Editor's Note — Former Chapter 520, Street Excavations,
containing Sections 520.010 through 520.200, was repealed 3-19-2024
by Ord. No. 2846. Prior history includes: Ord. No.
1867 §I, 7-21-2009. Previously,
Ord. no. 1867 §I, adopted July 21, 2009, repealed ch. 520 with
a prior history as follows: R.O. 2006 §§520.010 —
520.080; ord. no. 719 §4, 3-3-92; ord. no. 1341, 9-16-03; ord.
no. 1444 §1, 9-21-04.
[Ord. No. 2846, 3-19-2024]
For the purpose of this Chapter, the following terms, phrases,
words and abbreviations shall have the meanings given herein, unless
otherwise expressly stated.
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 pursuant to
this Chapter.
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.
Drilling or pushing casing under a public right-of-way without
affecting the top surface.
The City of Warrenton, 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 real property owned in fee, leased or to which the City
has any other legal interest by way of an easement, license dedication
or otherwise.
Any person contracting with a public utility right-of-way
user or permit holder to do work within a public right-of-way.
Shall have the same meaning as set forth in Section 405.050 of this Code.
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.
The officially designated Director of the City or his/her
designee.
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. 2846, 3-19-2024]
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 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.
Emergency
Work. In cases where excavations must be conducted within the public
right-of-way on an emergency basis, obtaining a right-of-way permit
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 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 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.
C.
Permit
Applications and Application Fee.
1.
Application Content. Applications shall be submitted to the Director.
The application shall be accompanied by the fees as set forth in this
Section. Applications shall be submitted on forms prepared by the
Director 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 with reasonable advance notice of such
dates once they are determined.
e.
Information sufficient for the Director 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 pursuant to this Chapter.
g.
Any additional information that the Director 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 fifty dollars ($50.00) 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 this Chapter.
D.
Application
Review And Determination.
1.
The Director 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 520.020, the Director shall issue a right-of-way permit upon determining that the applicant:
2.
The Director 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 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 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 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 prior to the expiration of said right-of-way permit.
Upon receiving a request for an extension, the Director is authorized
to extend the time of such right-of-way permit subject to the same
standards for approval of a right-of-way permit, as set forth in this
Chapter. The Director may impose such conditions and limitations on
any such extension as the Director deems appropriate. If the time
limit on a right-of-way permit 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 shall have the authority to
establish procedures for bulk processing of applications and periodic
payment of fees.
E.
Insurance.
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 (E)(3) of this Section. The
Director 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.
Liability Insurance. Applicant shall provide at its sole expense,
and maintain during the term of the permit, commercial general liability
insurance with one million dollars ($1,000,000.00) per accident limits,
combined single limits with an insurer rated at least A-VII by AM
Best and eligible to do business in the State of Missouri, unless
otherwise approved by the Director, that shall protect the applicant
as a named insured and the City, and other City officials, officers,
and employees as additional insureds from class claims which may arise
from operations under the permit, whether such operations are by the
applicant, its officers, directors, employees and agents, or any subcontractors
of the applicant. The City's additional insured status shall:
a.
Be limited to bodily injury, property, damage or personal and advertising
injury caused, in whole or in part, by applicant, its employees, agents
or other independent contractors or facilities;
b.
Not extend to claims where such coverage is prohibited by law or
to claims arising out of the gross negligence of City, its employees,
agents or independent contractors; and
c.
Not exceed applicant's indemnification obligation under the permit,
if any.
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This liability insurance shall include, but shall not be limited
to, protection against claims arising from bodily and personal injury
and damage to property resulting from all applicant operations, facilities,
products, services or use of automobiles, or construction equipment.
The amount of insurance for commercial general liability insurance
applying to bodily and personal injury and property damage shall be
two million five hundred thousand dollars ($2,500,000.00) per occurrence
and in the aggregate, but in no event less than the individual and
combined sovereign immunity limits established by the Section 537.610,
RSMo., for political subdivisions; provided that nothing shall be
deemed to waive the City's sovereign immunity. Evidence shall be provided
which provides that the City is listed as an additional insured. The
permit holder shall provide at least thirty (30) days' advance written
notice to the City of cancellation of any required coverage that is
not replaced. Notwithstanding the forgoing, the applicant may, in
its sole discretion, self-insure any of the required insurance under
the same terms as required by this Section. The insurance requirements
in this Section or other otherwise shall not apply to applicant to
the extent and for such period during the permit as the applicant
is exempted from such requirements pursuant to Section 67.1830(6)(a),
RSMo., has on file with the City Clerk an affidavit certifying that
the applicant has twenty-five million dollars ($25,000,000.00) in
net assets and the facts otherwise establishing that the applicant
is therefore so exempt.
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F.
Denial
Of Permits. The Director 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;
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 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 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.
All right-of-way permit fees shall be doubled during a probationary
period.
4.
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 may revoke a right-of-way permit, without fee refund,
and impose a permit surcharge 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 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 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 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, 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, within the time specified by
the Director, 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 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
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
may place additional or revised conditions in the right-of-way permit
deemed necessary to the Director to ensure compliance with the provisions
of this Chapter.
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2.
Within three (3) business days of receiving notification of a violation,
the permit holder shall contact the Director, in writing, and provide
the same with a written plan, acceptable to the Director, to remedy
the violation(s). A permit holder's failure to contact the Director,
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 contact the Director, 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 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 and other permit
holders, either quarterly or as determined by the Director, to schedule
and coordinate excavations.
J.
Appeal
Procedure. An applicant may appeal any final decision of the Director
to the City Administrator, who shall consider the appeal within thirty
(30) days.
[Ord. No. 2846, 3-19-2024]
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 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
and the Chief of the local Fire Protection District.
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.
1.
The Director shall have full access to all portions of facilities
work and may issue stop work orders and corrective orders to prevent
unacceptable or unauthorized work to 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.
a.
Unauthorized Work. In the case of unauthorized work, such corrective
or stop work orders shall state that work not authorized by the permit
is being carried out, summarize the unauthorized work and provide
a period of no longer than thirty (30) days to cure the problem unless
a time extension is approved by the Director, which cure period may
be shortened if certain activities must be ceased to protect the public
safety and may be delivered personally or by certified mail to the
address listed on the application for permit or to the person in charge
of the facilities work site at the time of delivery.
b.
Unacceptable Work. Unacceptable work shall include circumstances
where real or personal property has been damaged in the vicinity of
facilities work being performed by a permit holder or their contractor
and the Director has reasonable suspicion to believe that the damage
was caused as a result of the facilities work. In such circumstances,
the Director is authorized to issue a stop work order for a period
of time not to exceed thirty (30) days. During the stoppage, the Director
shall investigate the cause of the real or personal property damage.
If the Director finds that the real or personal property damage was
caused by the facilities work, the Director may issue a corrective
order or revoke the permit pursuant to this Chapter.
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Such orders may be enforced by equitable action in the Circuit
Court of Warren County, Missouri, and if the City prevails in such
case, the person involved in the facilities work, by acceptance of
the permit, agrees to be liable for all costs and expenses incurred
by the City, including reasonable attorney's fees, in enforcing such
order, in addition to any and all penalties established in this Section.
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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 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 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 annually
by January fifteenth (15th). Applicants shall submit updated plans
to the Director 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 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 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 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. 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.
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
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.
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's discretion, by the City, at
the permit holder's expense.
7.
For purposes of the preserving the safety of the public, those that
live near any proposed excavation site, the permit holder of any permit
authorizing excavation which is to occur directly adjacent to property
that has a residential dwelling located thereon must deliver written
notice to the address of each such dwelling not less than one (1)
week prior to beginning excavation, informing the occupant(s) of the
scheduled excavation times, including when such excavation will be
complete.
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. 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
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.
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 in each instance.
c.
Approved granular backfill material shall be composed of one (1)
inch minus crushed stone or gravel, 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 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 mix of
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. 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, 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,
correct all restoration work to the extent necessary as required by
the Director. Said restoration 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
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
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. In the event backfill material is not
approved by the City, all such backfill must be removed and replaced
under the Director's 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 Director to ensure compliance
with all applicable laws, ordinances, rules, regulations and the right-of-way
permit. 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 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 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 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. 2846, 3-19-2024]
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 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.
a.
One thousand dollars ($1,000.00) cash shall be deposited with the
City for each permitted instance of excavations occurring behind the
curb.
b.
Two thousand dollars ($2,000.00) 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 Warrenton public right-of-way, except those owners meeting the requirements of Section 67.1830(6)(a), RSMo., as amended, shall establish a fifty thousand dollar ($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 520.040.
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 shall have the authority to extend the performance bond
period for up to an additional twenty-four (24) months.
f.
The Director may waive this requirement when the work involves no
or only minor disruption or damage to the public right-of-way.
g.
The Director 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,
the Director 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 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 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,
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.
[Ord. No. 2846, 3-19-2024]
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.
[Ord. No. 2846, 3-19-2024]
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 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 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 520.060(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.
[Ord. No. 2846, 3-19-2024]
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.
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.
I.
Annexation.
The provisions of this Chapter shall specifically apply to any lands
or property annexed as of the date of such annexation.
