall promptly review each completed application for a right-of-way permit and shall grant or deny such application as provided herein within thirty-one (31) days of receipt thereof. Except as provided in Subsection (F) of this Section 525.020, the Director of Public Works shall issue a right-of-way permit upon determining that the applicant:
2.
The Director of Public Works may require, as alternatives to
the proposed method for performing the excavation identified in the
application, either less disruptive methods or different locations
for facilities, provided that any required alternative:
3.
Each right-of-way permit issued by the Director of Public Works
shall include:
a.
Projected commencement and termination dates or, if such dates
are unknown at the time the right-of-way permit is issued, a provision
requiring the permit holder to provide the Director of Public Works
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 excavation;
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 excavation;
e.
An acknowledgment and representation by the applicant to comply
with the terms and conditions of the right-of-way permit, this Chapter,
and all other applicable Federal, State, or local laws; and
f.
Such conditions and requirements as are deemed reasonably necessary
by the Director of Public Works to protect structures and other facilities
in the public right-of-way from damage, to restore such public right-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.
4.
Each right-of-way permit shall only be valid for the number
of days for which it was granted, as stipulated on the respective
right-of-way permit. In any case where a permit holder shows a hardship
in completing the excavation within the time provided by the respective
right-of-way permit, said permit holder may request an extension of
the right-of-way permit time restriction by submitting a written request
for the same to the Director of Public Works prior to the natural
expiration of said right-of-way permit. Upon receiving a request for
an extension, the Director of Public Works is authorized to, in his/her
discretion, extend the time of such right-of-way permit. The Director
of Public Works shall, under no circumstances, be required to or have
a duty to grant any such extension and the granting of such extension
and the time of such extension shall be at the sole discretion of
the Director of Public Works and not subject to review or appeal.
The Director of Public Works may impose such conditions and limitations
on any such extension as the Director of Public Works deems appropriate.
If the time limit on a right-of-way permit naturally expires without
approval of an extension, said right-of-way permit shall be considered
conclusively terminated.
5.
An applicant whose application has been withdrawn, abandoned
or denied for failure to comply with the terms and provisions of this
Chapter shall not be refunded the application fee.
6.
In order to avoid excessive processing and accounting costs
to either the City or the applicant, the Director of Public Works
shall have the authority to establish procedures for bulk processing
of applications and periodic payment of fees.
E.
Insurance And Deposit.
1.
Posting Insurance. Before any right-of-way permit is issued, the applicant shall furnish proof of adequate insurance and protection to the City against all claims for damages arising from the prosecution of the work, as provided in Subsection (2) of this Section. The Director of Public Works shall waive this requirement if the applicant has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance with Federal, State, and/or local regulations.
2.
Deposit. The application for a right-of-way permit shall, in lieu of or in conjunction with the surety required by Subsection (A) of Section 525.040, include a cash deposit to insure the applicant will backfill the excavated site, repair the public right-of-way(s), and restore the excavated site in compliance with this Chapter.
a.
The approximate cost of granular backfill, repaving operations,
and general site restoration to be performed by an applicant will
be estimated by the Director of Public Works at the time the application
for a right-of-way permit is submitted, and the cost so estimated
shall be deposited with the City. The amount of the deposit shall
be reasonably sufficient to secure the City against any damage or
expense which may result from the applicant's failure to comply with
the provisions of this Chapter. The amount of such deposit shall be
based upon the location, purpose, and extent of the excavation. The
minimum amount of deposit shall be one hundred dollars ($100.00) for
any excavations conducted in street, sidewalks or driveway pavement
and the maximum deposit shall not exceed five thousand dollars ($5,000.00),
except where unusual circumstances exist.
b.
Each right-of-way permit shall have a separate cash deposit
to guarantee backfilling, paving, and site restoration in accordance
with this Chapter.
(1)
The applicant shall be responsible for maintenance
of the excavation site for thirty (30) days after completion of such
excavation. Settlement of the excavation or cracking, breaking, or
rutting of the surface shall be prima facie evidence of improper backfill,
which shall be replaced by the applicant or by the City with the cost
paid out of the deposit.
(2)
If the excavation is completed satisfactorily,
the deposit shall be refunded to the applicant within fifteen (15)
days of the final inspection by the Director of Public Works or his/her
authorized representative. The applicant shall be responsible for
notifying the Director of Public Works, in writing, of final completion
of the excavation. The final inspection will not be performed until
the thirty (30) day maintenance period is over.
(3)
In the event the applicant fails to complete or
correct the excavation required by this Section, the City may correct
or complete said excavation; and the cost to the City shall be paid
out of the deposit. In the event that such deposit is insufficient
to pay for the City's cost, or if no deposit was retained, the applicant
shall pay the excess cost to the City within thirty (30) days. Failure
to pay said costs shall constitute cause to deny future applications
of the applicant until such excess costs are fully paid to the City.
(4)
Failure of the applicant to call for the final
inspection within one (1) year of the issuance date of the right-of-way
permit shall result in the deposit being forfeited by the applicant,
and said deposit shall be paid to the City Treasury as general revenue.
3.
Liability Insurance Or Bond. Every applicant shall provide the
Director of Public Works with a certificate of insurance showing that
the applicant is maintaining liability insurance in the sum of one
hundred thousand dollars ($100,000.00) for bodily injury to each person,
and three hundred thousand dollars ($300,000.00) for bodily injury
to all persons in one (1) occurrence arising out of or on account
of excavation work on account of or in consequence of any neglect
in safeguarding the work. Such insurance shall be carried in a firm
or corporation which has been licensed or permitted to carry on such
business in the State and shall be kept and maintained continuously
in force and effect so long as the excavation work shall be in process.
A verified copy of the insurance policy shall be filed with the City
with the certificate of the insurer that the policy is in full force
and effect and that such insurance will not be altered, amended, terminated
or ended without notice having been given to the City. In lieu of
the insurance as herein provided, the applicant may deposit a corporate
or other surety bond in the sum of one hundred thousand dollars ($100,000.00)
conditioned that he/she will pay any judgment recovered by any person
injured or any property damage incurred on account of the excavation
work or on account of or in consequence of any neglect in safeguarding
the work. In the event the insurance policy provided for herein lapses
and is not immediately renewed, or any bond terminates in any manner
whatsoever and a substitute in lieu thereof is not deposited, the
right-of-way permit for such excavation shall be deemed immediately
revoked. The Director of Public Works shall waive this requirement
when the applicant has twenty-five million dollars ($25,000,000.00)
in net assets and does not have a history of non-compliance with Federal,
State, and/or local regulations.
F.
Denial Of Permits. The Director of Public Works may deny an application
for a right-of-way permit for one (1) or more of the following reasons:
1.
Applicant has failed to provide all the necessary information
required by the application, this Chapter, and the Director of Public
Works;
2.
Applicant has failed to return a public right-of-way to its
previous condition under a previously issued right-of-way permit or
after prior excavations by the applicant;
3.
The Director of Public Works has provided the applicant with
a reasonable, competitively neutral, and non-discriminatory justification
for requiring an alternative method for performing the work identified
in the application or a reasonable alternative route that will result
in neither additional installation expense up to ten percent (10%)
to the public utility right-of-way user nor a declination of service
quality;
4.
The Director of Public Works determines that denial is necessary
to protect the public health and safety, provided that the authority
of the City does not extend to those items under the jurisdiction
of the Public Service Commission, such denial shall not interfere
with a public utility's right of eminent domain of private property,
and such denial shall only be imposed on a competitively neutral and
non-discriminatory basis;
5.
The site is environmentally sensitive as defined by State Statute
or Federal law or is a Historic District as defined by local ordinance;
or
6.
Applicant has not paid any required fees, costs, or expenses
for a right-of-way permit or related to excavation in the public right-of-way.
G.
Applicable Fees.
1.
Any fees collected pursuant to this Section will be used only
to reimburse the City for its actual costs incurred in managing the
public right-of-way and will not be used to generate revenue to the
City above such costs, excluding legal fees relating to the interpretation
or enforcement of this Chapter, including all appeals.
2.
Fees for private connections for water and sewer service shall
be in conformance with the City's water and sewer ordinances.
3.
All right-of-way permit fees shall be doubled during a probationary
period.
5.
A right-of-way permit is required for excavation near gas and
hazardous liquid pipelines. There is no fee for this right-of-way
permit.
H.
Permit Revocation And Ordinance Violations.
1.
The Director of Public Works may revoke a right-of-way permit,
without fee refund, and impose a penalty in the amount of one hundred
dollars ($100.00) per day until the breach is cured, but only in the
event of a substantial breach of the terms and conditions of the right-of-way
permit. Prior to such revocation, the Director of Public Works shall
provide written notice to the permit holder identifying any substantial
breach and allowing a reasonable period of time not longer than thirty
(30) days for the permit holder to cure the substantial breach, but
such cure period may be shortened if the Director of Public Works
determines that a shorter time period for the cure is necessary in
the case of an emergency. The cure period shall be extended by the
Director of Public Works on good cause shown by the permit holder.
The term "substantial breach" as used in this Section, includes, but
is not limited to, the following:
a.
A material violation of a provision of the right-of-way permit
or this Chapter;
b.
An evasion or attempt to evade any material provision of the
right-of-way 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 application;
d.
A failure to complete work by the date specified in the right-of-way
permit, unless a permit extension is obtained from the Director of
Public Works, or unless the failure to complete the work is due to
reasons beyond the permit holder's control; and
e.
A failure to correct, upon reasonable inspection, notice and
opportunity to cure as specified by the Director of Public Works,
within the time specified by the Director of Public Works, excavation
that does not conform to applicable national safety codes, industry
construction standards, this Section or any other applicable ordinances,
provided that the City's ordinances are no more stringent than those
of the applicable national safety code(s).
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If the Director of Public Works determines that the permit holder
has committed a violation of any term or condition of any Statute,
ordinance, rule, regulation or any condition of the right-of-way permit,
the Director of Public Works shall provide the permit holder with
notice of the violation and shall make a written demand upon the permit
holder to remedy such violation. The demand shall state that continued
violation may be cause for revocation of the right-of-way permit and
for the imposition of other penalties as provided for by law. Further,
upon said violation, the Director of Public Works may, at his/her
discretion, place additional or revised conditions in the right-of-way
permit.
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2.
Within three (3) business days of receiving notification of
a violation, the permit holder shall contact the Director of Public
Works, in writing, and provide the same with a written plan, acceptable
to the Director of Public Works, to remedy the violation(s). A permit
holder's failure to so contact the Director of Public Works, failure
to submit an acceptable plan, or failure to reasonably implement the
approved plan shall be cause for immediate revocation of the right-of-way
permit. In addition to all other penalties provided for herein, a
permit holder's failure to so contact the Director of Public Works,
failure to submit an acceptable plan, or failure to reasonably implement
the approved plan shall automatically place the permit holder on probation
for one (1) full year.
3.
If a permit holder, while on probation, commits a violation
as outlined above, the permit holder's right-of-way permit will automatically
be revoked and the permit holder will not be allowed further right-of-way
permits for one (1) full year thereafter, except for emergency excavations.
4.
If the right-of-way permit is revoked, the permit holder shall
also reimburse the City for the City's reasonable costs, including
restoration costs and costs of collection, incurred in connection
with such revocation.
5.
In addition to the penalties hereinabove authorized and established,
the City Attorney may take such other actions at law or in equity
as may be required to halt, terminate, remove, or otherwise eliminate
any violation of the right-of-way permit and/or this Chapter.
I.
Coordination Of Construction Activities. All permit holders are required
to cooperate with the City and with each other as follows:
1.
By January fifteenth (15th) of each year, each permit holder
shall provide the Director of Public Works with a schedule of its
proposed construction activities, which may affect the public right-of-way
for the ensuing twelve (12) months. Failure to provide a schedule
on a timely basis may be considered in denial of a right-of-way permit
for the ensuing twelve (12) months.
2.
Each permit holder shall meet with the Director of Public Works
and other permit holders, either quarterly or as determined by the
Director of Public Works, to schedule and coordinate excavations.
J.
Appeal Procedure. An applicant may appeal any final decision of the
Director of Public Works to the Board of Aldermen, who shall consider
the appeal within thirty (30) days or at the next regular scheduled
Board of Aldermen meeting.
[Ord. No. 1843, 6-17-2020]
A.
Oversight Of Excavation.
1.
The performance of excavations in the public right-of-way shall
be in accordance with all applicable City ordinances, 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 the aforementioned laws, ordinances and standards, the most
stringent law, ordinance or standard shall apply (except insofar as
that law, ordinance or standard, if followed, would result in facilities
that could not meet the requirements of Federal, State or local law).
2.
Any contractor or subcontractor of a permit holder used for
the performance of excavation work in the public right-of-way shall
be properly licensed under the laws of the State and all applicable
City ordinances, and each such contractor or subcontractor shall have
the same obligations with respect to its work as a permit holder would
have pursuant to this Chapter. A permit holder:
a.
Must ensure that contractors, subcontractors and all employees
performing excavations are trained and experienced;
b.
Shall be responsible for ensuring that all excavations are performed
consistent with the right-of-way 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;
e.
Shall implement a quality control program to ensure that the
excavations are properly performed;
f.
Shall at all times conduct operations and perform the excavation
in a manner that will ensure the least possible obstruction to traffic,
as outlined in and in accordance with the Manual of Uniform Traffic
Control Devices, as published by the Federal Highway Administration,
as amended;
g.
Shall provide temporary facilities where and when necessary
to conveniently serve pedestrian travel over or through obstructions
at public walkways and at locations designated in the application;
and
h.
Shall direct traffic safely through the excavation site when
a roadway is partially blocked by the excavation.
3.
In excavating the public right-of-way, the excavated materials
shall be placed where they will cause the least possible inconvenience
to the public. If the excavated material is waste material, it shall
be immediately removed from the site.
4.
The width of excavation shall be no greater than is necessary
for doing the work, and sheathing and bracing shall be used as necessary
to keep the sides of the excavated site vertical and to prevent caving.
5.
Adequate provision for proper drainage of the excavation site
shall be maintained at all times.
6.
At no time shall the maximum length of an open trench be permitted
to exceed five hundred (500) feet.
7.
No trench or pit shall be permitted to remain open without work
actually in progress at each specific location for a period in excess
of three (3) full working days, Saturdays, Sundays and legal holidays
excepted.
8.
Excavation sites shall be covered or fenced when work is not
in progress. Excavations in roadways shall be backfilled or covered
with steel plates at the end of the workday to allow traffic to safely
cross over the excavation site.
9.
The permit holder shall give all emergency service providers
as well as the Director of Public Works three (3) working days' notice
to arrange for routing of emergency vehicles before streets are closed
to traffic. Access to fire hydrants shall not be obstructed without
approval of the Director of Public Works and the local Fire Chief.
10.
Unless for an emergency, no person shall make paving cuts or
curb cuts except after receiving approval of a right-of-way permit
therefor.
11.
Excavations shall be subject to periodic inspection by the City.
All excavation, alignment, depth, compaction and backfill materials
shall be subject to inspection by the City. Such inspection, however,
shall not relieve the permit holder from any obligation to perform
the excavation strictly in accordance with requirements of the plans
and technical specifications submitted with the application.
B.
Unacceptable And Unauthorized Work.
[Ord. No. 2047, 11-16-2022]
1.
The Director of Public Works shall have full access to all portions
of the excavation site and may issue stop work orders and corrective
orders to prevent unauthorized work, damage to improvements in the
right-of-way, or defective work, or to require repairs to improvements
damaged by such work. Such corrective or stop work orders shall state
that either: i) work not authorized by the right-of-way permit is
being carried out; ii) improvements in the right-of-way were damaged
by any work in the right-of-way; or iii) work authorized by a right-of-way
permit is defective. The corrective or stop work order shall also
provide a period of not more than thirty (30) days to cure unless
a time extension is approved by the Director of Public Works, which
cure period may be shortened if certain activities must be ceased
to protect the public safety, and may be delivered personally or by
certified mail to the address listed on the application or to the
person in charge of the excavation site at the time of delivery. Such
orders may be enforced by equitable action in the Circuit Court of
St. Charles County, Missouri, and if the City prevails in such case,
the person involved in the excavation, by acceptance of the right-of-way
permit, agrees to be liable for all costs and expenses incurred by
the City, including reasonable attorney's fees, in enforcing such
order, in addition to any and all penalties established in this Chapter.
2.
Any person who engages in excavation in the public right-of-way
and who has not received a valid right-of-way permit from the City
shall be subject to all penalties provided in this Chapter. Except
in those instances where excavations must be performed on an emergency
basis, the City may, in its discretion, at any time until a right-of-way
permit is secured, order the excavation ceased and do any of the following:
a.
Require such person to apply for a right-of-way permit within
thirty (30) days of receipt of a written notice from the City that
a right-of-way permit is required;
b.
Require such person to remove its property and restore the affected
public right-of-way to a condition satisfactory to the City; or
c.
Take any other action it is entitled to take under applicable
law, including, but not limited to, filing for and seeking damages
for trespass.
3.
Records. Public utility right-of-way users that maintain more
than one thousand (1,000) lineal feet of facilities within the public
right-of-way shall keep complete and accurate maps and records of
the location of their facilities and shall, within twelve (12) months
of the passage of this Chapter, file with the Director of Public Works
a current base map of those portions of their systems which lie within,
run through, or over public right-of-way. Base maps furnished to the
Director of Public Works shall show the location of facilities and
their relationship to existing streets or public right-of-way. Base
map updates shall be provided to the Director of Public Works annually
by January 15. Applicants shall submit updated plans to the Director
of Public Works for approval whenever a project involves new construction
or the excavation of public right-of-way.
4.
Assignment Of Permit. The rights granted by a right-of-way permit
inure to the benefit of the applicant. The rights shall not be assigned,
transferred, sold or disposed of, in whole or in part, by voluntary
sale, merger, consolidation or otherwise by force or involuntary sale
without the prior, express written consent of the City. Any such consent
shall not be required for assignment to entities that control, are
controlled by, or are under common control with the applicant.
5.
Termination Of Permit And Removal Of Installations. Upon termination
of a right-of-way permit, the City may order the removal of any of
the applicant's facilities installed under the right-of-way permit,
and if applicant should refuse, the City may remove such facilities
at the applicant's expense.
C.
Construction Standards.
1.
All new facilities shall be constructed underground except for
facilities that are required to be located above ground and except
in areas that have been designated as overhead corridors by the Director
of Public Works. In cases where facilities will be placed underground,
the permit holder shall give to all public utility right-of-way users
registered hereunder reasonable written advance notice of the particular
date on which open trenching will be available for installation of
facilities.
2.
Existing underground conduits or overhead facilities shall be
used whenever feasible and permitted by the owner thereof. No person
may erect new poles or similar structures within the public right-of-way
without the prior, express written consent of the Director of Public
Works.
3.
A public utility right-of-way user shall not place facilities
where they will damage or interfere with the use or operation of existing
facilities, or obstruct or hinder the various public utilities serving
the residents and businesses in the City.
4.
The permit holder shall be responsible to inform the Director
of Public Works of any damage to City property. The permit holder
shall be responsible to inform any other public utility right-of-way
user of possible damage to their facilities. The permit holder is
fully responsible for reimbursing public utility right-of-way users
for damages caused by the permit holder's work to facilities whose
existence and approximate locations were known or should have been
known before the damage was done. Nothing in this Chapter shall make
the permit holder liable for damage to facilities located below the
ground surface, in the absence of negligence, if the public utility
right-of-way user, after reasonable notice from the permit holder,
fails to advise the permit holder of its location and approximate
depth below the ground surface.
5.
In the discretion of the Director of Public Works, prior to
directional boring, critical existing City facilities shall be located
by digging a hole large enough to visually inspect the facilities
at proposed crossing locations. To prevent damage to existing facilities,
the boring operation shall be visually monitored during the placement
of new facilities.
6.
Any and all public right-of-way or facilities disturbed or damaged
during the excavation shall be promptly repaired or replaced, or caused
to be promptly repaired or replaced, to its previous condition by
the permit holder or, at the Director of Public Works' discretion,
by the City, at the permit holder's expense.
D.
Manner Of Backfilling, Repaving And Site Restoration.
1.
A permit holder, after an excavation of a public right-of-way,
shall provide for restoration of the public right-of-way 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 of Public Works.
Restoration of the public right-of-way and surrounding areas shall
be completed within the dates specified in the right-of-way permit
unless the Director of Public Works issues a waiver, extension or
a new or amended right-of-way permit.
2.
It shall be the duty of any person making an excavation within
a public right-of-way to backfill such excavations and restore the
surface in accordance with the City's minimum prescribed standards
for such surfaces or the following standards as determined by the
Director of Public Works.
a.
Excavations made in or under the street, walk or driveway pavement
shall be backfilled with granular material thoroughly tamped into
place, and the pavement surface restored. In such locations, excavated
materials shall be removed from the site of the work as the excavation
is made, and no such materials shall be allowed to accumulate on the
site.
b.
Substitution may be made for granular backfill or pave restoration
only with the specific approval of the Director of Public Works in
each instance.
c.
Approved granular backfill material shall be composed of one
(1) inch minus crushed stone or gravel and sand, free from clay lumps
and trash and conforming to industry standards for sieve analysis.
d.
The granular backfilling material shall be at the excavation
site at the time of the inspection by the Director of Public Works
so he/she can determine compliance with aggregate specifications.
Granular backfill shall be placed in horizontal layers not greater
than six (6) inches thick before compaction and shall be densified
by mechanical tamping or inundating and vibration or jetting. Each
layer of fill material shall be compacted to ensure the desired compaction
and density which shall be not less than ninety-five percent (95%)
standard compaction. During placement, care shall be taken to avoid
undue segregation of coarse and fine particles.
e.
Asphaltic concrete pavement, macadam pavement, or bituminous
pavement shall be restored as follows:
Excavation edges shall be cut straight to a minimum depth of
two (2) inches and squared with a concrete saw. The edge shall be
primed and an asphaltic concrete shall be placed on the compacted
backfill. The depth of asphaltic concrete shall be eight (8) inches
placed in layers not greater than three (3) inches or less than one
(1) inch. Each layer shall be thoroughly compacted and the surface
shall be smooth and free of ruts matching the existing pavement to
support traffic without rutting or settling.
f.
Concrete pavement shall be restored as follows:
Excavation edges shall be straight, cut full depth and squared
with a concrete saw or replaced to a joint. A six (6) sack Portland
cement concrete shall be placed on the compacted backfill. The concrete
thickness shall be seven (7) inches minimum. The concrete surface
shall be finished to match the surrounding finishes. The concrete
shall be protected from traffic for seven (7) days.
g.
Curbs shall be restored as follows:
The existing remaining curb shall be cut straight with a concrete
saw or removed to a joint. The new curb shall match (asphaltic concrete
or Portland cement concrete), shape, and style of the existing curbs.
Concrete curbs shall be reconstructed with six (6) sack Portland cement
concrete.
h.
Excavations in parkways, outside of the paved area may be backfilled
with earth, and all grassed areas returned to their original condition
by sodding or seeding as directed by the Director of Public Works.
Earth backfill is to be placed and compacted in the same manner as
described in this Section for granular fills or thoroughly jetted
to obtain maximum settlement, and shall be maintained by the applicant
until the site has been stabilized in the original condition. As soon
as the excavation has been backfilled, all excess excavated materials
shall be removed from the site and disposed of.
3.
If a permit holder fails to restore the public right-of-way
and surrounding areas within the date specified by either the right-of-way
permit or any extension thereof as granted by the Director of Public
Works, the City may perform its own restoration. The City may also
opt to perform its own restoration regardless of any failure by the
permit holder, in which case the right-of-way permit or any amendment
or revision thereto shall note such option. In either event, if the
City performs the restoration, the permit holder shall be responsible
for reimbursing the City's reasonable actual restoration costs within
thirty (30) days of invoice.
4.
A permit holder 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.
E.
Every permit holder to whom a right-of-way permit has been granted
shall guarantee for a period of four (4) years after the inspection
the restoration of the public right-of-way in the area where the permit
holder conducted an excavation and performed the restoration. During
this period the permit holder shall, upon notification from the Director
of Public Works, correct all restoration work to the extent necessary
as required by the Director of Public Works. Said restoration work
shall be completed within a reasonable time, not to exceed thirty
(30) calendar days from receipt of the Director of Public Works' notice
unless otherwise permitted by the Director of Public Works. If a permit
holder fails to restore the public right-of-way within the time specified,
the City may perform the work and said permit holder shall be responsible
for reimbursing the City's reasonable actual restoration costs within
thirty (30) days of invoice. The Director of Public Works may extend
the cure period on good cause shown.
F.
Inspection Of Backfill Material And Pavement Replacement. Backfill
material must be approved by the Director of Public Works. In the
event backfill material is not approved by the City, all such backfill
must be removed and replaced under the Director of Public Works' supervision.
Pavement shall be replaced only upon inspection by the City.
G.
Interference With Traffic And Driveways — Restoration Of Surfaces.
The performance of all excavations regulated by this Section shall
be made in such manner as not to inconvenience or interfere with the
public use or travel upon the public right-of-ways or other public
places when possible. When such use is unavoidably obstructed, the
permit holder conducting such excavations shall exercise all reasonable
dispatch in prosecuting the work so that the public use will not be
obstructed beyond a reasonable time. All public right-of-way or other
public places disturbed, interfered with, or injured in performing
such excavations shall be restored, replaced, and repaired to as good
condition as they were before such excavation was conducted.
H.
Barricades, Signs, Lights, And Warning Signals. A permit holder performing
excavation in the public right-of-way shall provide, erect, and maintain
at all times along the line of the work such barricades, signs, lights,
and warning signals as may be necessary to advise, warn, and protect
the public from the hazards arising from the excavation. All traffic
control devices shall be in accordance with the Manual on Uniform
Traffic Control Devices as published by the Federal Highway Administration,
as amended.
I.
Protection Of Public As To Excavations Near Public Ways. No person
shall make, cause, or permit any opening near any public right-of-way
to be left open and unguarded so as to be dangerous to persons passing
along said public right-of-way.
J.
Inspections And Final Acceptance.
1.
All excavations performed and/or to be performed on the public
right-of-way shall be subject to inspection by the City to ensure
compliance with all applicable laws, ordinances, rules, regulations
and the right-of-way permit. Inspection fees for each inspection performed
shall be forty dollars ($40.00). A minimum of one (1) inspection shall
be required for each right-of-way permit, provided that a final inspection
shall be conducted by the Director of Public Works or his/her authorized
representative no later than forty-five (45) days after the final
completion of the excavation. The permit holder shall be responsible
for notifying the Director of Public Works of final completion of
the excavation. The final inspection will not be performed until the
thirty (30) day maintenance period is over.
2.
If any excavation work is found to be unsatisfactory or incomplete,
instructions for correction will be issued and another inspection
will be made after the Director of Public Works receives notice that
the instructions for correction have been completed. Before final
acceptance of the completed excavation work, the permit holder shall
remove all surplus and discarded materials, equipment, rubbish and
temporary structures.
3.
Approval of the excavation work, as provided for herein, shall
not relieve the permit holder of any financial liabilities imposed
on the permit holder, nor shall it constitute final acceptance for
maintenance by the City of the facilities. Final acceptance of the
excavation work will not be made until one (1) calendar year after
completion of the excavation and its re-inspection to confirm its
continued compliance with the plans and technical specifications submitted
with the application.
[Ord. No. 1843, 6-17-2020]
A.
Performance Bond.
1.
Prior to any excavation in the public right-of-way, a permit
holder shall establish in the City's favor a performance bond or letter
of credit in an amount determined by the Director of Public Works
to be necessary to ensure the permit holder's faithful performance
of the excavation. Differences in bond requirements, including provisions
for self-insurance or provisions for a single continuing bond where
excavations are conducted by the same applicant under numerous right-of-way
permits, may be established by regulation based on the extent or nature
of the excavation and the past performance of the applicant. In lieu
of a performance bond, permit holders may provide an acceptable letter
of credit with the approval of the Director of Public Works.
a.
Five hundred dollars ($500.00) cash shall be deposited with
the City for each permitted instance of excavations occurring behind
the curb.
b.
One thousand five hundred dollars ($1,500.00) cash deposit or
performance bond shall be established for each permitted instance
of excavations occurring in or under street pavement.
c.
All public utility right-of-way users with permitted excavations occurring in the City of Cottleville public right-of-way, except those owners meeting the requirements of Section 67.1830(6)(a), RSMo., as amended, shall establish a fifty thousand dollars ($50,000.00) "blanket" performance bond, renewable annually, in lieu of the requirement of Subsections (A)(1)(a) and (A)(1)(b) of this Section 525.040.
d.
The bond shall continue in full force and effect for a period
of twenty-four (24) months following completion of the work.
e.
The Director of Public Works shall have the authority to extend
the performance maintenance bond period for up to an additional twenty-four
(24) months.
f.
The Engineer may waive this requirement when the work involves
no or only minor disruption or damage to the public right-of-way.
g.
The Director of Public Works shall waive this requirement when
the permit holder has twenty-five million dollars ($25,000,000.00)
in net assets and does not have a history of non-compliance with Federal,
State, and/or local regulations.
2.
In the event an applicant fails to complete the excavation in
a safe, timely and competent manner, there shall be recoverable, jointly
and severally from the principal and surety of the bond, any damage
or loss suffered by the City as a result, plus a reasonable allowance
for attorney's fees, up to the full amount of the bond or letter of
credit.
3.
Upon completion of the excavation to the satisfaction of the
Director of Public Works, the Director of Public Works shall eliminate
the performance bond or reduce its amount after a time appropriate
to determine whether the excavation was satisfactory, which time shall
be established by the Director of Public Works considering the nature
of the excavation performed.
4.
A performance bond shall be issued by a surety 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.
In the event that an excavation is not refilled within a reasonable
time after it is ready for refilling, the Director of Public Works
shall notify the permit holder making the excavation that if such
excavation is not filled within four (4) days, it shall be filled
by the City. The charge for the cost of such work shall be paid by
the permit holder within ten (10) days after completed and no additional
right-of-way permit shall be issued to that person after that time,
unless such charge has been paid.
6.
In the event that the applicant fails to backfill, repair or
repave any excavations made within the public right-of-way, the Director
of Public Works, at his/her discretion, shall repair said cut with
City employees or contract the repair to be made and charge the applicant
for the full contract cost of repair. If the City makes the repair
with City employees, the charges shall be based on the unit price
paid on the most recent street improvement or pavement repair contract
entered into by the City.
B.
Cost Recovery. In the event the City incurs additional costs as a
direct result of an unauthorized action or an inaction by any person
and/or public utility right-of-way user, the City shall have the right
to recover from that owner or person any and all documentable costs
incurred, including, but not limited to, the identification of undocumented
facilities, completion of improper excavations, long-term structural
damage, construction delay fees and penalties, fees paid to other
agencies and any other documentable costs incurred by the City within
the public right-of-way.
C.
Penalties. For each violation of provisions of this Chapter, or a
right-of-way permit granted pursuant to this Chapter as to which the
City has given notice to applicant as provided in this Chapter, penalties
may be chargeable to the applicant at a rate not exceeding five hundred
dollars ($500.00) per day for so long as the violation continues.
[Ord. No. 1843, 6-17-2020]
Whenever, by reason of present or future City use of public
right-of-way, a public improvement is undertaken by the City, or changes
in the grade or widening of a street or in the location or manner
of constructing a water pipe, drainage channel, sewer or other City-owned
underground or above ground facility or structure is made, and it
is deemed necessary by the City to move, alter, change, adapt or conform
the underground or above ground facilities of a public utility right-of-way
user, the public utility right-of-way 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 at the public utility right-of-way user's expense without
claim for reimbursement or damages against the City. Failure to promptly
comply with such written order shall be deemed unlawful.
[Ord. No. 1843, 6-17-2020]
A.
A public utility right-of-way user who has discontinued its use of
facilities in the public right-of-way must either:
1.
Provide information satisfactory to the Director of Public Works
that the public utility right-of-way user's obligations for its facilities
in the right-of-way under this Chapter have been lawfully assumed
by another public utility right-of-way user; or
2.
Submit to the Director of Public Works a proposal and instruments
for transferring ownership of its facilities to the City. If a public
utility right-of-way user proceeds under this clause, the City may,
at its option:
a.
Purchase the facilities;
b.
Require the public utility right-of-way user, at its own expense,
to remove the facilities; or
c.
Require the public utility right-of-way user to post a bond
in an amount sufficient to reimburse the City for reasonably anticipated
costs to be incurred in removing the facilities.
B.
Facilities of a public utility right-of-way user who fails to comply with Section 525.060(A) of this Chapter and which, for two (2) years, remain unused shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. The City may exercise any remedies or rights it has at law and in equity, including, but to limited to:
C.
Any public utility right-of-way user who has abandoned facilities
in any public right-of-way shall remove the facilities at a time and
manner determined by the Director of Public Works.
[Ord. No. 1843, 6-17-2020]
A.
Applicant Subject To Other Laws, Police Power.
1.
An applicant shall at all times be subject to all lawful exercise
of the police powers of the City, including, but not limited to, all
powers regarding zoning, supervision of the restoration of the right-of-way,
and control of public right-of-way.
2.
No action or omission of the City shall operate as a future
waiver of any rights of the City under this Chapter.
3.
Except where rights are expressly granted or waived by a right-of-way
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.
B.
Future Uses. In placing any facility, or allowing it to be placed
in the public right-of-way, the City is not liable for any damages
caused thereby to a facility which is already in place.
C.
Franchise Not Superseded. Nothing herein shall be deemed to relieve
an applicant or the City of the provisions of an existing franchise,
license or other agreement or permit.
D.
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.
E.
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.
F.
Force Majeure. An applicant shall not be deemed in violation of provisions
of this Chapter where performance was rendered impossible by acts
of God or the public enemy, epidemics, war or riots, civil disturbances,
quarantine restrictions, labor strikes, freight embargoes, fires,
floods, unusually severe weather or other natural catastrophes beyond
the applicant's control, and a right-of-way 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 right-of-way permit without unduly endangering the health
and safety of the applicant's employees or property, the public, public
right-of-way, public property or private property.
G.
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 right-of-way permit, and a period of time is prescribed
and is fixed herein, the time shall be computed so as to exclude the
first (1st) and include the last day of the prescribed or fixed period
of time.
H.
Severability. If any Section, Subsection, sentence, clause, phrase,
term, condition or provision of this Chapter shall, to any extent,
be held to be invalid, unenforceable or unconstitutional by any court
or administrative agency of competent jurisdiction, such portion shall
be deemed a separate, distinct and independent provision and such
holding shall not affect the validity of the remainder hereof and
shall be valid in all other respects and continue to be effective.
In the event of a subsequent change in applicable law so that the
provision that has been held invalid is no longer invalid, said provisions
shall thereupon return to full force and effect without further action
by the City and shall thereafter be binding on the applicant and the
City. If a right-of-way permit, right or registration shall be considered
a revocable right-of-way permit as provided herein, the permit holder
must acknowledge the authority of the Board of Aldermen to issue such
revocable right-of-way permit and the power to revoke it. Nothing
in these ordinances precludes the City from requiring a franchise
agreement with the applicant, as allowed by law, in addition to requirements
set forth herein.
I.
Eminent Domain. Nothing herein shall be deemed or construed to impair
or affect, in any way or to any extent, any right the City may have
to acquire the property of the applicant through the exercise of the
power of eminent domain.
J.
Annexation. The provisions of this Chapter shall specifically apply
to any lands or property annexed as of the date of such annexation.
K.
Savings Clause. Nothing contained herein shall in any manner be deemed
or construed to alter, modify, supersede, supplement or otherwise
nullify any other ordinances of the City or requirements thereof,
whether or not relating to in any manner connected with the subject
written hereof, unless expressly provided otherwise herein or hereafter.
