City of O'Fallon, MO Article II Right-Of-Way

Section 406.020 Right-Of-Way Permits.

[R.O. 2008 § 406.020; Ord. No. 5376 § 1, 9-25-2008; Ord. No. 6252 § 1, 9-8-2016; Ord. No. 6506, 10-11-2018]

A. Application Requirements.

1. Any person desiring to perform ROW work must first apply for and obtain a ROW permit in addition to any other building permit, license, easement, franchise or authorization required by law. In the event of a need for emergency ROW work, the person conducting the work shall as soon as practicable notify the City of the location of the work and shall apply for the required ROW permit as soon as practicable following the commencement of the work, not to exceed the third business day thereafter. The Engineer may design and issue general permits for emergency ROW work for several different locations or throughout the City.

2. An application for a ROW permit shall be submitted to the Engineer. The Engineer may design and make available standard forms for such applications, requiring such information as allowed by law and as the Engineer determines in his or her discretion to be necessary and consistent with the provisions of this Chapter and to accomplish the purposes of this Chapter. Each application shall at a minimum contain the following information for the proposed ROW work, unless otherwise waived by the Engineer:

a. The name, address and telephone number of a representative whom the City may notify or contact at any time [i.e., twenty-four (24) hours per day, seven (7) days per week] concerning the work;

b. If different from the applicant, the name, address and telephone number of the person or entity owning or operating the facilities in the ROW for which the proposed work is to be performed;

c. A description of the proposed work, including a conceptual master plan and an engineering site plan or other technical drawing or depiction showing the nature, dimensions, location and description of the applicant's proposed work or facilities, their proximity to other facilities that may be affected by the proposed work and the number of street crossings and their locations and dimensions, if applicable;

(1) If there are areas of established landscaping, irrigation, lighting, or other unusual items that are in the path of excavation, then detailed photographs of these items shall be included. Letters from the owners of these facilities may be needed if they are to be altered in any way.

d. Projected commencement and termination dates and anticipated duration of the work or, if such dates are unknown, a representation that the applicant shall provide the Engineer with reasonable advance notice of such dates once they are determined;

e. Copies of any required certificates of insurance or performance and maintenance bonds, as outlined in this Chapter.

3. The information required by the application may be submitted in the form maintained by the applicant, provided it is responsive to the application's requirements and the applicant shall be allowed a reasonable amount of time to complete the application based on the amount of data or information requested or required.

4. Each such application shall be accompanied by the following payments:

a. An application fee approved by the City to cover the cost of processing the application.

b. A deposit for attending the pre-construction meeting. Said fee will be returned upon verification of attendance of the meeting.

c. An escrow or bond shall be submitted to the City for restoration purposes.

d. Any other amounts due to the City from the applicant, including, but not limited to, prior delinquent fees, costs and any loss, damage or expense suffered by the City because of the applicant's prior work in the rights-of-way or for any emergency actions taken by the City, but the Engineer may modify this requirement to the extent the Engineer determines any such fees to be in good-faith dispute.

e. Failure to submit a permit application may result in triple the permit fees being applied. Emergency ROW work is exempt from this condition.

5. Applicants shall participate in any joint planning, construction and advance notification of such work, including coordination and consolidation of any excavation of or disturbance to the rights-of-way as directed by the Engineer. When deemed necessary to accomplish the goals of this Section and to the extent permitted by law, the City reserves the right, when feasible and reasonable, to require the sharing of facilities by ROW users. Applicants shall cooperate with each other and other ROW users and the City for the best, most efficient, least intrusive, most aesthetic and least obtrusive use of the rights-of-way.

6. The Engineer may establish procedures allowing applicants to ascertain whether existing capacity may be available from other persons utilizing the rights-of-way along the intended path of any proposed work. The Engineer shall also maintain indexes of all ROW permits issued, both by the ROW user and by the affected rights-of-way.

B. Application Review And Determination.

1. The Engineer shall promptly review each completed application for a ROW permit and shall grant or deny all such applications as provided herein within thirty-one (31) days of receipt thereof. Unless the application is denied, the Engineer shall issue a ROW permit upon determining that the applicant:

a. Has submitted all necessary information;

b. Has paid the appropriate fees, deposits, and escrow; and

c. Is in full compliance with this Chapter and all other City ordinances.

The Engineer may establish procedures for bulk processing of applications and periodic payment of fees to avoid excessive processing and accounting costs.

2. It is the intention of the City that interference with, damage to, excavation or disruption of or the placement of facilities within the City's rights-of-way should be minimized and limited in scope to the extent allowed by law to achieve the purposes of this Chapter. When reasonable and necessary to accomplish such purposes, the Engineer may require as alternatives to the proposed ROW work either less disruptive methods or different locations for facilities, provided that any required alternative:

a. Shall not result in a decline of service quality; and

b. Shall be competitively neutral and non-discriminatory.

The Engineer shall justify to the applicant that the required alternative is reasonable and necessary.

3. Upon receipt of an application, the Engineer shall determine whether any portion of the rights-of-way will be affected by the proposed work and whether the interference, disruption or placement of facilities will be more than minor in nature. In determining whether the proposed work is more than minor in nature, the Engineer shall consider the nature and scope of the work, its location and duration and its effect on the rights-of-way, the use thereof and neighboring properties.

a. If the applicant can show to the Engineer's reasonable satisfaction that the work involves no interference, disruption, excavation or damage to or only minor interference with the rights-of-way or that the work does not involve the placement of facilities or involves time-sensitive maintenance, then the Engineer shall promptly grant the ROW permit.

b. If the Engineer determines that the effect on the rights-of-way will be more than minor in nature and no exemption under the above Subsection (B)(3)(a) or any other provision of this Section applies, the Engineer shall schedule and coordinate the work and grant the ROW permit accordingly. When reasonable and necessary to accomplish the purposes of this Chapter, the Engineer may postpone issuance of a ROW permit and may give public notice of the application in an attempt to identify whether other person(s) intend to do work in the same area within a reasonable period of time, so that all ROW work in the area can be coordinated. Due regard shall be accorded applicants that are required by any law, rule, regulation, license or franchise to provide service to the area defined in the application.

(1) For larger excavation projects, total linear footage per permit shall be limited to two thousand (2,000) linear feet and/or twenty (20) open cut/hole areas. ROW work shall be broken up into separate permits to comply with these requirements. Permits may be suspended by the City until the adjacent permits are completed in full, or at least to the point where the restoration work is complete.

4. Each ROW permit issued by the Engineer shall include:

a. Projected commencement and termination dates or, if such dates are unknown at the time the permit is issued, a provision requiring the ROW user to provide the Engineer with reasonable advance notice of such dates once they are determined;

b. Length of affected rights-of-way, number of road crossings and identification and description of any pavement or curb cuts included in the work;

(1) Any proposed road closings or work up against a road requiring narrowing of the road shall include a detailed traffic management plan, in accordance with the Manual of Uniform Traffic Control Devices (MUTCD).

c. Information regarding scheduling and coordination of work, if necessary;

d. The location of any of the applicant's facilities, both those proposed and existing, and the location of any known facilities owned by another person that may be affected by the proposed work;

e. An acknowledgment and representation by the applicant to comply with the terms and conditions of the ROW permit and this Chapter; and

f. Such conditions and requirements as are deemed reasonably necessary by the Engineer to protect structures and other facilities in the rights-of-way from damage, to restore such rights-of-way and any structures or facilities, to ensure the reasonable continuity and sight lines of pedestrian and vehicular traffic and to protect property values, the aesthetics of adjoining properties and neighborhoods and the public health, safety and welfare.

5. The Engineer may deny an application, if denial is deemed to be in the public interest, for the following reasons:

a. Delinquent fees, costs or expenses owed by the applicant or the ROW user for which the work is to be performed;

b. Failure to provide information required by the application or this Chapter;

c. Unresolved violations of the provisions of this Chapter or other pertinent and applicable City ordinances by the applicant or ROW user for which the work is to be performed;

d. Failure to return the ROW to its previous condition under previously issued ROW permits or after prior excavations by the applicant or ROW user;

e. For reasons of environmental, historic or cultural sensitivity as defined by applicable Federal, State or local law;

f. Refusal to comply with alternative ROW work methods, locations or other reasonable conditions required by the Engineer; and

g. For any other reason to protect the public health, safety and welfare, provided that such denial does not fall within the exclusive authority of the Missouri Public Service Commission or interfere with a ROW user's right of eminent domain of private property and, provided further, that such denial is imposed on a competitively neutral and non-discriminatory basis. In accordance with the foregoing, any wireless telecommunications towers and facilities to be constructed within the ROW shall at a minimum meet the height, visibility, lighting, and fall line limitations and requirements of Article XVIII (Regulations for Wireless Telecommunications Facilities) of Chapter 400, Zoning Code, as applicable to the zoning district in which the towers and facilities would be located. Similarly, other utility facilities to be constructed within the ROW shall at a minimum meet the standards of Article XIX (Utility Facilities Permits and Regulations) of Chapter 400, Zoning Code, as applicable to the zoning district in which the facilities would be located.

C. Permit Revocation And Ordinance Violations.

1. The Engineer may revoke a ROW permit without fee refund after notice and an opportunity to cure, but only in the event of a substantial breach of the terms and conditions of the permit or this Chapter. Prior to revocation the Engineer shall provide written notice to the ROW user identifying any substantial breach and allowing a reasonable period of time not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety. The cure period shall be extended by the Engineer on good cause shown by the ROW user. A substantial breach includes, but is not limited to, the following:

a. A material violation of a provision of the ROW permit or this Chapter;

b. An evasion or attempt to evade any material provision of the ROW permit or this Chapter or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its residents;

c. A material misrepresentation of fact in the ROW permit application;

d. A failure to complete ROW work by the date specified in the ROW permit, unless an extension is obtained or unless the failure to complete the work is due to reasons beyond the ROW user's control; and

e. A failure to correct, upon reasonable notice and opportunity to cure as specified by the Engineer, work that does not conform to applicable national safety ordinances, industry construction standards, this Chapter or any other applicable ordinances, provided that City standards are no more stringent than those of a national safety ordinance.

2. Any breach of the terms and conditions of a ROW permit shall also be deemed a violation of this Chapter, and in lieu of revocation the Engineer may initiate prosecution of the ROW user for such violation.

D. Exceptions. Projects with a construction plan approved by the City are not required to obtain a separate ROW permit for any work contained in the construction plan approval. City-sponsored capital improvement projects, requiring utility adjustments, are not required to obtain a separate ROW permit for any directly associated adjustments or new facilities.

Section 406.030 Work In The Rights-Of-Way.

[R.O. 2008 § 406.030; Ord. No. 5376 § 1, 9-25-2008; Ord. No. 6506, 10-11-2018]

A. Jurisdiction, Inspection And Stop Work Orders.

1. All facilities and ROW work shall be subject to inspection by the City and the supervision of all Federal, State and local authorities having jurisdiction in such matters to ensure compliance with all applicable laws, ordinances, departmental rules and regulations and the ROW permit.

2. The Engineer shall have full access to all portions of the ROW work and may issue stop work orders and corrective orders to prevent unauthorized work or substandard work as established in Subsection (G) hereof. Such orders:

a. May be delivered personally or by certified mail to the address(es) listed on the application for the ROW permit or the person in charge of the construction site at the time of delivery;

b. Shall state that substandard work or work not authorized by the ROW permit is being carried out, summarize the substandard or unauthorized work and provide a period of no longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety; and

c. May be enforced by equitable action in the Circuit Court of St. Charles County, Missouri, and in such case the person responsible for the substandard or unauthorized work shall be liable for all costs and expenses incurred by the City in enforcing such orders, including reasonable attorneys' fees, in addition to any and all penalties established in this Chapter.

B. Underground Facilities.

1. In conjunction with the City's long-standing policy favoring underground construction, no person may erect, construct or install new poles or other facilities above the surface of the rights-of-way without the written permission of the City, unless the City's authority has been preempted by State or Federal law. Such permission may be granted through a ROW permit when other similar facilities exist above ground or when conditions are such that underground construction is impossible or impractical, as determined by the City, and when in the City's judgment the aboveground construction has minimal aesthetic impact on the area where the construction is proposed.

2. During installation of facilities and to the extent authorized by law, existing underground conduits shall be used whenever feasible and permitted by the owner thereof.

3. In the case of new construction or property development, the developer or property owner shall give reasonable written notice to other potential ROW users of the particular date on which open trenching will be available for installation of facilities. All such users shall cooperate to the extent possible to expedite the installation of facilities while minimizing disruption to the ROW.

C. Aboveground Facilities.

1. The Engineer may designate certain locations or facilities in the ROW to be excluded from use by the applicant for its facilities, including, but not limited to:

a. Ornamental or similar specially designed street lights;

b. Designated historic areas;

c. Facilities, equipment, structures or locations that do not have electrical service adequate or appropriate for the proposed facilities or cannot safely bear the weight or wind loading thereof;

d. Facilities, equipment, structures or locations that in the reasonable judgment of the Engineer are incompatible with the proposed facilities or would be rendered unsafe or unstable by the installation; and

e. Facilities, equipment, structures or locations that have been designated or planned for other use or are not otherwise available for use by the applicant due to engineering, technological, proprietary, legal or other limitations or restrictions.

2. Aboveground facilities shall be a neutral color and shall not be bright, reflective or metallic. Black, gray and tan shall be considered neutral colors, as shall any color that blends with the surrounding dominant color and helps to camouflage the facilities. Facilities shall be located in such a manner as to reduce or eliminate their visibility. A sightproof landscape screen may be required for any authorized aboveground facilities taller than three (3) feet in height or covering in excess of four (4) square feet in size. Such screening shall be sufficient to reasonably conceal the facility. A landscape plan identifying the size and species of landscaping materials shall be approved by the Engineer prior to installation of any facility requiring landscape screening. The person having facilities within the ROW shall be responsible for the installation, repair or replacement of screening materials. Alternative screening or concealment may be approved by the Engineer to the extent it meets or exceeds the purposes of these requirements.

3. Aboveground facilities shall be constructed and maintained in such a manner so as not to emit any unnecessary or intrusive noise and shall comply with all other applicable regulations and standards established by the City or State or Federal law.

4. If the application of this Subsection excludes locations for aboveground facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Engineer shall cooperate in good faith with the applicant to attempt to find suitable alternatives, but such alternatives may exceed the cost increase limitation established by Section 406.020(B)(2), and the City shall not be required to incur any financial cost or to acquire new locations for the applicant.

D. Relocation Of Equipment And Facilities.

1. In the event of an emergency or where construction equipment or facilities create or are contributing to an imminent danger to health, safety or property, the City may, to the extent allowed by law, remove, re-lay or relocate such construction equipment, or the pertinent parts of such facilities, without charge to the City for such action or for restoration or repair. The City shall attempt to notify the person having facilities within the ROW prior to taking such action, but the inability to do so shall not prevent same. Thereafter, the City shall notify the person having facilities within the ROW as soon as practicable.

2. At the City's direction, all facilities shall be moved underground and the cost shall be solely the obligation of the person having facilities within the ROW (or as otherwise allowed or required by law).

3. At the City's direction, a person having facilities within the ROW shall protect, support, disconnect, relocate or remove facilities, at its own cost and expense, when necessary to accommodate the construction, improvement, expansion, relocation or maintenance of streets or other public works or to protect the ROW or the public health, safety or welfare.

4. A person having facilities within the ROW shall, on the reasonable request of any person and after reasonable advance written notice, protect, support, disconnect, relocate or remove facilities to accommodate such person, and the actual cost, reasonably incurred, of such actions shall be paid by the person requesting such action. The person having facilities within the ROW taking such action may require such payment in advance.

5. Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (F) of this Section.

6. No action hereunder shall be deemed a taking of property, and no person shall be entitled to any compensation therefor. No location of any facilities within the rights-of-way shall be a vested interest.

E. Property Repair And Alterations.

1. During any ROW work, the person doing the work shall protect from damage any and all existing structures and property belonging to the City and any other person. Any and all rights-of-way, public property or private property disturbed or damaged during the work shall be repaired or replaced by the person doing the work or the person on whose behalf the work is being done, and such person shall immediately notify the owner of the fact of any damaged property. Such repair or replacement shall be completed within a reasonable time specified by the Engineer and to the Engineer's satisfaction.

a. Excavated areas shall be compacted to avoid settling of the excavated areas. Clean soil backfill shall be used in the pits and clean topsoil near the surface to prepare for proper turf restoration, as outlined below.

(1) Any disturbance on private property or neatly manicured road rights-of-way shall require sod to be placed on the excavated areas in similar condition. If sections of sod can be removed and replaced in good condition, then that is acceptable. Watering of the sod to ensure survival will be required for a minimum of twenty-one (21) days after placement or replacement.

(2) Any other disturbance on road rights-of-way or non-maintained private property shall require seed and straw to be placed and watered for a minimum of twenty-one (21) days after placement, to ensure a good stand of grass has resulted.

(3) If work occurs when normal seed and sod is not available or outside of normal growing seasons (November 1 to April 1), then temporary seed will be used (i.e., annual rye, winter wheat, etc.) until the growing season resumes.

b. Any disturbed area that contains landscaping, hardscaping, mulch, rocks, boulders, shrubbery, flowers, trees, statues, art, irrigation systems, lighting, and other items shall ensure that these are neatly labeled and moved out of the way to the best extent possible prior to work. Restoration includes repairing and/or replacing these items to the same condition before work began. The ROW user shall take whatever means necessary to document the condition of these items before construction begins. Coordination with the owners of these items may be needed to verify their condition before and after construction.

(1) The ROW user may need to hire a third-party professional to mark, repair, replace, or test irrigation, lighting, and other similar items, to verify their condition.

2. Any alteration to the existing sidewalks/trails, curb ramps, streets and curbs, water mains, sewer or drainage system or to any City, State or other public structures or facilities in the rights-of-way required on account of the construction, installation, repair or maintenance of facilities within the rights-of-way shall be made at the sole cost and expense of the owner of such facilities.

a. Driving, parking, placement of outriggers, or other impacts to, under, and over sidewalks or curb ramps is strictly prohibited. If there is absolutely no access to the facility without crossing the sidewalk/curb ramp, then the City shall inspect the sidewalk/curb ramp before construction begins and after construction finishes. Any damage or change in slope such that the facility would be made out of ADA compliance will result in the person being required to remove and replace the damaged facilities.

F. Removal, Abandonment, Transfer and Relocation of Facilities.

1. If a person having facilities within the ROW installs the facilities within the ROW without having complied with the requirements of this Chapter, or abandons the facilities, the City may require the removal of the facilities, remove the facilities at the expense of the person having facilities within the ROW or require the transfer of the facilities as provided herein.

2. If the City requires removal of the facilities, the person shall obtain a ROW permit and shall abide by all requirements of this Chapter. The liability, indemnity, insurance and bonding requirements required herein shall continue in full force and effect during and after the period of removal and restoration and until full compliance by the person with the terms and conditions of the ROW permit and the requirements of this Chapter.

3. If the person fails to remove the facilities after having been directed to do so, the City may, to the extent permitted by law, have the removal done at the person's expense. Alternatively, the City may permit the abandonment, without removal, of the facilities if the Engineer determines that abandonment is not likely to prevent or significantly impair the future use, repair, excavation, maintenance or construction of the ROW.

4. If the person fails to remove the facilities after having been directed to do so, the City may, to the extent permitted by law, decide that the ownership of the facilities should be transferred to the City or to such person as directed by the City. In either case the owner of the facilities shall submit a written instrument, satisfactory in form to the City, transferring to the City, or to such person as directed by the City, ownership of the facilities. The City may sell, assign or transfer all or part of the facilities so transferred.

5. The City shall not remove or seek to possess or transfer the facilities until thirty (30) days have passed following written notice by the Engineer to the person having facilities within the ROW of the City's intent to so act. The Engineer may choose not to act on good cause shown by the person having facilities within the ROW.

G. Standards For ROW Work.

1. Except for emergency ROW work as provided in Section 406.020(A)(1), ROW work shall be performed only upon issuance and in accordance with the requirements of a ROW permit.

a. At all times during the work, ROW permits shall be conspicuously displayed or made available upon demand at the work site and shall be available for inspection.

b. All projects shall require a preconstruction meeting between the City and ROW user. This meeting may be waived if the ROW user has demonstrated considerable compliance with past projects and ordinances; however, it will be the responsibility of the ROW user to still contact the City to initiate said meeting and obtain a determination.

2. If at any time it appears that the duration or scope of the ROW work is or will become materially different from that allowed by the ROW permit, the ROW user shall inform the Engineer. The Engineer may issue a waiver, an extension or a revised ROW permit or require that the ROW user reapply for a ROW permit in accordance with all requirements of this Chapter.

3. ROW users shall not open or encumber more of the rights-of-way than is reasonably necessary to complete the ROW work in the most expeditious manner or allow excavations to remain open longer than is necessary to complete the work.

4. All ROW work that affects vehicular or pedestrian traffic shall be properly signed, barricaded and otherwise protected at the ROW user's expense. The ROW user shall be responsible for providing adequate traffic control in accordance with the Manual of Uniform Traffic Control Devices (MUTCD) to the area surrounding the work as determined by the Engineer.

5. The ROW user shall perform the ROW work at such times that will allow the least interference with the normal flow of traffic and the peace and quiet of the neighborhood as permitted by the Engineer. Unless otherwise provided by the Engineer in the permit, non-emergency ROW work on arterial and collector streets may not be accomplished during the hours of 7:00 A.M. to 8:30 A.M. and 4:00 P.M. to 6:00 P.M. in order to minimize disruption of traffic flow.

6. The ROW user shall notify the City no less than three (3) working days in advance of any ROW work that would require any street closure or would reduce traffic flow to less than two (2) lanes of moving traffic for more than four (4) hours. Except in the event of emergency ROW work, no such closure shall take place without notice and prior authorization from the City.

7. All ROW work shall be in accordance with all applicable Sections of the Occupational Safety and Health Act of 1970, the National Electrical Safety Code and other Federal, State or local laws and regulations that may apply, including, without limitation, local health, safety, construction and zoning ordinances and laws and accepted industry practices, all as hereafter may be amended or adopted. In the event of a conflict among ordinances and standards, the most stringent ordinance or standard shall apply (except insofar as that ordinance or standard, if followed, would result in facilities that could not meet requirements of Federal, State or local law).

8. All facilities shall be installed and located to cause minimum interference with the rights and convenience of property owners and other ROW users, and the City facilities shall not be placed where they will disrupt or interfere with other facilities or public improvements or obstruct or hinder in any manner the various utilities serving the residents and businesses in the City or public improvements.

a. Any installations of utilities in areas of crossing of a City-owned facility will require potholing of the City-owned facility to avoid damage.

b. For horizontal directional drilling operations with a bore path that parallels a City-owned facility within four (4) feet, potholing shall be required at the beginning and end of the bore and every fifty (50) feet along the route.

c. For horizontal directional drilling operations with a bore path that parallels a City-owned facility within six (6) feet, potholing should be required at the beginning and end of the bore and every two hundred (200) feet along the route.

d. Backhoe excavation should not be allowed within two (2) feet of existing facilities.

e. If potholing is impractical due to utility conflicts as specified above, then the City-owned storm and sanitary line shall be TVed after construction to confirm no damage was performed before being released from the job.

f. If the ROW user failed to pothole as specified and damage is done, then the ROW user is responsible for all damage and restoration incurred, including any reimbursement to the City for expenses the City has incurred due to emergency mobilization and/or repair.

9. All facilities shall be of good and durable quality.

10. All ROW work shall be conducted in accordance with good engineering practices performed by experienced and properly trained personnel so as not to endanger any person or property or to unreasonably interfere in any manner with the rights-of-way or legal rights of any property owner, including the City, or unnecessarily hinder or obstruct pedestrian or vehicular traffic.

11. All safety practices required by law shall be used during ROW work, including commonly accepted methods and devices to prevent failures and accidents that are likely to cause damage, injury or nuisance to the public.

12. Any contractor or subcontractor of a ROW user must be properly licensed under laws of the State and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as a ROW user would have pursuant to this Chapter. A ROW user:

a. Must ensure that contractors, subcontractors and all employees performing ROW work are trained and experienced;

b. Shall be responsible for ensuring that all work is performed consistent with the ROW permit and applicable law;

c. Shall be fully responsible for all acts or omissions of contractors or subcontractors;

d. Shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor; and

e. Shall implement a quality control program to ensure that the work is properly performed.

13. A ROW user shall not place or cause to be placed any sort of signs, advertisements or other extraneous markings on the facilities or in the ROW, whether relating to the ROW user or any other person, except such necessary minimal markings approved by the City as necessary to identify the facilities for service, repair, maintenance or emergency purposes or as may be otherwise required to be affixed by applicable law or regulation.

14. Unless otherwise approved in writing by the City, a ROW user shall not remove, cut or damage any trees or their roots within the ROW.

15. Street crossings will be bored unless otherwise permitted by the Engineer.

H. Any person performing ROW work shall provide written notice to all property owners within one hundred eighty-five (185) feet of the site at least forty-eight (48) hours prior to any installation, replacement or expansion of its facilities. Notice shall include a reasonably detailed description of work to be done, the location of work and the time and duration of the work. Notifications shall be in the form of door hangers or letters. Additional changeable message boards may be needed depending on the scope of the project or as directed by the City Engineer or his/her designee.

I. Restoring And Maintaining The Rights-Of-Way.

1. To complete any ROW work, the ROW user shall restore the ROW and surrounding areas, including, but not limited to, any pavement, foundation, concrete slabs or curbs, screening, landscaping or vegetation, to like prior condition and shall comply with other reasonable conditions of the Engineer. Restoration of the ROW shall be completed within the dates specified in the ROW permit unless the Engineer issues a waiver, extension or a new or revised ROW permit.

2. It shall be the duty of any person making an excavation in the ROW to backfill such excavations and restore the surface in accordance with the City's minimum prescribed standards for such surfaces or the following standards as determined by the Engineer:

a. If the excavations are made in the improved portion of the ROW, twelve (12) inches of granular backfill will be placed over exposed facilities and controlled low-strength material (CLSM), also known as "flowable fill," will fill the hole within eight (8) inches of the finished surface for concrete pavements. There will be a plastic membrane placed between the rock base and the CLSM to prevent the material from bleeding into the rock base. The remaining eight (8) inches will be restored by placing a concrete mix that is approved under Section 405.210.

(1) For excavations on concrete streets or sidewalks, all removals shall be made joint-to-joint, and the minimum thickness of replaced concrete shall be either to match existing thickness or seven (7) inches, whichever is greater.

b. If the excavations are made in the improved portion of an asphalt or combination street, twelve (12) inches of granular backfill will be placed over exposed facilities, and CLSM will fill the hole within nine (9) inches of the finished surface. There will be a plastic membrane placed between the rock base and the CLSM to prevent the material from bleeding into the rock base. The remaining nine (9) inches will be restored by placing a six-inch-thick, concrete mix that is approved under Section 405.210 under a three-inch asphalt concrete lift of type C mix to meet existing grades.

(1) Where utility crossings occur on City-owned asphalt streets, the asphalt will be required to be milled and overlaid a distance of ten (10) feet both on either side of the utility (basic patching as defined by saw cutting and repair of the immediate trench area along the road is not allowed). Butt joints will be required at each tie-in point.

c. Driveway entrances shall be constructed in accordance with Section 405.210(G).

d. Spoil piles shall be placed on sheeting and covered when not in use to minimize disturbance and contamination to the existing turf.

e. Streets, sidewalks, driveways and parking lots shall be cleaned at the end of each working day. If disturbed areas are susceptible to runoff traveling onto a paved surface, then siltation control may be required. If the City is required to clean up the paved areas, then a mobilization fee of four hundred dollars ($400.00) will be charged to the ROW user for each occurrence.

3. If a ROW user fails to restore the ROW within the dates specified either by the ROW permit or any extension thereof as granted by the Engineer, the City may take the following actions:

a. The City may perform site restoration. The City may also opt to perform site restoration regardless of any failure by the ROW user, in which case the ROW permit, or any amendment or revision thereto; shall note such option. In either event, if the City performs the site restoration, the cost of the restoration shall be paid for out of the bond or escrow, and then the ROW user shall be responsible for reimbursing the City's reasonable actual restoration costs within thirty (30) days of invoice, if the reimbursement exceeds the bond or escrow amount.

b. The City may stop work on other aspects of the permit until more sufficient restoration is performed.

c. The City may deny issuing any additional permits to the ROW user and/or person(s) having facilities within the rights-of-way until more sufficient restoration is performed.

4. Every ROW user to whom a ROW permit has been granted shall guarantee for a period of one (1) year the restoration of the ROW in the area where the ROW user conducted excavation. Said period shall commence at the date of closeout of the permit. During this period the ROW user shall, upon notification from the Engineer, correct all restoration work to the extent necessary as required by the Engineer. Said work shall be completed within a reasonable time, not to exceed thirty (30) calendar days from receipt of the Engineer's notice unless otherwise permitted by the Engineer. If a ROW user fails to restore the ROW within the time specified, the City may perform the work, and the ROW user shall be responsible for reimbursing the City's reasonable actual restoration costs within thirty (30) days of invoice. The Engineer may extend the cure period on good cause shown.

5. A ROW user shall not be relieved of the obligation to complete the necessary right-of-way restoration and maintenance because of the existence of any performance bond required by this Chapter.

Section 406.040 Escrow-Bonds — Insurance — Surety — Indemnification — Penalties.

[R.O. 2008 § 406.040; Ord. No. 5376 § 1, 9-25-2008; Ord. No. 6506, 10-11-2018]

A. Escrow, Performance and Maintenance Bonds.

1. Prior to any ROW work a ROW user shall establish a performance and maintenance bond in an amount of five thousand dollars ($5,000.00) to ensure the restoration and protection of the rights-of-way.

a. The bond shall continue in full force and effect for a period of twenty-four (24) months following completion of the work.

b. The Engineer shall have the authority to extend the maintenance bond period for up to an additional twenty-four (24) months.

c. The Engineer may waive this requirement when the work involves no or only minor disruption or damage to the rights-of-way.

d. The Engineer may waive this requirement when the ROW user (typically a utility company) has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance with State and local regulations.

2. If a ROW user fails to complete the ROW work in a safe, timely and competent manner or if the completed restorative work fails without remediation within the time period for the bond (as determined by the Engineer), then after notice and a reasonable opportunity to cure there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the ROW user and the cost of completing work within or restoring the rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against a security fund or letter of credit where such amount exceeds that available under a security fund or letter of credit.

3. Upon completion of ROW work to the satisfaction of the Engineer and upon lapse of the bond period, including any extension by the Engineer, the City shall release the bond.

4. The bond shall be issued by a surety with an "A" or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition, shall be subject to the approval of the City's attorney and shall contain the following endorsement:

"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 lieu of the bond required herein, the ROW user may establish in the City's favor such other security as the Engineer may determine to be commensurate with the noted bonding requirements, including, but not limited to, an annual bond to be maintained in the minimum amount of twenty-five thousand dollars ($25,000.00). Escrow may also be deposited with the City The escrow must be in the form of cash, check or wire transfer to the City of O'Fallon.

B. Insurance.

1. All ROW users shall maintain, for the duration of any ROW work and, when applicable, for as long as the ROW user has facilities within the rights-of-way, at least the following liability insurance coverage: workers' compensation and employer liability insurance to meet all requirements of Missouri law and commercial general liability insurance with respect to the construction, operation and maintenance of the facilities and the conduct of the ROW user's business in the City in the minimum amounts of:

a. Commercial General Liability Insurance. The Vendor shall carry public and property damage insurance which shall include bodily injury and accidental death to any person and subject at the minimum limits set forth below:

Liability Limits

$1,000,000.00 per occurrence.

$3,000,000.00 general aggregate.

$3,000,000.00 products/completed operations aggregate.

Additional insured status must be provided to the City and confirmed by copy of such endorsement.

An umbrella/excess liability policy can be used to attain the required limits.

b. Commercial Automobile Liability Insurance. The vendor shall maintain commercial automobile liability insurance coverage in the amounts not less than the minimum limits set forth below:

Bodily Injury and Property Damage

$3,000,000.00 combined single liability limit.

An umbrella/excess liability policy can be used to attain the required limits.

c. These insurance requirements shall not be construed to limit the liability of any person or to impose any liability on the City or to waive any sovereign immunity.

2. All insurance policies shall be with sureties qualified to do business in the State of Missouri with an "A" or better rating of insurance by Best's Key Rating Guide, Property/Casualty Edition, and in a form approved by the City.

3. All insurance policies shall be submitted with the permit application for review by the City, and a ROW user having facilities within the rights-of-way shall keep on file with the City current certificates of insurance.

4. All general liability insurance policies shall name the City, its officers, boards, board members, commissions, commissioners, agents and employees as additional insureds and shall further provide that any cancellation or reduction in coverage shall not be effective unless thirty (30) days' prior written notice thereof has been given to the Engineer. A ROW user shall not cancel any required insurance policy without submission of proof that it has obtained alternative insurance that complies with this Chapter.

5. The Engineer may exempt in writing from these insurance requirements any self-insured ROW user, provided that the ROW user demonstrates to the Engineer's satisfaction that the ROW user's self-insurance plan is commensurate with said requirements and that the ROW user has sufficient resources to meet all potential risks, liabilities and obligations contemplated by the requirements of this Chapter. The Engineer may require a security fund or letter of credit as a condition to a self-insured's exemption. The Engineer may waive this requirement when the ROW user (typically a utility company) has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance with applicable regulatory law.

C. Indemnification.

1. Any ROW user granted a ROW permit and any person having facilities within the rights-of-way, as partial consideration for the privilege granted, shall, at its sole cost and expense, indemnify, hold harmless and defend the City, its officials, boards, board members, commissions, commissioners, agents and employees against any and all claims, suits, causes of action, proceedings and judgments for damages or equitable relief arising out of:

a. Any ROW work, including, but not limited to, the construction, maintenance, repair or replacement of the facilities;

b. The operation of its facilities;

c. Failure to secure consents from landowners; or

d. Any actions taken or omissions made by the person pursuant to the authority of this Chapter.

2. The foregoing indemnity provisions include, but are not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or proceeding prior to the person assuming such defense. The City shall notify a person of claims and suits within seven (7) business days of its actual knowledge of the existence of such claim, suit or proceeding. Once a person assumes such defense, the City may at its option continue to participate in the defense at its own expense.

3. Notwithstanding anything to the contrary contained in this Chapter, the City shall not be so indemnified or reimbursed in relation to any amounts attributable to:

a. The City's own negligence, willful misconduct, intentional or criminal acts; or

b. The City acting in a proprietary capacity to deliver service(s) within the City.

4. Recovery by the City of any amounts under insurance, a performance bond or otherwise does not limit a person's duty to indemnify the City in any way; nor shall such recovery relieve a person of amounts owed to the City or in any respect prevent the City from exercising any other right or remedy it may have.

D. Penalties. Any person violating any provision of this Chapter shall, upon conviction, be punished by a fine/imprisonment as set out in Section 100.010 of this Code.

Section 406.050 Dispute Resolutions, Appeals And Arbitration.

[R.O. 2008 § 406.050; Ord. No. 5376 § 1, 9-25-2008; Ord. No. 6506, 10-11-2018]

A. The Engineer shall make a final determination as to any matter concerning the grant, denial or revocation of a ROW permit as provided in this Chapter. On the request of an applicant or a ROW user and within a reasonable period of time, the Engineer also shall make a final determination as to any other issue relating to the use of the ROW, the imposition of any fee or the application of any provision of this Chapter; provided, however, that this review shall not apply to matters being prosecuted in the Municipal Court. Any final determination of the Engineer shall be subject to review as provided herein.

B. Any person aggrieved by a final determination of the Engineer may appeal in writing to the City Administrator within five (5) business days thereof. The appeal shall assert specific grounds for review, and the City Administrator shall render a decision on the appeal within fifteen (15) business days of receipt affirming, reversing or modifying the determination of the Engineer. The City Administrator may extend this time period for the purpose of any investigation or hearing deemed necessary. A decision affirming the Engineer's determination shall be in writing and supported by findings establishing the reasonableness of the decision.

C. Any person aggrieved by the final determination of the City Administrator may file a petition for review pursuant to Chapter 536, RSMo., as amended, in the Circuit Court of the County of St. Charles. Such petition shall be filed within thirty (30) days after the City Administrator's final determination.

D. Arbitration and Mediation.

1. On agreement of the parties and in addition to any other remedies, any final decision of the City Administrator may be submitted to mediation or binding arbitration.

2. In the event of mediation, the City Administrator and the applicant or ROW user shall agree to a mediator. The costs and fees of the mediator shall be borne equally by the parties, and each party shall pay its own costs, disbursements and attorney fees.

3. In the event of arbitration, the City Administrator and the applicant or ROW user shall agree to a single arbitrator. The costs and fees of the arbitrator shall be borne equally by the parties. If the parties cannot agree on an arbitrator, the matter shall be resolved by a three-person arbitration panel consisting of one (1) arbitrator selected by the City Administrator, one (1) arbitrator selected by the applicant or ROW user and one (1) person selected by the other two (2) arbitrators, in which case each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the expense of the third arbitrator and of the arbitration. Each party shall also pay its own costs, disbursements and attorney fees.

Section 406.060 Miscellaneous.

[R.O. 2008 § 406.060; Ord. No. 5376 § 1, 9-25-2008; Ord. No. 6506, 10-11-2018]

A. At the discretion of the Engineer, after the completion of ROW work the ROW user shall provide to the City as-built drawings, maps or other comparable records as determined by the Engineer, drawn to scale and certified to the City as reasonably depicting the location of all facilities constructed pursuant to the ROW permit. Such records may be provided to the Engineer in the form maintained by the ROW user, but when available to the ROW user, shall be submitted in automated formats that are compatible with City systems, as determined by the Engineer, or in hard copy otherwise.

B. Upon failure of a ROW user to commence, pursue or complete any ROW work required by law or by the provisions of this Chapter to be done in any street within the time prescribed and to the reasonable satisfaction of the City, the City may, at its option, after thirty (30) days' notice cause such work to be done, and the ROW user shall pay to the City the cost thereof in the itemized amounts reported by the City to the ROW user within thirty (30) days after receipt of such itemized report.

C. Upon ten (10) days' written notice and with the supervision of the City or as otherwise provided by law, a ROW user shall have the authority to trim trees that overhang rights-of-way of the City so as to prevent the branches of such trees from coming in contact with its facilities, at its own expense subject to the supervision and direction of the City. Nothing in this Subsection shall authorize the trimming of trees on private property without permission of the property owner. All cut materials shall be properly disposed.

D. During ROW work by a ROW user the City shall have the right to install and to thereafter maintain at its own cost in any excavation to or other applicable disturbance of the ROW any parallel facilities of its own that do not unreasonably interfere with the operations of other facilities.

E. Nothing in this Chapter shall be in preference or hindrance to the right of the City and any board, authority, commission or public service corporation of the City to use or occupy the rights-of-way or to perform or carry on any public works or public improvements of any description.

Section 406.070 Small Wireless Facility Deployment.

[R.O. 2008 § 406.070; Ord. No. 6523, 12-13-2018]

A. Title and Intent.[1] This Section shall be known and may be cited as the "Small Wireless Facility Deployment Code," and it is intended to encourage and streamline the deployment of small wireless facilities in the City and to help ensure that robust and dependable wireless radio-based communication services and networks are available throughout the City, consistent with State and Federal law, including Sections 67.5110 to 67.5121, RSMo. (while in effect), and Sections 67.1830 to 67.1846, RSMo. The provisions of other sections of Chapter 406 shall apply to small wireless deployments except to the extent inconsistent with this Section 406.070.

[1] Editor's Note: See Section 67.5110, RSMo.

B. 

Definitions.[2] As used in this Section, the following terms shall mean:

ANTENNA

Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

APPLICABLE CODES

Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or the City's amendments to such codes enacted to prevent physical property damage or reasonably foreseeable injury to persons to the extent not inconsistent with Sections 67.5110 to 67.5121, RSMo. (while in effect).

APPLICANT

Any person who submits an application and is a wireless provider.

APPLICATION

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.

AUTHORITY OR CITY

The City of O'Fallon.

AUTHORITY POLE

A utility pole owned, managed, or operated by or on behalf of the City, but such term shall not include municipal electric utility distribution poles.

AUTHORITY WIRELESS SUPPORT STRUCTURE

A wireless support structure owned, managed, or operated by or on behalf of the City.

COLLOCATE or COLLOCATION

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.

COMMUNICATIONS FACILITY

The set of equipment and network components, including wires, cables, and associated facilities used by a cable operator, as defined in 47 U.S.C. § 522(5); a telecommunications carrier, as defined in 47 U.S.C. § 153(51); a provider of information service, as defined in 47 U.S.C. § 153(24); or a wireless services provider; to provide communications services, including cable service, as SS SCS HCS HB 1991 7 defined in 47 U.S.C. § 522(6); telecommunications service, as defined in 47 U.S.C. § 153(53); an information service, as defined in 47 U.S.C. § 153(24); wireless communications service; or other one-way or two-way communications service.

COMMUNICATIONS SERVICE PROVIDER

A cable operator, as defined in 47 U.S.C. § 522(5); a provider of information service, as defined in 47 U.S.C. § 153(24); a telecommunications carrier, as defined in 47 U.S.C. § 153(51); or a wireless provider.

DECORATIVE POLE

A City pole that is specially designed and placed for aesthetic purposes.

FEE

A one-time, non-recurring charge.

HISTORIC DISTRICT

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.1.a.i-v of the Nationwide Programmatic Agreement codified at 47 CFR Part 1, Appendix C, or are otherwise located in a district made subject to special design standards adopted by City ordinance or under State law as of January 1, 2018, or subsequently enacted for new developments.

MICRO WIRELESS FACILITY

A small wireless facility that meets the following qualifications:

1. Is not larger in dimension than twenty-four (24) inches in length, fifteen (15) inches in width, and twelve (12) inches in height; and

2. Any exterior antenna no longer than eleven (11) inches;

PERMIT

A written authorization required by the City to perform an action or initiate, continue, or complete a project.

PERSON

An individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including any government authority.

RATE

A recurring charge.

RIGHT-OF-WAY

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.

SMALL WIRELESS FACILITY

A wireless facility that meets both of the following qualifications:

1. Each wireless provider's antenna could fit within an enclosure of no more than six (6) cubic feet in volume; and

2. 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, cutoff switch, and vertical cable runs and related conduit for the connection of power and other services.

TECHNICALLY FEASIBLE

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.

UTILITY POLE

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; provided, however, such term shall not include wireless support structures, electric transmission structures, or breakaway poles owned by the State Highways and Transportation Commission.

WIRELESS FACILITY

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:

1. The structure or improvements on, under, or within which the equipment is collocated;

2. Coaxial or fiber-optic cable between wireless support structures or utility poles;

3. Coaxial or fiber-optic cable not directly associated with a particular small wireless facility;

4. A wireline backhaul facility;

WIRELESS INFRASTRUCTURE PROVIDER

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.

WIRELESS PROVIDER

A wireless infrastructure provider or a wireless services provider.

WIRELESS SERVICES

Any services using licensed or unlicensed spectrum, including the use of Wi-Fi, whether at a fixed location or mobile, provided to the public using wireless facilities.

WIRELESS SERVICES PROVIDER

A person who provides wireless services.

WIRELESS SUPPORT STRUCTURE

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.

WIRELINE BACKHAUL FACILITY

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.

[2] Editor's Note: See Section 67.5111, RSMo.

C. Deployment Of Small Wireless Facilities And Associated Poles In Right-Of-Way.[3]

1. The provisions of this Subsection shall only apply to activities of a wireless provider within the right-of-way to deploy small wireless facilities and associated utility poles.

2. Subject to the provisions of this Subsection and Sections 67.5110 to 67.5121, RSMo. (while in effect), a wireless provider may, as a permitted use not subject to zoning review or approval, collocate small wireless facilities and install, maintain, modify, operate, and replace utility poles along, across, upon, and under the right-of-way, except that the placement in the right-of-way of new or modified utility poles in single-family residential zoning districts or areas zoned as historic as of August 28, 2018, shall remain subject to any applicable zoning requirements that are consistent with Sections 67.5090 to 67.5103, RSMo., including, but not limited to, requirements for underground utilities as set forth in Chapter 406. Small wireless facilities collocated outside the right-of-way in property not zoned primarily for single-family residential use shall be classified as permitted uses and not subject to zoning review or approval. Such small wireless facilities and utility poles shall be installed and maintained as not to obstruct or hinder the usual travel or public safety on such right-of-way or obstruct the legal use of such right-of-way by the City, other governmental authorities or other authorized right-of-way users.

3. A wireless provider must obtain a permit pursuant to this Chapter, with such reasonable conditions as may be imposed by the City, 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.

4. Each new, replacement, or modified utility pole installed in the right-of-way shall 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 pole in the same right-of-way, or fifty (50) feet above ground level. 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, or for small wireless facilities on a new utility pole, above the height permitted for a new utility pole. A new, modified, or replacement utility pole that exceeds these height limits shall be subject to all applicable zoning requirements that apply to other utility poles, including as set forth in this Chapter 406, to the extent consistent with Sections 67.5090 to 67.5103, RSMo.

5. 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, as determined by the Director of Planning and Development.

6. Subject to Subsection (D)(4) below, and except for facilities excluded from evaluation for effects on historic properties under 47 CFR 1.1307(a)(4) of the Federal Communications Commission rules, a wireless provider must use appropriate and reasonable, technically feasible, non-discriminatory, and technologically neutral design or concealment measures in a historic district, as determined by the Director of Planning and Development. Any such design or concealment measures shall not have the effect of prohibiting any 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. Small wireless facility collocations shall not interfere with or impair the operation of existing utility facilities, or City or third-party attachments. A wireless provider shall repair all damage to the right-of-way directly caused by the activities of the wireless provider in the right-of-way and shall return the right-of-way to its functional equivalence before the damage under the competitively neutral, reasonable requirements and specifications of the City. If the wireless provider fails to make the repairs required by the City within a reasonable time after written notice, the City may make those repairs and charge the wireless provider the reasonable, documented cost of such repairs.

[3] Editor's Note: See Section 67.5112, RSMo.

D. Permits For Poles In Right-Of-Way And Wireless Facilities In All Locations.[4]

1. The provisions of this Subsection shall apply to the permitting of small wireless facilities to be installed by or for a wireless provider in or outside the right-of-way and to the permitting of the installation, modification, and replacement of utility poles by a wireless provider inside the right-of-way.

2. Wireless providers or their agents shall apply for and obtain a permit to Chapter 406 to collocate a small wireless facility or install a new, modified, or replacement utility pole associated with a small wireless facility as provided in Subsection (C) above. The City shall receive applications for, process, and issue such permits subject to the following requirements:

a. An applicant shall not be required to perform services or provide goods unrelated to the permit, such as in-kind contributions to the City, including reserving fiber, conduit, or pole space for the City;

b. An applicant shall not be required to provide more information to obtain a permit than communications service providers that are not wireless providers, provided that an applicant shall include construction and engineering drawings and information demonstrating compliance with the criteria in Subsection (D)(2)(i) of this Section and an attestation that the small wireless facility complies with the volumetric limitations in the definition of "small wireless facility" in Subsection (B) above;

c. An applicant shall not be required to place small wireless facilities on any specific utility pole or category of poles or require multiple antenna systems on a single utility pole;

d. There is no limit as to the placement of small wireless facilities by minimum horizontal separation distances;

e. An applicant shall comply with reasonable, objective, and cost-effective concealment or safety requirements as provided herein;

f. An applicant that is not a wireless services provider shall 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 delay is caused by lack of commercial power or communications transport facilities to the site and the applicant notifies the City thereof. An applicant that is a wireless services provider shall provide the information required by this Subsection by attestation;

g. 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 Subsection (D)(2)(h) of this Section shall be 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;

h. An application for collocation shall be processed on a non-discriminatory basis and deemed approved if the City fails to approve or deny the application within forty-five (45) days of receipt of the application. An application for installation of a new, modified, or replacement utility pole associated with a small wireless facility shall be processed on a non-discriminatory basis and deemed approved if the City fails to approve or deny the application within sixty (60) days of receipt of the application;

i. The City may deny a proposed collocation of a small wireless facility or installation, modification, or replacement of a utility pole that meets the requirements in Subsection (C)(3) above only 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, 42 U.S.C. §§ 12101 to 12213, 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, a utility, or other third party;

(6) Fail to comply with reasonable and non-discriminatory spacing requirements of general application adopted by ordinance or regulations promulgated by the State Highways and Transportation Commission that concern the location of ground-mounted equipment and new utility poles, subject to wireless provider requests for exception or variance;

(7) Fail to comply with applicable codes, including nationally recognized engineering standards for utility poles or wireless support structures;

(8) 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; or

(9) Fail to comply with reasonable and non-discriminatory undergrounding requirements contained in City ordinances as of January 1, 2018, or subsequently enacted for new developments, that require all new 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, including by wireless provider requests for exception or variance;

j. The City shall document the complete basis for a denial in writing, and send the documentation to the applicant with the communication denying an application. 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. 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;

k. Consolidated Application.

(1) An applicant may file a consolidated application and receive a single permit for the collocation of multiple small wireless facilities; provided, however, the denial of one (1) or more small wireless facilities in a consolidated application shall not delay processing of any other small wireless facilities in the same batch; and

(2) An application may include up to twenty (20) separate small wireless facilities, provided that they are for the same or materially 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. 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-day period, whether from a single applicant or multiple applicants, the City may, upon its own request, obtain an automatic thirty-day extension for any additional collocation or replacement or installation application submitted during that fourteen-day period or in the fourteen-day period immediately following the prior fourteen-day period. The City shall promptly communicate its request to each affected applicant. In rendering a decision on an application for multiple small wireless facilities, the City may approve the application as to certain individual small wireless facilities while denying it as to others based on applicable requirements and standards, including those identified in this Subsection. The City's denial of any individual small wireless facility or subset of small wireless facilities within an application shall not be a basis to deny the application as a whole;

l. Installation or collocation for which a permit is granted under this Subsection shall be completed within one (1) year after the permit issuance date unless the City and the applicant agree to extend this period, or the applicant notifies the City that the delay is caused by a lack of commercial power or communications transport facilities to the site.

m. Approval of an application authorizes the applicant to:

(1) Undertake the installation or collocation; and

(2) Operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of ten (10) years, which shall be renewed for equivalent durations so long as the facilities and poles remain in compliance with the criteria set forth in Subsection (D)(2)(i) of this Section, unless the applicant and the City agree to an extension term of less than ten (10) years. The provisions of this Subsection shall be subject to the right of the City to require, upon adequate notice and at the facility owner's own expense, relocation of facilities as may be needed in the interest of public safety and convenience, and the applicant's right to terminate at any time;

n. There shall be a temporary moratorium on applications for small wireless facilities and the collocation thereof for the duration of a Federal or State-declared natural disaster plus a reasonable recovery period, or 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%);

o. Abandoned small wireless facilities shall be removed as provided in this Chapter 406 or an agreement, as applicable;

p. In determining whether sufficient capacity exists to accommodate the attachment of a new small wireless facility, the City shall take into account that any grant of access hereunder shall be subject to a reservation to reclaim such space, when and if needed, to meet a core utility purpose or documented plan projected at the time of the application pursuant to a bona fide development plan; and

q. In emergency circumstances that result from a natural disaster or accident, the City may require the owner or operator of a wireless facility to immediately remove such facility if the wireless facility is obstructing traffic or causing a hazard on the City's roadway. In the event that the owner or operator of the wireless facility is unable to immediately remove the wireless facility, the City may remove the wireless facility from the roadway or other position that renders the wireless facility hazardous. Under these emergency circumstances, the City shall not be liable for any damage caused by removing the wireless facility and may charge the owner or operator of the wireless facility the City's reasonable expenses incurred in removing the wireless facility.

3. Work Not Requiring Permit.

a. A permit is not required for:

(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.

b. For work described in Subsection (D)(3)(a)(1) and (2) of this Section that involves different equipment than that being replaced, the wireless services provider shall submit a description of such new equipment so that the City may maintain an accurate inventory of the small wireless facilities at that location.

4. No approval for the installation, placement, maintenance, or operation of a small wireless facility under this Section shall be construed to confer authorization for the provision of cable television service, or installation, placement, maintenance, or operation of a wireline backhaul facility or communications facility, other than a small wireless facility, in the right-of-way.

5. A municipal electric utility shall not require an application for the installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between utility poles, in compliance with applicable codes.

[4] Editor's Note: See Section 67.5113, RSMo.

E. Collocations On City Poles And Wireless Support Structures Outside Of Right-Of-Way.[5]

1. This Subsection only applies to collocations on City poles and wireless support structures that are located outside the right-of-way.

2. Subject to Subsection (E)(3) of this Section, the City shall authorize the collocation of small wireless facilities on City wireless support structures and poles to the same extent, if any, that it permits access to such structures for other commercial projects or uses. Such collocations shall be subject to reasonable and non-discriminatory rates, fees, and terms as provided in an agreement between the City, or its agent, and the wireless provider in a form approved by the City Council.

3. The City shall not enter into an exclusive agreement with a wireless provider concerning City poles or wireless support structures, including stadiums and enclosed arenas, unless the agreement meets the following requirements:

a. 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

b. 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.

4. When determining whether a rate, fee, or term is reasonable and non-discriminatory for the purposes of this Subsection, consideration may be given to any relevant facts, including alternative financial or service remuneration, characteristics of the proposed equipment or installation, structural limitations, or other commercial or unique features or components.

[5] Editor's Note: See Section 67.5114, RSMo.

F. Collocations On City Poles Within The Right-Of-Way.[6]

1. The provisions of this Subsection apply to collocations on City poles within the right-of-way by a wireless provider.

2. Neither the City nor any person owning, managing, or controlling City poles in the right-of-way shall enter into an exclusive arrangement with any person for the right to attach to such poles. A person who purchases or otherwise acquires a City pole is subject to the requirements of this Subsection.

3. The City shall allow the collocation of small wireless facilities on its poles using the process set forth in Subsection (D).

4. An application shall include engineering and construction drawings, as well as plans and detailed cost estimates for any make-ready work as needed, for which the applicant shall be solely responsible.

5. Make-ready work shall be addressed as follows, unless the City (or its successor) and applicant agree to different terms in a pole attachment agreement:

a. The rates, fees, and terms and conditions for the make-ready work to collocate on a City pole shall be non-discriminatory, competitively neutral, and commercially reasonable, and shall comply with Sections 67.5110 to 67.5121, RSMo.;

b. Unless the City allows the applicant to perform any make-ready work, the City shall provide a good faith estimate for any make-ready work necessary to enable the 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. If applicable, make-ready work, including any pole replacement, shall be completed by the City within sixty (60) days of written acceptance of the good faith estimate and advance payment by the applicant. The City may require replacement of its pole on a non-discriminatory basis for reasons of safety and reliability, including a demonstration that the collocation would make the pole structurally unsound, including, but not limited to, if the collocation would cause a utility pole to fail a crash test; and

c. The person owning, managing, or controlling the City pole shall not require more make-ready work than required to meet applicable codes or industry standards. Fees for make-ready work shall not include costs related to preexisting or prior damage or non-compliance unless the City had determined, prior to the filing of the application, to permanently abandon and not repair or replace the structure. Fees for make-ready work, including any pole replacement, shall not exceed actual costs or the amount charged to other communications service providers for similar work, and shall not include third-party fees, charges, or expenses, except for amounts charged by licensed contractors actually performing the make-ready work.

6. When a small wireless facility is located in the right-of-way of the State highway system, equipment and facilities directly associated with a particular small wireless facility, including coaxial and fiber optic cable, conduit, and ground-mounted equipment, shall remain in the utility corridor except as needed to reach a City or utility pole in the right-of-way but outside the utility corridor in which the small wireless facility is collocated.

[6] Editor's Note: See Section 67.5115, RSMo.

G. Rates And Fees.[7]

1. This Subsection governs the rates and fees to collocate small wireless facilities on City poles and the rates and fees for the placement of utility poles, but does not limit the City's ability to recover specific removal costs from the attaching wireless provider for abandoned structures. The rates to collocate on City poles shall be non-discriminatory regardless of the services provided by the collocating applicant.

2. The City shall not require a wireless provider to pay any rates, fees, or compensation to the authority or other person other than what is expressly authorized by Sections 67.5110 to 67.5121, RSMo. (while in effect), for the use and occupancy of a right-of-way, for collocation of small wireless facilities on utility poles in the right-of-way, or for the installation, maintenance, modification, operation, and replacement of utility poles in the right-of-way.

3. Application fees shall be as follows:

a. The total fee for any application under Subsection (D)(2) for collocation of small wireless facilities on existing City poles shall be one hundred dollars ($100.00) per small wireless facility. An applicant filing a consolidated application under Subsection (D)(2)(k) shall pay one hundred dollars ($100.00) per small wireless facility included in the consolidated application; and

b. The total application fees for the installation, modification, or replacement of a pole and the collocation of an associated small wireless facility shall be five hundred dollars ($500.00) per pole.

4. Collocation Charges.

a. The rate for collocation of a small wireless facility to a City pole shall be one hundred fifty dollars ($150.00) per pole per year.

b. The City shall not charge a wireless provider any fee, tax other than a tax authorized by Subsection (G)(4)(c) below, or other charge, or require any other form of payment or compensation, to locate a wireless facility or wireless support structure on privately owned property, or on a wireless support structure not owned by the City.

c. The City shall not demand any fees, rentals, licenses, charges, payments, or assessments from any applicant or wireless provider for, or in any way relating to or arising from, the construction, deployment, installation, mounting, modification, operation, use, replacement, maintenance, or repair of small wireless facilities or utility poles, if not allowed by Section 67.5116 RSMo. (while in effect).

[7] Editor's Note: See Section 67.5116, RSMo.

H. Authority Preserved.[8] Subject to the provisions of Sections 67.5110 to 67.5121, RSMo. (while in effect), and applicable Federal law, the City shall continue to exercise zoning, land use, planning, and permitting authority within its territorial boundaries, including with respect to wireless support structures and utility poles, except that the City shall not have or exercise any jurisdiction or authority over the design, engineering, construction, installation, or operation of any small wireless facility located in an interior structure or upon the site of any campus, stadium, or athletic facility not owned or controlled by the City, other than to comply with applicable codes.

[8] Editor's Note: See Section 67.5118, RSMo.

I. Prior Agreements.[9] This Section 406.070 shall not nullify, modify, amend, or prohibit a mutual agreement between the City and a wireless provider made prior to August 28, 2018, but an agreement that does not fully comply with Sections 67.5110 to 67.5121, RSMo. (while in effect), shall apply only to small wireless facilities and utility poles that were installed or approved for installation before August 28, 2018, subject to any termination provisions in the agreement. Such an agreement shall not be renewed, extended, or made to apply to any small wireless facility or utility pole installed or approved for installation after August 28, 2018, unless it is modified to fully comply with Sections 67.5110 to 67.5121 RSMo. (while in effect). In the absence of an agreement, and until such a compliant agreement or ordinance is entered or adopted, small wireless facilities and utility poles that become operational or were constructed before August 28, 2018, may remain installed and be operated under the requirements of Sections 67.5110 to 67.5121, RSMo. (while in effect).

[9] Editor's Note: See Section 67.5119, RSMo.

J. Indemnification, Insurance, And Bonding Requirements.[10]

1. A wireless provider shall indemnify and hold the City and its elected and appointed officers and employees harmless against any damage or personal injury caused by the negligence of the wireless provider or its employees, agents, or contractors, including but not limited to reasonable attorneys' fees incurred by the City.

2. A wireless provider shall have in effect insurance coverage consistent with this Subsection, or demonstrate a comparable self-insurance program, all in accordance with Section 406.040. A self-insured wireless provider does not need to name the City or its officers and employees as additional insured. A wireless provider shall furnish proof of insurance, if applicable, prior to the effective date of any permit issued for a small wireless facility.

3. The bonding requirements of Section 406.040 shall apply to small wireless facilities. The purpose of such bonds shall be to:

a. Provide for the removal of abandoned or improperly maintained small wireless facilities, including those that an authority determines need to be removed to protect public health, safety, or welfare;

b. Restore the right-of-way in connection with removals under Section 67.5113, RSMo.;

c. Recoup rates or fees that have not been paid by a wireless provider in over twelve (12) months, so long as the wireless provider has received reasonable notice from the City of any non-compliance listed above and been given an opportunity to cure;

d. Bonding requirements shall not exceed one thousand five hundred dollars ($1,500.00) per small wireless facility. For wireless providers with multiple small wireless facilities within the City, the total bond amount across all facilities shall not exceed seventy-five thousand dollars ($75,000.00), which amount may be combined into one bond instrument.

4. 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 shall, under Section 67.1830, RSMo., be exempt from the insurance and bonding requirements otherwise authorized by this Section.

5. Any contractor, subcontractor, or wireless infrastructure provider shall be under contract with a wireless services provider to perform work in the right-of-way related to small wireless facilities or utility poles, and such entities shall be properly licensed under the laws of the State and all applicable City ordinances. Each contracted entity shall have the same obligations with respect to his or her work as a wireless services provider would have under this Section, under Sections 67.5110 to 67.5121, RSMo., and other applicable laws if the work were performed by a wireless services provider. The wireless services provider shall be responsible for ensuring that the work of such contracted entities is performed consistently with the wireless services provider's permits and applicable laws relating to the deployment of small wireless facilities and utility poles, and responsible for promptly correcting acts or omissions by such contracted entity.

[10] Editor's Note: See Section 67.5121, RSMo.

K. Expiration. [11]Section 406.070 shall expire at such time that Sections 67.5110 to 67.5122, RSMo., expire, except that for small wireless facilities already permitted or collocated on City poles prior to such date, the rate set forth in Subsection (G) for collocation of small wireless facilities on City poles shall remain effective for the duration of the permit authorizing the collocation.

[11] Editor's Note: See Section 67.5122, RSMo.

Section 406.080 through Section 406.100. (Reserved)