[Ord. No. 1310 §§1, 3, 7-9-2003]
Except as provided herein, this Chapter shall apply to all excavation
and use, construction, operation, and maintenance of facilities, in,
across, under or over all public rights-of-way within the City.
[Ord. No. 1310 §§1, 3, 7-9-2003]
Definitions And Word Usage. For the purposes
of this Chapter, the following terms, phrases, words and abbreviations
shall have the meanings given herein, unless otherwise expressly stated.
When not inconsistent with the context, words used in the present
tense include the future tense and vice versa, words in the plural
number include the singular number, and vice versa, and the masculine
gender includes the feminine gender and vice versa. The words "shall"
and "will" are mandatory, and "may" is permissive. Unless otherwise
expressly stated or clearly contrary to the context, terms, phrases,
words, and abbreviations not defined herein shall be given the meaning
set forth in the City Code, and if not defined therein, their common
and ordinary meaning.
The specific person applying for and receiving a permit for
facilities work.
That form designed by the City of Platte City which an applicant
must use to obtain a permit to conduct facilities work within, across,
under, or over the City's rights-of-way.
The governing body of the City of Platte City, Missouri.
The City of Platte City, Missouri and its agencies, departments,
agents, and employees acting within their respective areas of authority.
The City Engineer or his/her designee.
The City Administrator or his/her designee.
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, uncovered,
removed, or otherwise displaced by means of any tools, equipment or
explosives, except that, any de minimis displacement or movement of
ground caused by pedestrian or vehicular traffic which does not materially
disturb or displace surface conditions of the earth, asphalt, concrete,
sand, gravel, rock or any other material in or on the ground shall
not be deemed excavation, or such other activities excluded by applicable
law from these regulations.
Any conduit, duct, line, pipe, wire, hose, cable, culvert,
pole, receiver, transmitter, satellite dish, micro call, Pico cell,
repeater, amplifier, or other device, material, apparatus, or medium,
usable (whether actually used for such purpose or not) for the transmission
or distribution of any service or commodity installed below or above
ground within the public rights-of-way of the City, whether used privately
or made available to the public. Facilities shall not include minor
residential or other incidental uses such as mailboxes, driveway aprons,
private utility connections or other such non-service related incidental
facilities which may be permitted by special permit issued by the
City Engineer.
The installation of new facilities, or any change, replacement,
relocation, removal, alteration or repair of existing facilities,
that requires excavation within the public rights-of-way, except for:
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.
Work that will not disrupt any pavement, drainage systems
or other structures.
8:00 A.M. to 5:00 P.M. Central Standard Time, Monday through
Friday.
A permit granted by the City Engineer to do the facilities
work within the public rights-of-way.
An individual, partnership, limited liability company, corporation,
association, joint stock company, trust, organization, or other entity,
or any lawful successor thereto or transferee thereof.
A written plan of work prepared and presented by an applicant
that encompasses an outlined scope of work to be conducted within
the City's right-of-way.
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 including the municipal utility
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.
No reference herein, or in any permit, to "Public Rights-of-Way"
shall be deemed to be a representation or guarantee by the City that
its interest or other right to control the use of such property is
sufficient to permit its use for such purposes.
The term "Rights-Of-Way User" or "ROW-User"
shall mean such persons and entities maintaining or installing facilities
in the public rights-of-way of the City that provide a service for
or without a fee including, but not limited to, every cable television
service provider, 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, poles, 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, and all
other persons or entities installing or maintaining facilities in
the public rights-of-way of the City not otherwise expressly exempted.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Agreement Or Franchise Required. Except when otherwise authorized
by applicable law, no ROW-User may construct, maintain, own, control,
or use Facilities in the Rights-of-Way without a franchise or ROW
agreement with the City as provided herein. All such franchises and
agreements shall be approved by ordinance of the Board on a non-discriminatory
basis provided that the applicant is in compliance with all applicable
requirements. Such franchises and agreements shall be deemed to incorporate
the terms of this Chapter and other applicable laws of the City, except
as may be expressly stated in such agreements and franchises. Reseller
Service ROW-Users shall not be required to obtain a franchise or agreement
but shall be required to register with the City prior to providing
service on forms provided by the City.
1.
Franchise. A franchise shall be obtained in conformance
with all applicable franchise procedures for any ROW-User seeking
to use the Rights-of-Way for purposes of providing cable television
service, or distribution of electricity, gas, water, steam, lighting,
or sewer public utility service in the City. Such franchise may be
granted only after a public hearing and on satisfaction of all other
applicable procedural or substantive requirements. ROW-Users shall
also be subject to the City's Cable Television Services Ordinance
or other ordinances of the City applicable to specific uses of the
ROW, to the extent permitted under applicable law.
2.
ROW agreement. A ROW agreement shall be required for all ROW-Users not set forth in Subsection (1), except as otherwise required herein or by law. Such agreements shall conform to all applicable law, but shall not be subject to procedures applicable to franchises and the City may, if appropriate, approve form agreements that may be executed by the City Administrator after approval by the Board.
3.
Incidental uses. Incidental uses of the public Rights-of-Way
may be permitted without a franchise or ROW agreement pursuant to
a right-of-way excavation permit issued by the Public Works Director.
The Public Works Director may establish such application, requirements
and conditions applicable to such uses consistent with the purposes
of this Chapter or as otherwise established by law.
B.
Franchises And Agreements Non-Exclusive. The authority granted
by the City in any agreement or franchise shall be for nonexclusive
use of the Rights-of-Way. The City specifically reserves the right
to grant, at any time, such additional agreements or other rights
to use the Rights-of-Way for any purpose and to any other person,
including itself, as it deems appropriate, subject to all applicable
law. The granting of an agreement or franchise shall not be deemed
to create any property interest of any kind in favor of the ROW-User.
C.
Lease Required For Public Lands. Unless otherwise provided,
use or installation of any Facilities in, on or over public lands
of the City not constituting Rights-of-Way shall be permitted only
if a lease agreement or other separate written approval has been negotiated
and approved by the City with such reasonable terms and conditions
as the City may require.
D.
Application For Franchise Or Agreement Required.
1.
Application. An application for franchise or ROW
agreement shall be presented to the City Administrator in writing
and shall include all such information as is required by this Section.
The ROW-User shall be responsible for accurately maintaining the information
in the application during the term of any franchise or agreement and
shall be responsible for all costs incurred by the City due to the
failure to provide or maintain as accurate any application information
required herein.
2.
Application fee. An application fee for review,
documentation and approval of such agreement or franchise shall be
established by the City Administrator to recover any actual costs
anticipated and incurred by the City in reviewing, documenting, or
negotiating such agreement or franchise, including reasonable legal
fees, provided that no costs, if any, of litigation or interpretation
of Sections 67.1830 or 67.1832, RSMo., shall be included if such inclusion
is prohibited by law as to that applicant. If the actual costs are
thereafter determined to be less than the application fee, such amount
shall be returned to the applicant after written request therefrom;
if the actual costs exceed the application fee, applicant shall, after
written notice from the City, pay such additional amount prior to
issuance by the City of any final approval. Nothing herein shall be
construed to prohibit the City from also charging reasonable compensation
for use of the public Rights-of-Way where such a fee is not contrary
to applicable law.
3.
Application form. A ROW-User shall submit a completed
application for franchise or ROW agreement on such form provided by
the City, which shall include information necessary or appropriate
to determine compliance with this Chapter.
4.
Approval process. After submission by the ROW-User
of a duly executed and completed application and application fee,
and executed franchise or ROW agreement as may be provided by the
City Administrator, or as modified by the City Administrator in review
of the specific circumstances of the application, all in conformity
with the requirements of this Chapter and all applicable law, the
City Administrator shall submit such franchise or agreement to the
Board of Aldermen for approval. Upon determining compliance with this
Chapter, the Board of Aldermen shall authorize execution of the franchise
or agreement (or a modified agreement otherwise acceptable to the
City consistent with the purposes of this Chapter), and such executed
franchise or agreement shall constitute consent to use the public
Rights-of-Way; provided that nothing herein shall preclude the rejection
or modification of any executed franchise or agreement submitted to
the City to the extent such applicable law does not prohibit such
rejection or modification, including where necessary to reasonably
and in a uniform or nondiscriminatory manner reflect the distinct
engineering, construction, operation, maintenance, public work or
safety requirements applicable to the applicant.
[Ord. No. 1310 §§1, 3, 7-9-2003]
Except as provided in this Chapter or as otherwise required
by law, no franchise, agreement or permit may be transferred without
the written application to and consent of the City based on the requirements
and policies of this ROW Chapter. The City shall not unreasonably
withhold its consent to transfer as provided herein.
[Ord. No. 1310 §§1, 3, 7-9-2003; Ord. No. 1683 §19, 3-9-2011]
A.
Except
as otherwise provided herein, no ROW user or other person shall perform
excavation or facilities work in the right-of-way without a right-of-way
permit. Any person desiring to conduct facilities work within public
rights-of-way shall first apply for and obtain a permit, in addition
to any other building, permit, license, easement, or authorization
required by law, unless such facilities work must be performed on
an emergency basis, then the person conducting the work shall as soon
as practicable notify the City of the location of the work and shall
apply for the required permit by the next business day following the
commencement of the facilities work. A permit should be obtained for
each project. A separate special permit or agreement shall be required
for excavation in or use of any real property interest of the City
that is not right-of-way.
B.
All
applications for permits shall be submitted to the Building/Codes
Enforcement Officer. The Building/Codes Enforcement Officer shall
design and make available standard forms for such application, requiring
such information as the City Engineer determines to be necessary,
to be consistent with the provisions of this Chapter and applicable
law, and to accomplish the purposes of this Chapter. Except as may
otherwise be provided by law, the application shall contain the following
information:
1.
The name, address, and telephone number of the applicant.
2.
The legal status of the applicant to do the proposed business in
this jurisdiction (corporate status, PSC certifications, etc.).
3.
The name, address, and telephone number of a responsible person whom
the City may notify or contact at any time concerning the applicant's
facilities work in or on the City public rights-of-way.
4.
The name, address, and telephone number of the owner of the facilities
if different than the applicant.
5.
An engineering site plan showing the proposed location of the applicant's
facilities including manholes or overhead poles; the length, size,
type, and proposed depth of any conduit or any other enclosures; and
the relationship of the facilities to all existing streets; length
of rights-of-way; the number of road crossings and the dimensions
and character of any cut or excavation, and the number of square feet
to be resurfaced.
6.
Each application should include the projected commencement and termination
dates or, if such dates are unknown at the time the permit is issued,
a provision requiring the permit holder to provide the Building/Codes
Enforcement Officer with reasonable advance notice of such dates once
they are determined.
7.
Certificates of insurance providing proof of liability coverage for
personal injury and property damage as required herein.
8.
Information sufficient to determine whether the ROW user is subject
to other laws relating to franchising, service regulation, payment
of compensation for the use of the right-of-way, taxation, or other
requirements as permitted by law.
9.
Any additional information that the Building/Codes Enforcement Officer
may require which may include such conditions and requirements as
are reasonably necessary to protect structures and facilities in the
public rights-of-way from damage and for the proper restoration of
such public rights-of-way, structures and facilities, and for the
protection of the public and the continuity of pedestrian and vehicular
traffic.
10.
If the applicant claims an exemption from any requirement in this
Chapter, applicant shall include a detailed explanation provision
subject to exemption and the facts, legal basis, and documentation
supporting such exemption.
C.
Building permits issued by the Building/Codes Enforcement Officer shall include authorization to make and repair individual service connections in the public rights-of-way without the need for a separate right-of-way permit. All repairs to the right-of-way made as a result of individual service connections shall be in accordance with Section 515.040(B) of this Chapter and applicable construction standards adopted by the City.
D.
Each such application shall be accompanied by payment of fees as designated in this Chapter. The Building/Codes Enforcement Officer shall review each application for a permit and, upon determining that the applicant has all requisite authority to perform the desired facilities work, and that the applicant has submitted all necessary information and has paid the appropriate fee, shall issue the permit, except as provided in Subsection (H) hereof.
E.
It
is the intention of the City that disruption of the public rights-of-way
should be minimized. Upon receipt of an application for a permit,
the Building/Codes Enforcement Officer shall do the following:
1.
Evaluate the degree of excavation necessary to perform the facilities work in the right-of-way and determine whether the proposed excavation will be more than minor in nature. The City Engineer shall grant a permit within ten (10) business days for facilities work deemed minor in nature. If the applicant can show to the City Engineer's reasonable satisfaction that the facilities work involves time sensitive maintenance, then the City Engineer shall grant the permit within two (2) business days. In either instance, if the permit is not issued in ten (10) business days, the aggrieved party may appeal to the City Administrator as provided in Subsection (J), unless the applicant is submitting one (1) project application for multiple excavations, constructions or installations; and
2.
For circumstances where the Building/Codes Enforcement Officer determines that the proposed facilities work will not be minor in nature and no exemption under Subsection (E)(1) or any other provisions of this Subsection applies, the Building/Codes Enforcement Officer may, consistent with the time requirements set forth in Subsection (E) and in the permit, direct permit holders performing facilities work in the same area to consult with the Building/Codes Enforcement Officer on how they may schedule and coordinate their work to accomplish the goal of this Section. If the permit is not issued within ten (10) business days, the aggrieved party may appeal to the City Administrator as provided in Subsection (J) of this Section, unless the applicant is submitting one (1) project application for multiple excavations, constructions or installations.
F.
An
applicant receiving a permit shall promptly notify the Building/Codes
Enforcement Officer of any changes in the information submitted in
his/her application.
G.
The
Building/Codes Enforcement Officer shall maintain an index of all
applicants who have been granted permits and their point(s) of contact.
H.
Any
permit granted pursuant to this Chapter shall be deemed to include
and be subject to the provisions of this Chapter as fully as if copied
therein verbatim.
I.
Permit Denial. The Building/Codes Enforcement Officer may
deny an application for a right-of-way permit if:
1.
The ROW user, or any persons acting on behalf of the ROW user, fails
to provide all the necessary information requested by the City for
managing the public right-of-way.
2.
The ROW user, or any persons acting on behalf of the ROW user, including
contractors or subcontractors, has a history of non-compliance or
permitting non-compliance within the City. For purposes of this Section,
"history of non-compliance, or permitting non-compliance, within the
City" shall include the ROW user, or any persons acting on behalf
of the ROW user, including contractors or subcontractors, has failed
to return the public right-of-way to its previous condition under
a previous right-of-way.
3.
The City has provided the ROW user with a reasonable, competitively
neutral, and non-discriminatory justification for requiring an alternative
method for performing the excavation or work identified in the right-of-way
permit application or a reasonable alternative route that will not
result in additional installation expense of more than ten percent
(10%) to the ROW user or a declination of service quality.
4.
The Building/Codes Enforcement Officer determines that the 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 PSC, such denial shall not interfere with a ROW
user's right of eminent domain of private property, if any, and such
denials shall only be imposed on a competitively neutral and non-discriminatory
basis. In determining whether denial of a right-of-way permit application
is necessary to protect the public health and safety, the Building/Codes
Enforcement Officer may consider one (1) or more of the following
factors:
a.
The extent to which the right-of-way space where the right-of-way
permit is sought is available, including the consideration of competing
demands for the particular space in the right-of-way, or other general
conditions of the right-of-way.
b.
The applicability of any ordinance, Code provision, or other regulations
that affect the location of facilities in the right-of-way.
c.
The degree and nature of disruption to surrounding communities and
businesses that will result from the use of that part of the right-of-way,
including whether the issuance of a right-of-way permit for the particular
dates and/or times requested would cause a conflict or interfere with
an exhibition, celebration, festival, or any other event.
5.
The area is environmentally sensitive as defined by State Statute
or Federal law or is a historic district defined by local ordinance.
6.
The failure to comply with applicable City ordinances or any other
reason that would constitute a lawful basis for revocation or denial
of a permit to reasonably manage the rights-of-way and protect the
public from interference or improper use of the public assets.
J.
The
Building/Codes Enforcement Officer may deny an application for the
previous listed reasons if deemed in the public's interest.
1.
If a permit is denied due to the location of the planned facilities,
the City Engineer will cooperate with the applicant to identify alternative
routes which most nearly match the routes requested by applicant for
the placement of facilities.
2.
Applicant may appeal any final decision of the Building/Codes Enforcement
Officer to the City Administrator, which appeal shall be acted upon
by the City Administrator within five (5) business days, and if denied
by the City Administrator, the applicant may then appeal to the Board
of Aldermen of the City, which shall act upon the appeal within sixty
(60) days.
K.
Applicable Fees.
1.
Any fees collected pursuant to this Section will be used only to
reimburse the City for costs incurred in managing the activities within
the rights-of-way and will not be used to generate revenue to the
City above such costs.
a.
Excavation permit fee.
(1)
Thirty-five dollars ($35.00) for work which does not require
the removal and/or replacement of sidewalks, curbing or pavement;
(2)
Thirty-five dollars ($35.00) plus ten dollars ($10.00) per linear
foot of sidewalk, curbing and pavement to be removed and/or replaced
in conjunction with work requiring such.
b.
Annual excavation permit fee for non-exclusive franchisees and owners
of facilities that maintain more than one thousand (1,000) lineal
feet of facilities within the public right-of-way two hundred fifty
dollars ($250.00) plus ten dollars ($10.00) per linear foot of sidewalk,
curbing and pavement removed and/or replaced in conjunction with work
requiring such.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
The
City may, after reasonable notice and an opportunity to cure, revoke
a right-of-way permit granted to a ROW-User, without a fee refund,
if one or more of the following occurs:
1.
A material violation of a provision of the right-of-way permit, including
the violation of any provision of this Chapter or of any additional
provisions of a specific permit;
2.
An evasion or attempt to evade any material provision of the right-of-way
permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the political subdivision or its citizens;
3.
A material misrepresentation of fact in the right-of-way permit application;
4.
A failure to complete excavation or work by the date specified in
the right-of-way permit, unless a right-of-way permit extension is
obtained or unless the failure to complete the excavation or work
is due to reasons beyond the ROW-User's control;
5.
A failure to correct, within the time specified by the City, excavation
or work that does not conform to applicable national safety codes,
industry construction standards, or applicable City Code provisions
or safety codes that are no more stringent than national safety codes
or provisions, upon inspection and notification by the City of the
faulty condition.
B.
If
a right-of-way permit is revoked, the ROW-User shall also reimburse
the City for the City's reasonable costs, including administrative
costs, restoration costs and the costs of collection and reasonable
attorneys' fees incurred in connection with such revocation.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Oversight Of Facilities Work.
1.
Applicants shall comply with all City codes and ordinances.
2.
Facilities work shall be subject to periodic inspection by the City.
3.
The City Engineer shall have full access to all portions of facilities
work and may issue stop work orders and corrective orders to prevent
unauthorized work. Such corrective or stop work orders shall state
that work not authorized by the permit is being carried out, summarize
the unauthorized work and provide a period of not longer than thirty
(30) days to cure the problem, which cure period may be immediate
if certain activities must be ceased to protect the public safety,
and may be delivered personally or by certified mail to the address
listed on the application for permit or to the person in charge of
the construction site at the time of delivery. Such orders may be
enforced by equitable action in the Circuit Court of Platte County,
Missouri, and if the City prevails in such case, the person involved
in the facilities work shall be liable for all costs and expenses
incurred by the City, including reasonable attorney's fees, in enforcing
such orders, in addition to any and all penalties established in this
Chapter.
4.
Any person who engages in facilities work in the public rights-of-way
and who has not received a valid permit from the City shall be subject
to all requirements of this Chapter. Except in those instances where
facilities work must be performed on an emergency basis, the City
may, in its discretion, at any time until a permit is secured, order
the facilities work ceased and do any of the following:
a.
Require such person to apply for a permit within thirty (30) days
of receipt of a written notice from the City that a permit is required;
b.
Require such person to remove its property and restore the affected
area 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.
5.
Records. Owners of facilities that maintain more
than one thousand (1,000) lineal feet of facilities within the public
rights-of-way shall keep complete and accurate maps and records of
the location of their facilities. Applicants that maintain more than
one thousand (1,000) lineal feet of facilities within the public rights-of-way
shall, within twelve (12) months of the passage of this Chapter, file
with the City Engineer a current map of those portions of the owner's/franchisee's
system which lie within the public rights-of-way. Maps furnished to
the City Engineer shall show the location of facilities and their
relationship to existing street or right-of-way. Map updates shall
be provided to the City Engineer at the time of payment of the annual
excavation permit fee. The information shall be solely for use by
the City and no other person may seek to hold ROW-User liable for
information obtained from the City from such maps and/or records unless
such damage or harm is caused by the owner of the facilities.
6.
Assignment of permit. The rights granted by this
Chapter 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 expressed written consent of the City. Any such consent
shall not be withheld unreasonably, and shall not be required for
assignment to entities that control, are controlled by, or are under
common control with applicant.
7.
Termination of permit and removal of installations. Should any applicant fail to abide by the terms of a permit, the
Board of Aldermen may, after thirty (30) days' written notice of breach
or default, and after a public hearing in which applicant has been
afforded due process terminate a permit if applicant has failed to
undertake reasonable steps to cure such default. Upon such termination,
the City may order the removal of any of applicant's installations
under this permit and if applicant should refuse, the City may remove
such installations at applicant's expense.
B.
Construction Standards.
1.
The construction, operation, maintenance, and repair of facilities
shall be in accordance with applicable health, safety, and construction
codes adopted by the City.
2.
All facilities shall be installed and located with due regard for
minimizing interference with the public, including the City and other
owners of facilities of the rights-of-way.
3.
Before initiating construction on City streets and public rights-of-way,
applicant will make all reasonable efforts to use existing infrastructure
for new facilities (i.e., existing poles and conduit, etc.). However
an applicant shall not place facilities where they will damage or
interfere with the use or operation of previously installed facilities,
or obstruct or hinder the various utilities serving the residents
and businesses in the City or their use of any public rights-of-way.
4.
Any contractor or subcontractor used for facilities work must be
properly licensed under laws of the State and all applicable local
ordinances, and each contractor or subcontractor shall have the same
obligations with respect to its work as an applicant would have hereunder
and shall be responsible for ensuring that the work of contractors
and subcontractors is performed consistent with its permits and applicable
law, shall be fully responsible for all acts or omissions of contractors
or subcontractors, and shall be responsible for promptly correcting
acts or omissions by any contractor or subcontractor.
5.
Requirements concerning the restoration and maintenance of the public
rights-of-way during and after construction of the facilities work
shall conform to the Kansas City Chapter of American Public Works
Association's Standard Specifications and Design Criteria as may be
amended from time to time.
6.
The standard specifications may be deviated from in special situations
where an alternative design is deemed, by the City Engineer, to be
necessary or more appropriate under the circumstances to insure conformance
with the performance standards underlying the Standard Specifications.
The City Engineer shall notify facility owners and contractors of
deviations or changes from the standard specifications, at least fifteen
(15) days prior to the implementation of the effected project.
C.
Restoration And Guarantee Of Work.
1.
The ROW-User shall be liable for any damages to facilities due to
excavation or facilities work performed prior to obtaining the location
of all facilities in the area in which the excavation or facilities
work is to be performed, or for any damage to facilities that have
been properly identified prior to excavation or work. The ROW-User
shall not make or attempt to make repairs, relocation or replacement
of damaged or disturbed facilities without the approval of the owner
of the facilities.
2.
The ROW-User shall be responsible for removing said debris from the
right-of-way. If the ROW-User fails to remove debris from the right-of-way,
the ROW-User shall be responsible for damages to the City, or its
contractors, resulting from such failure and shall indemnify the City
and its contractors as provided herein and pay the costs for remedying
such failure.
3.
In the event the ROW-User severely disturbs or damages the root structure
of any tree or landscaping in the right-of-way to the detriment of
the public safety survival of such tree or landscaping, the ROW-User
shall be required to remove and replace the landscaping or tree at
the ROW-User's cost. Further, in review of the ROW-User's plan, the
City Engineer, in his/her discretion, may require the ROW-User to
directionally bore in the right-of-way.
4.
After any excavation or work, the ROW-User shall, at its expense,
promptly restore all portions of the right-of-way to the same condition
or better condition than it was prior to the excavation or work. If
the ROW-User fails to restore the right-of-way in the manner and to
the condition required by the City Engineer, or fails to satisfactorily
and timely complete all restoration, the City, at its option, may
perform its own restoration excavation or work and prosecute same
to completion, by contract or otherwise. The ROW-User and its surety
shall be liable to the City for its actual costs of such restoration,
including the value of any time or overtime incurred through the labor
of City employees, the value of the use of City equipment, and the
cost of City materials used in the restoration project.
5.
In restoring the right-of-way, the ROW-User shall guarantee its excavation
or work and shall maintain it for a period of forty-eight (48) months,
or for the maximum period of time allowed by law, whichever is greater,
following its completion. During said guarantee period the ROW-User
shall, upon notification from the City Engineer, correct all restoration
excavation or work to the extent necessary, using any method as required
by the City Engineer. Said excavation or work shall be completed within
a reasonable time, not to exceed thirty (30) calendar days of the
receipt of notice from the City Engineer (not including days during
which work cannot be done because of circumstances constituting force
majeure or days when work is prohibited as unseasonable or unreasonable).
In the event the ROW-User is required to perform new restoration pursuant
to the foregoing guarantee, the City Engineer shall have the authority
to extend the guarantee period for such new restoration for up to
an additional forty-eight (48) months, or other greater period allowed
by law, from the date of the new restoration, if the City Engineer
determines there was action by the ROW-User not to comply with the
conditions of the right-of-way permit and any restoration requirements.
The guarantee period shall be applicable to failure of the pavement
surface as well as failure below the pavement surface.
Except as provided in this Section, each ROW-User shall provide,
at its sole expense, and maintain during the term of an agreement
or franchise commercial general liability insurance with a reputable,
qualified, and financially sound company licensed to do business in
the State of Missouri, and unless otherwise approved by the City,
with a rating by Best of not less than "A," that shall protect the
ROW-User, the City, and the City's officials, officers, and employees
from claims which may arise from operations under an agreement or
franchise, whether such operations are by the ROW-User, its officers,
directors, employees and agents, or any subcontractors of the ROW-User.
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 ROW-User operations, products,
services or use of automobiles, or construction equipment. The amount
of insurance for Single Limit Coverage applying to Bodily and Personal
Injury and Property Damage shall be at least two million five hundred
thousand dollars ($2,500,000.00), but in no event less than the individual
and combined sovereign immunity limits established by Section 537.610,
RSMo., for political subdivisions; provided that nothing herein shall
be deemed to waive the City's sovereign immunity. An endorsement shall
be provided which states that the City is listed as an additional
insured and stating that the policy shall not be cancelled or materially
modified so as to be out of compliance with the requirements of this
Section, or not renewed without thirty (30) days' advance written
notice of such event being given to the City Administrator. The insurance
requirements in this Section or otherwise shall not apply to a ROW-User
to the extent and for such period during an agreement or franchise
as ROW-User is exempted from such requirements pursuant to 67.1830(6)(a)
and has on file with the City Clerk an affidavit certifying that ROW-User
has twenty-five million dollars ($25,000,000.00) in net assets and
is otherwise therefore so exempted unless otherwise provided by agreement
or franchise. The City reserves the right to waive any and all requirements
under this Section when deemed to be in the public interest.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Performance Bond.
1.
Prior to any facilities work in the public rights-of-way, an applicant
shall establish in the City's favor a performance bond or other surety
in the penal sum of two thousand dollars ($2,000.00), approved by
the City Clerk, and in proper form approved by the City Attorney.
Owners of facilities that maintain more than one thousand (1,000)
lineal feet of facilities within the public right-of-way and franchisees
shall establish in the City's favor a performance bond or other surety
in the penal sum of five thousand dollars ($5,000.00), approved by
the City Clerk, and in proper form approved by the City Attorney.
Differences in bond requirements, including provisions for self-insurance
or provisions for a single continuing bond where facilities work is
conducted by the same applicant under numerous permits, may be established
by regulation based on the extent or nature of the facilities work,
the past performance of the applicant and not based on the characteristics
of the applicant.
In the event an applicant fails to complete the facilities work
in a safe, timely, and competent manner or fails to satisfy the guarantee
of such work as provided herein, the City shall be entitled to recover,
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 attorneys' fees.
2.
Upon completion of the facilities work to the satisfaction of the
City Engineer, the City Engineer shall eliminate the bond or reduce
its amount after such time appropriate to determine whether the work
performance was satisfactory, which time shall be established by the
City Engineer considering the nature of the work performed, and which
may allow for reasonable bond amounts to remain to secure the guarantee
requirement. In any event, the entire bond shall be released timely
after the expiration of guarantee period; provided the ROW-User has
satisfied the guarantee requirements.
3.
A performance bond shall be issued in a form of surety acceptable
to the City, and shall contain an endorsement substantially as follows:
"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."
4.
Recovery by the City of any amounts under the performance bond does
not limit an applicant's duty to indemnify the City in any way, nor
shall such recovery relieve or limit an applicant of its obligations
under a permit or reduce the amounts owed to the City other than by
the amounts recovered by the City under the performance bond, or in
any respect prevent the City from exercising any other right or remedy
it may have.
B.
Cost Recovery.
1.
In the event that an excavation is not refilled within a reasonable
time after it is ready for refilling, the City Engineer shall notify
the applicant 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 completion and no additional permit shall be issued
to that person after that time, unless such charge has been paid.
2.
In the event that the applicant fails to backfill, repair or repave
any excavations made within the public rights-of-way, the City shall,
at its option, repair said cut with City employees forces 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 forces
the charges shall be based on the unit price paid on the most recent
Street Improvement or Pavement Repair Contract issued by the City
Engineer.
3.
In the event the City incurs additional costs as a direct result
of an unauthorized action or an inaction by any person and/or owner
of facilities, the City shall have the right to recover from that
person or owner any and all documentable costs incurred, including,
but not limited to the identification of undocumented facilities,
completion of improper facilities work, long-term structural damage,
construction delay fees and penalties, fees paid to other agencies
and any other documentable costs incurred by the City within the rights-of-way.
C.
Exemption. If a ROW-User has twenty-five million dollars
($25,000,000.00) in net assets and does not have a history of non-compliance,
or permitting non-compliance, within the City, then the ROW-User shall
not be required to maintain a performance or maintenance bond but
shall be deemed liable directly for payment under the same obligations
as if a bond had been required.
D.
Penalties. For each violation of provisions of this Chapter,
or a permit granted pursuant to this Chapter as to which the City
has given notice to applicant as provided in this Chapter, penalties
may be chargeable to the applicant at a rate not exceeding one hundred
dollars ($100.00) per day for so long as the violation continues.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Whenever
the City shall in its exercise of the public interest request of the
ROW-User the relocation or reinstallation of any of its facilities,
ROW-User shall forthwith remove, relocate, or reinstall any such property
as may be reasonably necessary to meet the request and the cost of
such relocation, removal, or reinstallation of the facilities shall
be the exclusive obligation of said ROW-User without expense to the
City. ROW-User shall upon request of any other person requesting relocation
of facilities and holding a validly issued building or moving permit
of the City, and within forty-eight (48) hours prior to the date upon
which said person intends to exercise its rights under said permit,
ROW-User shall thereupon temporarily raise, lower, or relocate its
wires or other facilities as may be required for the person to exercise
the rights under the permit, and ROW-User may require such permit
holder to make payment in advance for any expenses incurred by said
ROW-User pursuant to said person's request.
B.
If
any facilities are not relocated in accordance with this Section and
within the reasonable time frames required by the City, the City or
its contractors may relocate the facilities and the ROW-User and its
surety shall be liable to the City for any and all costs incurred
by the City.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Compliance With Laws. Each applicant shall comply with all
applicable Federal and State laws as well as City ordinances, resolutions,
rules and regulations heretofore and hereafter adopted or established.
B.
Applicant Subject To Other Laws, Police Power.
1.
An applicant shall at all times be subject to all lawful exercise
of the Police powers of the City, including but not limited to all
powers regarding zoning, supervision of the restoration of the right-of-way,
and control of public rights-of-way.
2.
No action or omission of the City shall operate as a future waiver
of any rights of the City under this Chapter.
3.
Except where rights are expressly granted or waived by a permit,
they are reserved, whether or not expressly enumerated. This Chapter
may be amended from time to time and in no event shall this Chapter
be considered a contract between the City and an applicant such that
the City would be prohibited from amending any provision hereof.
C.
Construction Of Applicable Federal, State And City Law. This
Chapter shall be construed in a manner consistent with all applicable
Federal, State, and local laws. Notwithstanding any other provisions
of this Chapter to the contrary, the construction, operation and maintenance
of the ROW-User's facilities shall be in accordance with all laws
and regulations of the United States, the State and any political
subdivision thereof, or any administrative agency thereof, having
jurisdiction. In addition, the ROW-User shall meet or exceed the most
stringent technical standards set by regulatory bodies, including
the City, now or hereafter having jurisdiction. The ROW-User's rights
are subject to the police powers of the City to adopt and enforce
ordinances necessary to the health, safety, and welfare of the public.
The ROW-User shall comply with all applicable laws and ordinances
enacted pursuant to that power. The failure of the ROW-User to comply
with any applicable law or regulation may result in a forfeiture of
any permit, or authorization granted in accordance with this Chapter.
D.
Indemnification. As a condition of use of the rights-of-way,
ROW-User at its sole cost and expense, shall indemnify, protect, defend
(with counsel acceptable to the City) and hold harmless the City,
its elected officials, officers, employees, and agents, from and against
any and all claims, demands, losses, damages, liabilities, fines,
charges, penalties, administrative and judicial proceedings and orders,
judgments, remedial actions of any kind, and all costs and expenses
of any kind, including, without limitation, reasonable attorney's
fees and costs of defense arising, directly or indirectly, in whole
or in part, out of the fact that the City approved an agreement or
franchise with ROW-User, the rights granted to ROW-User, or the activities
performed, or failed to be performed, by ROW-User under any approval
or by use of the rights-of-way, or otherwise, except to the extent
arising from or caused by the sole or gross negligence or willful
misconduct of the City, its elected officials, officers, employees,
agents or contractors. This indemnification shall survive the expiration
or termination of any agreement or use of the rights-of-way for a
period of five (5) years after the effective date of expiration or
termination.
E.
Rights And Remedies.
1.
The exercise of one 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.
4.
The City reserves unto itself every right and power which is required
to be reserved by a provision of any ordinance under any agreement,
franchise, permit or other authorization granted under this Chapter,
and as may be authorized by Sections 67.1830 — 67.1846, RSMo.,
and other authority applicable to regulation of the use of the rights-of-way.
F.
Advertising, Signs Or Extraneous Markings. A ROW-User shall
not place or cause to be placed any sort of signs, advertisements
or other extraneous markings, whether relating to ROW-User or any
other person or entity on the public right-of-way, except such necessary
minimal markings as approved by the City as are reasonably necessary
to identify the facilities for service, repair, maintenance or emergency
purposes, or as may be otherwise required to be affixed by applicable
law or regulation.
G.
Tree Protection. Unless otherwise approved in writing by
the City, or as part of an approved tree trimming plan, or in the
attachment, installation, removal, reattachment, reinstallation, relocation
or replacement or otherwise of the facilities, ROW-User shall neither
remove, cut, nor damage any trees, or their roots, in and along the
streets, alleys and public places of the City. Tree trimming and pruning
may be permitted to occur only after prior written notice to the City
of the extent of trimming and pruning to be performed and the prior
written approval thereof by the City. The type and extent of trimming
and pruning shall be in accordance with the requirements of the City.
H.
Antennae And Wireless Communications Equipment. Towers,
antennae, antennae structures and ground-mounted wireless communications
equipment shall not be placed in the right-of-way except as may be
permitted by the City's ordinances and regulations relating to placement
of wireless communications antennae, structures and towers, and only
with prior agreement approved by the Board establishing such conditions
as to the design, number, location, and compensation or reimbursement
of costs, if any, and other reasonable considerations. All such decisions
shall be made on a competitively neutral and non-discriminatory manner.
I.
Taxes And Fees. ROW-Users shall be responsible for all applicable
business license taxes, sales taxes, occupation taxes, franchise fees
or taxes, property taxes, other similar taxes, permit fees and other
right-of-way management costs.
J.
Force Majeure. An applicant shall not be deemed in violation
of provisions of this Chapter where performance was rendered impossible
by war or riots, civil disturbances, floods, or other natural catastrophes
beyond the applicant's control, and a permit shall not be revoked
or an applicant penalized for such non-compliance, provided that the
applicant takes immediate and diligent steps to bring itself back
into compliance and to comply as soon as possible under the circumstances
with its permit without unduly endangering the health, safety, and
integrity of the applicant's employees or property, the public, public
rights-of-way, public property, or private property.
K.
Calculation Of Time. Unless otherwise indicated, when the
performance or doing of any act, duty, matter, or payment is required
under this Chapter or any permit, and a period of time is prescribed
and is fixed herein, the time shall be computed so as to exclude the
first and include the last day of the prescribed or fixed period of
time.
L.
Severability. If any term, condition, or provision of this
Chapter shall, to any extent, be held to be invalid or unenforceable,
the remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in applicable
law so that the provision that has been held invalid is no longer
invalid, said provisions shall thereupon return to full force and
effect without further action by the City and shall thereafter be
binding on the applicant and the City.
M.
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.
N.
Standards Applicable To City. Any standards in this Chapter
relating to facilities work shall be fully applicable to work performance
by the City and its departments.
O.
Rights In The Event Of Abandonment. In the event that the
Governing Body of the City closes or abandons any right-of-way, which
contains the facilities of the applicant, installed hereunder, any
land contained in such closed or abandoned right-of-way shall be subject
to the rights of the applicant.
P.
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.
Q.
Appeals. Unless otherwise provided herein or by any other
governing ordinance or law, any person aggrieved by a decision made
pursuant to this Chapter shall, prior to seeking any judicial relief,
file a written appeal of any such decision with the Board of Aldermen
within fifteen (15) days of such decision specifying this provision
and including specific details of the alleged claim or grievance,
and an evidentiary hearing shall be held on such appeal. Nothing herein
shall deny any other applicable appeal remedy that may be granted
by Federal or State law.
[Ord. No. 1905, 11-19-2019]
A.
Applicability.
To the extent permitted by law, this Section shall apply to all Persons
desiring to construct, operate, or maintain Small Wireless Facilities
within the City. Any existing ordinances that are not consistent with
this Section, applicable State and Federal law, including, without
limitation, Sections 67.5090 to 67.5103, RSMo., Sections 67.1830 to
67.1846, RSMo., and the Declaratory Ruling and Third Report and Order
adopted by the FCC on September 26, 2018 (FCC 18-133) are hereby superseded
B.
ANTENNA
APPLICABLE CODES
APPLICABLE LAW
APPLICANT
APPLICATION
CITY UTILITY POLE
COLLOCATE or COLLOCATION
DECORATIVE POLE
FEE
HISTORIC DISTRICT
MICRO WIRELESS FACILITY
SMALL WIRELESS FACILITY PERMIT
RATE
RIGHT-OF-WAY
SMALL WIRELESS FACILITY
1.
2.
TECHNICALLY FEASIBLE
UTILITY POLE
WIRELESS FACILITY
1.
2.
3.
4.
WIRELESS INFRASTRUCTURE PROVIDER
WIRELESS PROVIDER
WIRELESS SERVICES
WIRELESS SERVICES PROVIDER
WIRELESS SUPPORT STRUCTURE
WIRELINE BACKHAUL FACILITY
Definitions
and Usage — General. For the purposes of this Section, 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 masculine gender includes the feminine gender
and vice versa. The words "shall" and "will" are mandatory, and "may"
is permissive. Unless otherwise expressly stated or contrary to the
context, terms, phrases, words, and abbreviations not defined herein
shall be given the meaning set forth in Sections 67.5110 to 67.5121,
RSMo., and if not defined therein, the City Code, and, if not defined
therein, their common and ordinary meaning. For further convenience,
the first letter of terms, phrases, words, and abbreviations defined
in this Section have been capitalized, but an inadvertent failure
to capitalize such letter shall not affect its meaning, nor shall
the inadvertent capitalization of the first letter of a term, phrase,
word or abbreviation not defined herein affect the meaning thereof.
Communications equipment that transmits or receives electromagnetic
radio frequency signals used in the provision of wireless services.
Uniform building, fire, electrical, plumbing, or mechanical
codes adopted by a recognized national code organization or local
amendments to such codes enacted to prevent physical property damage
or reasonably foreseeable injury to persons.
State and Federal laws and regulations applicable to the
construction, installation, deployment or Collocation of Wireless
Facilities and Utility Poles, including those laws and regulations
of general applicability that do not apply exclusively to Wireless
Facilities or Wireless Providers such as local ordinances and State
law relating to the use of Right-of-Way.
Any person who submits an application and is a wireless provider.
A request submitted by an applicant to the City for a permit
to collocate small wireless facilities on a utility pole or wireless
support structure, or to approve the installation, modification, or
replacement of a utility pole.
Means a utility pole, as defined below, owned, managed, or
operated by or on behalf of the City; except municipal electric utility
distribution poles or facilities; which are excluded from the definition
of City Utility Pole under State law, and neither the Act nor this
Section sets forth the rates, fees, terms and conditions applicable
to attachments by Wireless Providers to municipal electric utility
poles or facilities. Pole attachment arrangements between a municipal
electric utility and an unrelated party, such as a Wireless Provider,
are governed by a pole attachment agreement between the parties.
To install, mount, maintain, modify, operate, or replace
small wireless facilities on or immediately adjacent to a wireless
support structure or utility pole, provided that the small wireless
facility antenna is located on the wireless support structure or utility
pole.
A City Utility Pole that is specially designed and placed
for aesthetic purposes.
A one-time, non recurring charge.
A group of buildings, properties, or sites that are either
listed in the National Register of Historic Places or formally determined
eligible for listing by the Keeper of the National Register, the individual
who has been delegated the authority by the Federal agency to list
properties and determine their eligibility for the National Register,
in accordance with Section VI.D.I.a.i-v of the Nationwide Programmatic
Agreement codified at 47 C.F.R. Part 1, Appendix C, or are otherwise
located in a district made subject to special design standards adopted
by a local ordinance or under State law as of January 1, 2018, or
subsequently enacted for new developments.
A small wireless facility that meets the following qualifications:
A written authorization from a designated City official required
by the City to collocate Small Wireless Facilities in or outside the
Right-of-Way, or to install, replace, maintain or operate a Utility
Pole inside the Right-of-Way for any purpose; Such permits shall comply
with the requirements of Section 67.5113.3, RSMo., providing that
permits for the installation of Utility Poles must be of general applicability
and may not apply exclusively to wireless facilities.
A recurring charge.
The area on, below, or above a public roadway, highway, street,
sidewalk, alley, or similar property used for public travel, but not
including a Federal interstate highway, railroad right-of-way, or
private easement.
A wireless facility that meets both of the following qualifications:
Each wireless provider's antenna could fit within an enclosure
of no more than six (6) cubic feet in volume; and
All other equipment associated with the wireless facility, whether
ground or pole mounted, is cumulatively no more than twenty-eight
(28) cubic feet in volume, provided that no single piece of equipment
on the utility pole shall exceed nine (9) cubic feet in volume; and
no single piece of ground mounted equipment shall exceed fifteen (15)
cubic feet in volume, exclusive of equipment required by an electric
utility or municipal electric utility to power the small wireless
facility.
|
The following types of associated ancillary equipment shall
not be included in the calculation of equipment volume: electric meter,
concealment elements, telecommunications demarcation box, grounding
equipment, power transfer switch, cut-off switch, and vertical cable
runs and related conduit for the connection of power and other services.
|
By virtue of engineering or spectrum usage, the proposed
placement for a small wireless facility or its design or site location
can be implemented without a reduction in the functionality of the
small wireless facility.
A pole or similar structure that is or may be used in whole
or in part by or for wireline communications, electric distribution,
lighting, traffic control, signage, or a similar function, or for
the collocation of small wireless facilities.
Equipment at a fixed location that enables wireless communications
between user equipment and a communications network, including equipment
associated with wireless communications and radio transceivers, antennas,
coaxial or fiber-optic cable, regular and backup power supplies, and
comparable equipment, regardless of technological configuration. The
term includes small wireless facilities. The term does not include:
The structure or improvements on, under, or within which the
equipment is collocated;
Coaxial or fiber-optic cable between wireless support structures
or utility poles;
Coaxial or fiber-optic cable not directly associated with a
particular small wireless facility; or
A wireline backhaul facility.
Any person, including a person authorized to provide telecommunications
service in the State, that builds or installs wireless communication
transmission equipment or wireless facilities but that is not a wireless
services provider.
A wireless infrastructure provider or a wireless services
provider.
Any services using licensed or unlicensed spectrum, including
the use of wifi, whether at a fixed location or mobile, provided to
the public using wireless facilities.
A person who provides wireless services.
An existing structure, such as a monopole or tower, whether
guyed or self-supporting, designed to support or capable of supporting
wireless facilities; an existing or proposed billboard; an existing
or proposed building; or other existing or proposed structure capable
of supporting wireless facilities, other than a structure designed
solely for the collocation of small wireless facilities. Such term
shall not include a utility pole.
A physical transmission path, all or part of which is within
the right-of-way, used for the transport of communication data by
wire from a wireless facility to a network.
C.
General
Standards.
1.
Neither the City, nor any person owning, managing, or controlling
City Utility Poles, shall enter into an exclusive arrangement with
any person for use or management of the Right-of-Way for the Collocation
of Small Wireless Facilities or the installation, operation, marketing,
modification, maintenance, management, or replacement of City Utility
Poles within the Right-of-Way, or for the right to attach to such
City Utility Poles within the Right-of-Way.
2.
The City, in applying the provisions of this Section, will act in
a competitively neutral manner with regard to other users of the Right-of-Way.
3.
Nothing in this Code limits the ability of the City to require an
Applicant to obtain one (1) or more permits of general applicability
that do not apply exclusively to Wireless Facilities in addition to
the Permit required by this Section in order to Collocate a Small
Wireless Facility or install a new, modified, or replacement Utility
Pole associated with a Small Wireless Facility.
4.
The City may require a Permit under Applicable Codes, existing City
ordinances, or this Section, with reasonable conditions, for work
in a Right-of-Way that will involve excavation, affect traffic patterns,
obstruct traffic in the Right-of-Way, or materially impede the use
of a sidewalk.
5.
A Small Wireless Facility must comply with reasonable, objective,
and cost effective concernment or safety requirements determined by
the City.
6.
Subject to Sections of this Code, and except for facilities excluded
from evaluation for effects on historic properties under 47 C.F.R.
Section 1307(a)(4) of the Federal Communications Commission rules,
the City may require reasonable, technically feasible, non-discriminatory,
and technologically neutral design or concealment measures, published
in advance, for Small Wireless Facilities or Utility Poles placed
in a Historic District. Any such design or concealment measures shall
not have the effect of prohibiting any Wireless Provider's technology,
nor shall any such measures be considered a part of the Small Wireless
Facility for purposes of the size restrictions in the definition of
Small Wireless Facility.
7.
Right-of-Way users, upon adequate notice and at the facility owner's
own expense, shall relocate facilities as may be needed in the interest
of public safety and convenience.
8.
Except as otherwise provided in the City Code and Applicable Law,
in reviewing applications for Small Wireless Facilities, Wireless
Support Structures and Utility Poles, the City will exercise zoning,
land use, planning, and permitting authority within its territorial
boundaries.
9.
Nothing in this Code shall be interpreted to impose any new requirements
on cable providers for the provision of such service.
10.
Small Wireless Facilities or Utility Poles constructed or operational
before August 28, 2018, which were approved by the City by permit
or agreement may remain installed and be operated under the requirements
of this Code.
D.
Permitting
Provisions.
1.
Permit Requirements — Inside the Right-of-Way.
a.
Any Person desiring to Collocate Small Wireless Facilities, or to
install, replace, maintain or operate a Utility Pole, inside the Right-of-Way
must first apply for and obtain a Permit, in addition to any other
required permit, license, or authorization that is generally applicable
and does not apply exclusively to Wireless Facilities.
b.
The Collocation of Small Wireless Facilities and the installation, maintenance, modification, operation, and replacement of Utility Poles along, across, upon, and under the Right-of-Way is not subject to zoning review or approval; except that the placement of new or modified Utility Poles in the Right-of-Way in areas zoned single-family residential or as historic as of August 28, 2018, remain subject to any applicable zoning requirements that are consistent with Sections 67.5090 to 67.5103, RSMo., and Sections 410.360 — 410.410 of the City Code.
c.
Small Wireless Facilities and Utility Poles shall be installed and
maintained so as not to obstruct or hinder the usual travel, including
pedestrian travel, or public safety on the Right-of-Way or obstruct
the legal use of the Right-of-Way by the City or other authorized
Right-of-Way users.
d.
A new, replacement, or modified Utility Pole installed in the Right-of-Way shall not be subject to zoning requirements so long as the Utility Pole does not exceed the greater of ten (10) feet in height above the tallest existing Utility Pole in place as of January 1, 2019, located within five hundred (500) feet of the new Utility Pole in the same Right-of-Way, or fifty (50) feet above ground level. A new, modified, or replacement Utility Pole that exceeds these height limits shall be subject to applicable City zoning requirements that apply to other Utility Poles, and that are consistent with Sections 67.5090 to 67.5103, RSMo., and Sections 410.360 — 410.410 of the City Code.
e.
New Small Wireless Facilities in the Right-of-Way shall not extend
more than ten (10) feet above an existing Utility Pole in place as
of August 28, 2018.
f.
Small Wireless Facilities on a new Utility Pole shall not extend above the height permitted for a new Utility Pole in Subsection (D)(1)(d) above.
g.
A Wireless Provider shall be permitted to replace Decorative Poles
when necessary to Collocate a Small Wireless Facility, but any replacement
pole shall reasonably conform to the design aesthetics of the Decorative
Pole or Poles being replaced. The term "reasonably conform" as used
herein, shall mean that the design aesthetics of the replacement pole
shall be as nearly identical to the Decorative Pole replaced as is
feasible. The City Engineer or other designated position is authorized
to determine if the replacement pole reasonably conforms, based upon
the reasonable objective design standards published in advance by
the City.
h.
The City may require replacement of a City Utility Pole that is proposed
to be used for Collocation on a non-discriminatory basis for reasons
of safety and reliability, including a demonstration that the Collocation
would make the City Utility Pole structurally unsound.
2.
Permit Requirements — Outside the Right-of-Way.
b.
The City will allow Collocation of Small Wireless Facilities on City
Wireless Support Structures and City Utility Poles that are located
on City property outside the right-of-way to the same extent, if any,
that it allows access to such structures for other commercial projects
or uses. Any such Collocations shall be subject to reasonable and
non-discriminatory rates, fees, and terms as provided in an agreement
between the City and the Wireless Provider, and not otherwise governed
by this Code.
c.
The City shall not enter into an exclusive agreement with a Wireless
Provider concerning City Utility Poles or City Wireless Support Structures
that are located on City property outside the Right-of-Way, including
stadiums and enclosed arenas, unless the agreement meets the following
requirements:
(1)
The Wireless Provider provides service using a shared network
of Wireless Facilities that it makes available for access by other
Wireless Providers on reasonable and non-discriminatory rates and
terms that shall include use of the entire shared network, as to itself,
an affiliate, or any other entity; or,
(2)
The Wireless Provider allows other Wireless Providers to Collocate
Small Wireless Facilities on reasonable and non-discriminatory rates
and terms, as to itself, an affiliate, or any other entity.
d.
An Applicant seeking to Collocate Small Wireless Facilities in or
outside the Right-of-Way, or to install, replace, maintain or operate
a Utility Pole inside the Right-of-Way, must first submit an Application
for a Permit to the City Planning Officer. The City Planning Officer
shall make available to Applicants a standard Application form, consistent
with the provisions of this Section which all Applicants must use
in order to accomplish the purposes of this Section. Except for the
requirements per this Code, an Applicant shall not be required to
provide more information to obtain a Permit under this Code than other
communications service providers that are not Wireless Providers.
3.
An Application for a Permit shall include the following;
a.
Construction and engineering drawings which demonstrate compliance
with the criteria;
b.
An attestation that the Small Wireless Facilities comply with the
volumetric limitations in the definition of Small Wireless Facility;
c.
Information on the height of any new, replacement, or modified Utility
Pole;
d.
Applicable indemnity, insurance, performance bond information as
required herein;
e.
An Applicant that is not a Wireless Services Provider must provide
evidence of agreements or plans demonstrating that the Small Wireless
Facilities will be operational for use by a Wireless Services Provider
within one (1) year after the Permit issuance date, unless the City
and the Applicant agree to extend this period or if the Applicant
notifies the City the delay is caused by lack of commercial power
or communications transport facilities. An Applicant that is a Wireless
Services Provider must provide this information by attestation.
f.
Plans and detailed cost estimates for any make-ready work as needed.
g.
The Applicant shall be solely responsible for the cost of any make-ready
work; and
h.
Projected commencement and termination dates for the Permit, or if
such dates are unknown at the time the Permit is issued, a provision
requiring the Permit holder to provide City Engineer or other designated
position with reasonable advance notice of such dates once they are
determined.
E.
Fees
And Rates. Each such Application shall be accompanied by payment of
fees as designated in this Section with such fees to comply with the
requirements of Section 67.5116.4(3), RSMo.
1.
General.
a.
Any fees collected pursuant to this Subsection will be used only
to reimburse the City for its actual incurred costs and will not be
used to generate revenue to the City above such costs.
b.
The City may not require or accept in-kind services in lieu of any
fee.
c.
The rates to Collocate on City Utility Poles shall be non-discriminatory
regardless of the services provided by the Collocating Applicant.
2.
Application Fee.
a.
The total fee for an Application for the Collocation of a Small Wireless
Facility on an existing City Utility Pole is one hundred dollars ($100.00)
per Small Wireless Facility.
b.
An Applicant filing a consolidated Application shall pay one hundred
dollars ($100.00) per Small Wireless Facility included in the consolidated
Application.
c.
The total fee for an Application for the installation, modification,
or replacement of a Utility Pole and the Collocation of an associated
Small Wireless Facility is five hundred dollars ($500.00) per Utility
Pole.
3.
Right-of-Way Permit Fee.
a.
The total fee for a Right-of-Way permit associated with the installation
of Small Wireless Facilities in the Right-of-Way is as established
in the City's General Right-of-Way ordinance with the addition of
such fees as may be associated with City Street Cut permits as may
be required. Such fees shall comply with the requirements and limitations
established by State law and Federal regulations.
F.
Timing
For Processing Of An Application.
1.
Within fifteen (15) days of receiving an Application, the City shall
determine and notify the Applicant, in writing, whether the Application
is complete. If an Application is incomplete, the City shall specifically
identify the missing information in writing. The processing deadline
in Subdivision (2) of this Subsection is tolled from the time the
City sends the notice of incompleteness to the time the Applicant
provides the missing information. That processing deadline may also
be tolled by agreement of the Applicant and the City.
2.
The City shall process and approve or deny an Application for Collocation
of a Small Wireless Facility within forty-five (45) days of receipt
of the Application. The Application shall be deemed approved if not
approved or denied within this forty-five (45) day period.
3.
The City shall process and approve or deny an Application for installation
of a new, modified, or replacement Utility Pole associated with a
Small Wireless Facility within sixty (60) days of receipt of the Application.
The Application shall be deemed approved if not approved or denied
within this sixty (60) day period.
4.
An Applicant may file a consolidated Application and receive a single
Permit for the Collocation of multiple Small Wireless Facilities.
a.
An Application may include up to twenty (20) separate Small Wireless
Facilities; provided that they are for the same or materially the
same design of Small Wireless Facility being Collocated on the same
or materially the same type of Utility Pole or Wireless Support Structure,
and geographically proximate. The Application shall provide information
sufficient for the [City Engineer or other designated position] to
determine whether the Applicant has met the requirements of this Subsection.
The [City Engineer or other designated position] shall have discretion
to determine whether the Application meets the requirements of this
Subsection.
b.
If the City receives individual Applications for approval of more
than fifty (50) Small Wireless Facilities or consolidated Applications
for approval of more than seventy-five (75) Small Wireless Facilities
within a fourteen (14) day period, whether from a single Applicant
or multiple Applicants, the City may, upon its own request, obtain
an automatic thirty (30) day extension for any additional Collocation
or replacement or installation Application submitted during that fourteen
(14) day period or in the fourteen (14) day period immediately following
the prior fourteen (14) day period. The City will promptly communicate
its request to each and any affected Applicant.
c.
The denial of one (1) or more Small Wireless Facilities in a consolidated
Application shall not delay processing or constitute a basis for denial
of any other Small Wireless Facilities in the same consolidated Application
or the consolidated Application as a whole.
5.
The City shall provide a good faith estimate for any make-ready work
necessary to enable a City Utility Pole to support the requested Collocation
by a Wireless Provider, including pole replacement if necessary, within
sixty (60) days after receipt of a complete Application. Make-ready
work, including any pole replacement, shall be completed within sixty
(60) days of written acceptance of the good faith estimate and advance
payment, if required, by the Applicant.
6.
An Application that is not acted on within the specified time period
is deemed approved.
7.
For any Application denied:
a.
The City shall document the complete basis for a denial in writing,
and send the documentation to the Applicant on or before the day the
City denies the Application.
b.
The Applicant may cure the deficiencies identified by the City and
resubmit the Application within thirty (30) days of the denial without
paying an additional application fee.
c.
The City shall approve or deny the revised Application within thirty
(30) days. Any subsequent review shall be limited to the deficiencies
cited in the denial.
8.
The City will not institute, either expressly or de facto, a moratorium
on filing, receiving, or processing Applications or issuing Permits
or other approvals, if any, for the Collocation of Small Wireless
Facilities or the installation, modification, or replacement of Utility
Poles to support Small Wireless Facilities.
a.
If doing so would be consistent with 47 U.S.C. §253(a), particularly
as interpreted by the FCC's Declaratory Ruling adopted on August 2,
2018, (FCC 18-111), the City may institute a temporary moratorium
on Applications for Small Wireless Facilities and the Collocation
thereof for no more than thirty (30) days in the event of a major
and protracted staffing shortage that reduces the number of personnel
necessary to receive, review, process, and approve or deny applications
for the Collocation of Small Wireless Facilities by more than fifty
percent (50%).
G.
Denial Of An Application. An Application for a proposed collocation of a Small Wireless Facility or installation, modification, or replacement of a Utility Pole otherwise meeting the requirements of Subsection (D) may be denied if the action proposed in the Application could reasonably be expected to:
1.
Materially interfere with the safe operation of traffic control equipment
or City-owned communications equipment;
2.
Materially interfere with sight lines or clear zones for transportation,
pedestrians, or non-motorized vehicles;
3.
Materially interfere with compliance with the Americans with Disabilities
Act, or similar Federal or State standards regarding pedestrian access
or movement;
4.
Materially obstruct or hinder the usual travel or public safety on
the Right-of-Way;
5.
Materially obstruct the legal use of the Right-of-Way by the City,
utility, or other third party;
6.
Fail to comply with Applicable Codes, including nationally recognized
engineering standards for Utility Poles or Wireless Support Structures;
7.
Fail to comply with the reasonably objective and documented aesthetics
of a Decorative Pole and the Applicant does not agree to pay to match
the applicable decorative elements;
8.
Fail to comply with reasonable and non-discriminatory under-grounding
requirements contained in City ordinances as of January 1, 2018, or
subsequently enacted for new developments, that require all utility
facilities in the area to be placed underground and prohibit the installation
of new or the modification of existing Utility Poles in a Right-of-Way
without prior approval, provided that such requirements include a
waiver or other process of addressing requests to install such Utility
Poles and do not prohibit the replacement or modification of existing
Utility Poles consistent with Applicable Law or the provision of Wireless
Services; or
9.
Any other reason not prohibited by Applicable Law.
H.
Approval
Of An Application.
1.
The City Planning Officer shall review each Application for a Permit and, upon determining that: 1) the Applicant has submitted all necessary information; 2) there is no basis under Subsection (F) to deny the Application; and 3) the Applicant has paid the appropriate Fee, the [City Engineer or other designated position] shall issue the Permit.
2.
If the City approves an Application, the Applicant is authorized
to:
a.
Undertake the installation or Collocation;
b.
Operate and maintain the Small Wireless Facilities and any associated
Utility Pole covered by the Permit for a period of not less than ten
(10) years, which shall be renewed for equivalent durations so long
as they are in compliance with the criteria listed in this Section.
c.
The City may approve a Permit subject to a reservation to reclaim
space on the Utility Pole, when and if needed, to meet the Utility
Pole owner's core utility purpose or a documented City plan projected
at the time of the Application.
I.
No
Application Required.
1.
Routine maintenance on previously permitted Small Wireless Facilities;
2.
The replacement of Small Wireless Facilities with Small Wireless
Facilities that are the same or smaller in size, weight, and height;
or
3.
The installation, placement, maintenance, operation, or replacement
of micro wireless facilities that are strung on cables between Utility
Poles in compliance with Applicable Codes.
A person performing the permitted acts under this Subsection
may be required to provide the City with a description of any new
equipment installed so that the City may maintain an accurate inventory
of the Small Wireless Facilities at a particular location.
J.
Construction
Standards.
1.
The construction, operation, maintenance, and repair of Small Wireless
Facilities shall be in accordance with Applicable Codes and relevant
City ordinances pertaining to construction, operation, maintenance,
and repair inside or outside the Right-of-Way.
2.
All Small Wireless Facilities shall be installed and located with
due regard for minimizing interference with the public and with other
users of a Right-of-Way, including the City.
3.
An Applicant shall not place Small Wireless Facilities where they
will damage or interfere with the use or operation of previously installed
facilities, or obstruct or hinder the various utilities serving the
residents and businesses in the City of their use of any Right-of-Way.
4.
Any and all Rights-of-Way disturbed or damaged during the construction
of Small Wireless Facilities shall be promptly repaired or replaced
by the Applicant to its functional equivalence as existed before the
disturbance or damage.
5.
Any Wireless Infrastructure Provider, contractor or subcontractor
must be properly licensed under the laws of the State and all applicable
local ordinances.
6.
Each Wireless Infrastructure Provider, contractor or subcontractor
shall have the same obligations with respect to its work as Wireless
Services Provider would have hereunder and Applicable Law if the work
were performed by the Wireless Services Provider. The Wireless Services
Provider shall be responsible for ensuring that the work of Wireless
Infrastructure Providers, contractors or subcontractors is performed
consistent with their Permits and Applicable Law, and shall be responsible
for promptly correcting any acts or omissions by a Wireless Infrastructure
Provider, contractor or subcontractor.
K.
Indemnity,
Insurance, Performance Bonds.
1.
Indemnity.
a.
Wireless Providers shall indemnify and hold the City, its officers
and employees harmless against any damage or personal injury caused
by the negligence of the Wireless Provider or its employees, agents,
or contractors.
2.
Insurance. City shall require any wireless provider or wireless infrastructure
provider or any third party contractor working in the City right-of-way
to comply with City business license, liability insurance and workman's
compensation insurance requirements as established in business license
Section of the City Code, in addition to the provision of liability
insurance stated below:
a.
As part of the Permit process, a Wireless Provider must provide proof
of liability insurance coverage against any damage or personal injury
caused by the negligence of the Wireless Provider or its employees,
agents, or contractors. The Wireless Provider's liability insurance
policy must name the City or its officers and employees as additional
insureds.
b.
In the alternative, a Wireless Provider must demonstrate that it
has in effect a comparable self-insurance program.
3.
Exemption.
a.
Applicants that have at least twenty-five million dollars ($25,000,000.00)
in assets in the State and do not have a history of permitting non-compliance
within the City's jurisdiction shall be exempt from the insurance
and bonding requirements otherwise required by this Section, except
for those requirements necessary to obtain a business license to operate
in the City. The City may require an Applicant to provide proof by
affidavit that its assets meet or exceed this requirement at the time
of filing the Application.
L.
Miscellaneous
Provisions.
1.
Compliance With Laws. Each Applicant shall comply with all applicable
City ordinances, resolutions, rules and regulations heretofore and
hereafter adopted or established, to the extent that they are consistent
with State and Federal law.
2.
Franchises Not Superseded. Nothing herein shall be deemed to relieve
an Applicant of the provisions of an existing franchise, license or
other agreement or permit.
3.
Rights And Remedies.
a.
The exercise of one (1) remedy under this Section 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.
b.
The City hereby reserves to itself the right to intervene in any
suit, action or proceeding involving any provisions of this Section.
c.
No Applicant shall be relieved of its obligation to comply with any
of the provisions of this Section by reason of any failure of the
City to enforce prompt compliance.
4.
Incorporation By Reference. Any Permit granted pursuant to this Section
shall by implication include a provision that shall incorporate by
reference this Section into such Permit as fully as if copied herein
verbatim.
5.
Calculation Of Time. Unless otherwise indicated, when the performance
or doing of any act, duty, matter, or payment is required under this
Section or any Permit, and a period of time is prescribed and is fixed
herein, the time shall be computed so as to exclude the first and
include the last day of the prescribed or fixed period of time.
6.
Severability. If any term, condition, or provision of this Section
shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in Applicable
Law so that the provision that has been held invalid is no longer
invalid, said provisions shall there upon return to full force and
effect without further action by the City and shall thereafter be
binding on the Applicant and the City.
M.
Annexation.
The provisions hereof shall specifically apply to any lands or property
annexed as the date of such annexation.
N.
Relocation
Of Facilities. Whenever, by reason of changes in the grade or widening
of a street or in the location or manner of constructing a water pipe,
drainage channel, sewer, or other City-owned underground or above
ground structure, it is deemed necessary by the City, in the interest
of public safety and convenience, to move, alter, or change the location
of underground or above ground facilities of a Wireless Provider,
the Wireless Provider shall relocate such facilities, on alternative
Right-of-Way provided by the City, if available, upon adequate notice
in writing by the City, without claim for reimbursement or damages
against the City.
O.
Standards
Applicable To City. Any standards in this Section relating to Small
Wireless Facilities shall be fully applicable to work performed by
the City and its departments.
P.
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 or in any manner connected with the subject written
hereof, unless expressly provided otherwise herein or hereafter.
