Cross References — Motor vehicles and traffic, Title III; parks and recreation, ch. 240; planning, ch. 400; vehicles for hire, ch. 625; subdivision and development, ch. 410; zoning regulations, ch. 405.
ATTACHMENTS
Appendix A: Rights-Of-Way Usage Code Fees
[R.O. 2008 §24-1; Ord. No. 977 §1(3.25), 1-5-1981; Ord. No. 5474 §1, 5-23-2016; Ord. No. 5601, 8-27-2018]
A. 
No person shall make any excavation in, modification to, or place any obstruction in or upon a public street or public right-of-way without approval from the City and, if applicable, other lawful authorities. Such approval shall be in the form of a right-of-way permit. Fees for a right-of-way permit are set forth in Appendix A.[1]
[1]
Editor's Note: Appendix A is included as an attachment to this Chapter.
B. 
Before any excavation is made or sidewalks, curbs, gutters, driveway entrances, street lights, or fire hydrants or other utility connections are constructed or installed in a public street or public right-of-way, a right-of-way permit shall be obtained from the City Public Works Department by the property owner or his/her representative. No other improvements or items shall be made or installed within a public street or public right-of-way, including but not limited to walls, fences, irrigation systems, and "invisible" electric dog fences. Such permit shall only be issued if the proposed excavation, construction or installation is consistent with sound traffic management, applicable City, State, and Federal laws, and public safety. Any required building permit and permits or approvals from other lawful authorities must also be separately obtained, and the City may withhold its approval of the right-of-way permit until such other lawful authorities have approved the proposed project or use.
C. 
A mailbox in a standard location with a base not exceeding thirty (30) inches in any dimension may be installed without permit for each property in accordance with United States Postal Services requirements.
D. 
Any permitted construction or installation shall remain solely by license revocable hereunder. Any construction or installation made in any public street or public right-of-way with or without permit shall be removed and/or relocated upon demand by the City. Upon failure of the property owner to remove and/or relocate any such item, the City may proceed with removal and shall have a lien for any and all costs against the involved property.
E. 
Work within public streets or public right-of-way shall be completed solely as described and authorized by permit issued hereunder. Any areas disturbed by an installation hereunder shall be promptly restored, including replanting or replacement of grass, landscaping, or other improvements, as directed by the City.
F. 
Facilities subject to Section 515.030 et seq., are not subject to this Section.
[R.O. 2008 §24-3; Ord. No. 513 §41, 12-23-1968]
A. 
No person shall make or cause to be made any excavation or shall occupy or cause to be occupied any portion of any public street, alley, highway or public place with building material, construction equipment or any other obstruction of any character whatsoever without:
1. 
Causing one (1) flashing red or yellow light to be securely and conspicuously placed on or near such excavation, building material or obstruction, providing such excavation or obstruction does not extend more than ten (10) feet in length; and for any excavation or obstruction extending more than ten (10) feet, two (2) such lights, one (1) at each end or one (1) such light for each additional twenty-five (25) feet or part thereof;
2. 
Keeping all of such lights burning the entire period of time from sunset to sunrise;
3. 
Securing and completely covering any such excavation in excess of three (3) feet with one (1) inch plywood or its structural equivalent.
B. 
No person shall remove, destroy or render insecure any fence, barricade or guard erected about or around any excavation or extinguish, destroy or remove any light or lamp placed at said excavation or aid, assist, counsel or encourage the removal of any such fence, barricade or guard or the extinction of any such warning lights as hereinbefore provided.
[Ord. No. 5787, 6-27-2022]
Any person who mows grass or conducts any other work on City property, and any person who hires or directs another person to conduct such work, without a written agreement with the City authorizing such work shall thereby assume all risks associated with such work and release all claims against the City and its officials and employees related to or arising from such work. Further, each such person shall indemnify, hold harmless and defend the City and its officials and employees from and against any and all claims related to or arising from such work. Such assumption of risk, release and indemnification requirements apply whether the work is undertaken voluntarily or because of the requirements of Section 220.070 or other ordinance.
[R.O. 2008 §24-20; Ord. No. 4053 §1(Exh. A), 12-11-2006; Ord. No. 5000 §1A, 9-6-2007]
A. 
Title. This Article shall be known and may be cited as the "Rights-of-Way Usage Code".
B. 
Definitions And Word Usage — General. For the purposes of this Code, the following terms, phrases, words and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense and vice versa, words in the plural number include the singular number and vice versa and the masculine gender includes the feminine gender and vice versa. The words "shall" and "will" are mandatory and "may" is permissive. For convenience, the first (1st) letter of terms, phrases, words and abbreviations defined in this Code have been capitalized, but an inadvertent failure to capitalize such letter shall not affect meaning.
C. 
Definitions. As used in this Article, the following terms shall have these prescribed meanings:
ANTENNA
Facilities consisting of any device, array or antenna of any kind, including, but not limited to, a whip antenna, panel antenna or satellite antenna, that transmits or receives electromagnetic signals to deliver microwave, cellular, broadcast or other non-wire voice, data or video communications service through the airwaves above the rights-of-way and which attach to either pre-existing or subsequently approved facilities.
ANTENNA FEE
A compensation fee approved by the City Council established in the City's pertinent schedule of fees from time to time for the rent of a portion of the rights-of-way by a person having facilities within the rights-of-way. The antenna fee shall be calculated on the number of antennas located within the ROW and shall not include any linear foot fee, but a ROW user may be subject to both an antenna fee and a linear foot fee.
APPLICANT
The person applying for and receiving a ROW permit for ROW work.
APPLICATION
That form which an applicant must use to obtain a ROW permit to conduct ROW work.
CITY
The City of Creve Coeur, Missouri, and its agencies, departments, agents and employees acting within their respective areas of authority.
CITY ADMINISTRATOR
The City Administrator of the City of Creve Coeur, Missouri.
CITY COUNCIL OR COUNCIL
The Governing Body of the City.
CITY FACILITIES
Any facilities, street light poles, lighting fixtures or other structures or equipment located within the rights-of-way and owned by the City.
DIRECTOR
The City's Public Works Director or such other person designated by the City Administrator to administer and enforce this Code.
EMERGENCY RIGHTS-OF-WAY (OR "ROW") WORK
Includes, but is not limited to, ROW work made necessary by exigent circumstances to repair, control, stabilize, rectify or correct the following:
1. 
An unexpected or unplanned outage, cut, rupture, leak or any other failure of facilities that prevents or significantly jeopardizes the ability of a ROW user to provide service to customers;
2. 
An unexpected or unplanned outage, cut, rupture, leak or any other failure of facilities that results or could result in danger to the public or a material delay or hindrance to the provision of service to the public if the outage, cut, rupture, leak or other such failure is not immediately repaired, controlled, stabilized, rectified or corrected; or
3. 
Any occurrence involving facilities that a reasonable person would conclude under the circumstances that immediate action was necessary and warranted.
FACILITIES
A network or system or any part thereof used for providing or delivering a service and consisting of one (1) or more lines, pipes, irrigation systems, wires, cables, fibers, conduit facilities, poles, vaults, pedestals, boxes, appliances, antennas, transmitters, towers, gates, meters, appurtenances or other equipment.
GOVERNMENTAL ENTITY
Any County, township, City, Town, Village, school district, library district, road district, drainage or levee district, sewer district, water district, fire district or other municipal corporation, quasi-municipal corporation or political subdivision of the State of Missouri or any other State, any agency or instrumentality of the State of Missouri or any other State or the United States and any cooperative district allowed by law acting in a governmental rather than a proprietary capacity.
LINEAR FOOT FEE
A compensation fee approved by the City Council and established in the City's pertinent schedule of fees from time to time for the rent of a portion of the rights-of-way by a person having facilities within the rights-of-way. The linear foot fee shall be calculated on the length, in linear feet, of the rights-of-way in or on which facilities are located and shall not include any antenna fee, but a ROW user may be subject to both a linear foot fee and an antenna fee.
PERSON
An individual, partnership, limited liability corporation or partnership, association, joint stock company, trust, organization, corporation or other entity or any lawful successor thereto or transferee thereof.
PERSON(S) HAVING FACILITIES WITHIN THE RIGHTS-OF-WAY
Any person having ownership or control of facilities located within the rights-of-way.
RIGHTS-OF-WAY OR ROW
Unless otherwise restricted herein, the surface, the air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway, waterway, public easement or sidewalk in which the City now or hereafter holds any property interest which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining facilities. "Rights-of-way" shall not include:
1. 
The City's proprietary property, such as City-owned or -operated buildings, parks, street lights or other similar property,
2. 
Airwaves used for cellular, non-wire telecommunications or broadcast services,
3. 
Easements obtained by ROW users,
4. 
Railroad rights-of-way or ground used or acquired for railroads, or
5. 
Facilities owned and used by the City for the transmission of one (1) or more services.
No reference herein to "rights-of-way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for the purpose of providing service.
RIGHTS-OF-WAY (OR "ROW") PERMIT
A permit granted by the City to a ROW user for ROW work.
RIGHTS-OF-WAY (OR "ROW") USER
A person having facilities within the ROW. A ROW user shall not include ordinary vehicular or pedestrian use.
RIGHTS-OF-WAY (OR "ROW") WORK
Action by a ROW user to (i) install, change, replace, relocate, remove, maintain or repair facilities within the rights-of-way, or (ii) to conduct work of any kind within or adjacent to the rights-of-way that results in an excavation, obstruction, disruption, damage or physical invasion or impact of any kind to the rights-of-way or the use thereof. The routine inspection of facilities shall not be considered ROW work unless the inspection requires the conduct of any of the activities or actions noted herein.
SERVICE
Providing or delivering an economic good or an article of commerce, including, but not limited to, gas, telephone, cable television, Internet, open video systems, video services, alarm systems, steam, electricity, water, telegraph, data transmission, petroleum pipelines, sanitary or stormwater sewerage or any similar or related service, to one (1) or more persons located within or outside of the City by use of facilities located within the rights-of-way.
WIRELESS TRANSMISSION PROVIDER
A person having facilities within the rights-of-way, which such facilities consist primarily of antennas, transmitters, towers or other appliances or equipment used to deliver a cellular, broadcast, data transmission or other non-wire communications service through the airwaves above the rights-of-way and which attach to either pre-existing or subsequently approved facilities.
WITHIN
In, along, under, over or across rights-of-way.
[R.O. 2008 §24-21; Ord. No. 4053 §1(Exh. A), 12-11-2006]
A. 
Registration Required.
1. 
Any person desiring to become a person having facilities within the ROW and any person having facilities within the ROW must register with the City.
2. 
Any person having or applying for a cable franchise from the City under the Cable Communications Regulatory Code or a Video Service Provider Authorization from the Missouri Public Service Commission must register hereunder. To the extent that any term of such person's cable franchise or video service authority conflicts with the Rights-of-Way Usage Code, the terms of the cable franchise or video service authority shall prevail. To the extent that the Cable Communications Regulatory Code conflicts with the Rights-of-Way Usage Code, the more stringent shall prevail.
[Ord. No. 5381 §9, 7-14-2014]
3. 
Any person that provides or intends to provide video programming by means of an open video system pursuant to certification approved by the Federal Communications Commission must register hereunder but shall also remain subject to the applicable provisions of the Cable Communications Regulatory Code. To the extent that the Cable Communications Regulatory Code conflicts with the Rights-of-Way Usage Code, the more stringent shall prevail.
4. 
As of the effective date of this Code, any person having facilities within the ROW pursuant to a duly-issued, lawful and applicable license or franchise shall register hereunder. Such person maintains all rights, privileges and obligations established by its license or franchise. To the extent that any terms of such person's license or franchise conflicts with the Rights-of-Way Usage Code, the terms of the license or franchise shall prevail.
B. 
Effectiveness Of Registration. Registration hereunder by an eligible person shall remain effective for so long as that person remains eligible, unless terminated by the person or the City hereunder. Any registration of an ineligible person shall be void from the date of ineligibility.
C. 
Registration Characteristics.
1. 
A valid registration hereunder authorizes the issuance of ROW permits to the registered person in accordance with this Code. It does not expressly or implicitly authorize ROW work without an ROW permit or work on private property without owner consent through eminent domain or otherwise (except for use of compatible easements pursuant to Federal law) or to use publicly or privately owned facilities without a separate agreement with the owners.
2. 
A valid registration hereunder shall not eliminate the need to obtain any franchise, license or permit for the privilege of transacting and carrying on a business within the City as may be generally required by the ordinances and laws of the City other than this code or for attaching devices to poles or other structures, whether owned by the City or other person.
3. 
A valid registration grants no exclusive or vested rights to occupancy within the rights-of-way other than those granted by this code or the administration thereof.
4. 
The right to obtain ROW permits shall be subordinate to any prior lawful occupancy of the rights-of-way and the City reserves the right to designate where facilities are to be placed within the rights-of-way as provided herein to the extent allowed by law.
D. 
Registered Person Subject To Other Laws.
1. 
A person required to register shall at all times be subject to and shall comply with all applicable Federal, State and local laws and shall at all times be subject to all lawful exercise of the Police power of the City including, but not limited to, all powers regarding planning, zoning, supervision of construction, assurance of equal employment opportunities, control of rights-of-way and consumer protection.
2. 
Registration hereunder shall not deprive any person of any rights or obligations imposed by any previously existing franchise, license or contract, nor shall it impose any obligations on any such person in addition to those included in any previously existing franchise, license or contract, except to the extent allowed by law.
3. 
Nothing in this code shall be construed to prohibit the grant or renewal of any franchise by the City as may be allowed or required by State or Federal law.
4. 
Nothing in this code shall be construed or deemed to supersede any applicable State or Federal law or any applicable regulation issued by a State or Federal agency including, but not limited to, the Missouri Public Service Commission and the Federal Communications Commission. In the event of any conflict between such laws or regulations and this code, the applicable State or Federal law or regulation shall apply.
E. 
Failure To Register. Any person who has not registered within ninety (90) days of the effective date of this code shall nonetheless be subject to all requirements of this code including, but not limited to, its provisions regarding ROW permits, construction and technical standards and fees, except as otherwise provided herein. In its discretion and to the extent allowed by law, the City at any time may:
1. 
Require such person to register within thirty (30) days of receipt of a written notice to such person from the City that registration is required;
2. 
Require such person to remove its facilities from the rights-of-way and restore the affected area to a condition satisfactory to the City within a specific time period;
3. 
Direct municipal personnel to remove the facilities from the rights-of-way and restore the affected area to a condition satisfactory to the City and charge the person the costs thereof, including by placing a lien on the person's property as provided in connection with abating nuisances; or
4. 
Take any other action it is entitled to take under applicable law.
Additionally, such person may also be subject to the imposition of penalties as provided herein.
F. 
Registration Exemption. Governmental entities having facilities within the ROW need not register hereunder, but such entities shall be subject to Sections 515.060 and 515.070 of this code and such other Sections or provisions as may be appropriate to their presence in the ROW.
[R.O. 2008 §24-22; Ord. No. 4053 §1(Exh. A), 12-11-2006]
A. 
Requirements And Processing.
1. 
Registration shall be accomplished in the form of a letter to the City filed with the Director.
2. 
To be valid, the registration letter must be signed by an authorized representative of the registering person, contain all required information and be accompanied by a filing fee established in the City's pertinent schedule of fees.
3. 
At any time the Director determines a registration letter does not comply with this code, the Director may return it to a point of contact identified therein with a written explanation of the reason(s) for such return. Filing fees shall not be refunded. Failure to return a registration letter shall not validate an incomplete or otherwise invalid or void registration letter.
B. 
Contents Of Registration Letter. A registration letter shall contain or be accompanied by the information required herein. All such information received by the City shall be public, unless confidentiality is requested and permitted by the Missouri Open Meetings Law and other applicable State and Federal law. The information required shall include:
1. 
Name, address and legal status of the registering person;
2. 
Name, title, address, telephone number, e-mail address and fax number of individual(s) authorized to serve as the point of contact between the City and the registering person so as to make contact possible at any time (i.e., twenty-four (24) hours per day, seven (7) days per week);
3. 
Description of the general uses made or to be made of the facilities located within the rights-of-way by the registering person, e.g., provision of service(s), transfer or lease of facilities (or portion thereof, including bandwidth) to another person, use of the facilities to transverse the City, construction of facilities to be used at a later date, etc.;
4. 
Description of all services provided or to be provided by the registering person to any person located in the City through facilities located within the rights-of-way and an explanation of the registering person's legal qualifications to provide such services, including copies of supporting documentation such as relevant certificates or orders from the Federal Communications Commission, Missouri Secretary of State and/or Missouri Public Service Commission or pertinent rules or Statutes;
5. 
Name and address of any and all other persons providing service(s) to any person located in the City through the registering person's facilities located within the rights-of-way and a general description of such service(s); and
6. 
Current certificates of insurance in accordance with this code.
C. 
Notice Of Change. Within thirty (30) days of any changes in the information set forth in or accompanying its registration letter, a registered person shall notify the City of any such change. Such notices shall be submitted and processed in the same manner as an initial registration, except the filing fee shall not be required.
D. 
Registration Index. The Director shall maintain an index of all registered persons and their point(s) of contact.
E. 
Termination Of Registration.
[Ord. No. 5381 §10, 7-14-2014]
1. 
The City shall have the right to terminate a registration for a substantial and ongoing failure to comply with this Code or other applicable law or for defrauding or attempting to defraud the City. To invoke the provisions of this Section, the Director shall give the person written notice of such intent. If within thirty (30) calendar days following such written notice from the City, the person has not completed corrective action or corrective action is not being actively and expeditiously pursued to the satisfaction of the Director, the Director may commence a proceeding to consider terminating the person's registration, giving written notice of the reasons therefor.
2. 
Prior to terminating a registration, the Director shall hold a hearing, after giving at least ten (10) calendar days' notice to the person, at which time the person shall be given an opportunity to be heard. Following the hearing, the Director may determine whether to terminate the registration based on the information presented at the hearing and other information of record. If the Director determines to terminate a registration, the decision shall be in writing setting forth the reasons therefor. The Director may make such decision conditional on a person's failure to resolve outstanding problems or take appropriate steps to resolve such problems within a specific period of time. A copy of such decision shall be provided to the person.
3. 
Once a registration has been terminated by the Director, the person may not register again except upon express written approval by the City Administrator, which approval shall be withheld absent clear and convincing evidence that the person has remedied all previous violations and is in full compliance with all laws and will not in the future violate this code or defraud the City.
4. 
Registration of a public utility that has been legally granted access to the right-of-way shall not be terminated.
[R.O. 2008 §24-23; Ord. No. 4053 §1(Exh. A), 12-11-2006; Ord. No. 5000 §§1B, 1C, 9-6-2007; Ord. No. 5381 § 11, 7-14-2014; Ord. No. 5495 § 1, 9-12-2016]
A. 
ROW Permit 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 Director may design and issue general permits for emergency ROW work for several different locations or throughout the City.
2. 
No person having facilities within the ROW who has failed to register with the City shall be granted a ROW permit, except as otherwise provided or allowed by ordinance, franchise, license or written contract with the City.
3. 
All applications for ROW permits shall be submitted to the Director. The Director may design and make available standard forms for such applications, requiring such information as allowed by law and as the Director determines in his or her discretion to be necessary and consistent with the provisions of this Code and to accomplish the purposes of this Code. Each application shall at minimum contain the following information for the proposed ROW work, unless otherwise waived by the Director:
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 of the person on whose behalf the proposed work is to be performed;
c. 
A description of the proposed work, including a conceptual master plan and, when applicable, an engineering site plan or other technical drawing showing the nature, dimensions and location 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;
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 Director with reasonable advance notice of such dates once they are determined;
e. 
If the applicant is, or is acting on behalf of, a person having facilities within the ROW or a person desiring to become a person having facilities within the ROW, verification that the applicant or such person has registered with the City and that the information included in that registration is accurate as of the date of the application; and
f. 
Copies of any required certificates of insurance or performance and maintenance bonds.
4. 
The information required by the application may be submitted in the form maintained by the applicant, provided it is responsive to these 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.
5. 
Each such application shall be accompanied by the following payments:
a. 
An application fee, as approved by the City Council and established in the City's pertinent schedule of fees, to cover the cost of processing the application;
b. 
Any other amounts otherwise due to the City from the applicant, including, but not limited to, prior delinquent permit fees and costs, delinquent rental fees and any loss, damage or expense suffered by the City because of the applicant's prior excavations of the rights-of-way or for any emergency actions taken by the City, but the Director may modify this requirement to the extent the Director determines any such fees to be in good-faith dispute.
B. 
ROW Permit Application Review And Determination.
1. 
Except for wireless communications facilities (which are subject to different periods of review)[1], the Director 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 of a completed application. If the Director fails to act on an application for a ROW permit within thirty-one (31) days, the application shall be deemed approved. Unless the application is denied pursuant to Subsection (B)(7) hereof, the Director shall issue a ROW permit upon determining that the applicant:
[Ord. No. 5620, 12-10-2018]
a. 
Has submitted all necessary information;
b. 
Has paid the appropriate fees; and
c. 
Is in full compliance with this Code and all other City ordinances.
In order to avoid excessive processing and accounting costs to either the City or the applicant, the Director shall have authority to establish procedures for bulk processing of applications and periodic payment of fees.
[1]
Generally: 45 days for collocation or replacement of wireless facilities or non-substantial modifications of existing facilities, 60 days for small wireless facilities on new poles, and 120 days for other (not small) wireless facilities on new poles or substantial modifications of such existing facilities. See Sections 67.5090, et seq., and 67.5110, et seq., RSMo., and 47 CFR 1.40001 and 1.6003. See also City Code Section 515.130 (small cell wireless).
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 Code. When reasonable and necessary to accomplish such purposes, the Director 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 increase expenses by more than ten percent (10%) of the applicant's costs for the work as proposed;
b. 
Shall not result in a decline of service quality; and
c. 
Shall be competitively neutral and non-discriminatory.
The Director shall justify to the applicant that the required alternative is reasonable and necessary.
3. 
Upon receipt of an application, the Director 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 Director 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 Director'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 Director shall promptly grant the ROW permit.
b. 
If the Director determines that the effect on the rights-of-way will be more than minor in nature and no exemption under the above Section 515.060(B)(3)(a) or any other provision of this Code applies, the Director shall schedule and coordinate the work and grant the ROW permit accordingly. When reasonable and necessary to accomplish the purposes of this Code, the Director 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. The Director shall not impose any coordination or scheduling requirements that prevent or unreasonably delay an applicant's access to the ROW or that create a barrier to entry.
c. 
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 Director. 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 ROW users and the City for the best, most efficient, least intrusive, most aesthetic and least obtrusive use of the rights-of-way.
d. 
The Director shall 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 Director shall also maintain indexes of all ROW permits issued, both by the ROW user and by the affected rights-of-way.
4. 
In addition to the foregoing and in addition to any other standards or requirements imposed by this Code with regard to an application filed by a wireless transmission provider, the Director shall ensure compliance with the following provisions:
a. 
The design, location and nature of all facilities shall be subject to the review and approval of the Director as provided herein. Such review shall be non-discriminatory and competitively neutral, and approvals shall not be unreasonably withheld.
b. 
The Director 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:
(1) 
Ornamental or similar specially designed street lights;
(2) 
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;
(3) 
Facilities, equipment, structures or locations that in the reasonable judgment of the Director are incompatible with the proposed facilities or would be rendered unsafe or unstable by the installation; and
(4) 
Facilities, equipment, structure or location 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.
c. 
If the application of this Subsection excludes locations for facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director shall cooperate in good faith with the application to attempt to find suitable alternatives, but such alternatives may exceed the cost increase limitation established by Subsection (B)(2) and the City shall not be required to incur any financial cost or to acquire new locations for the application.
d. 
The grant of a ROW permit shall not eliminate the need of a wireless transmission provider to have obtained a license, permit or other agreement for attaching facilities to other facilities, poles or other structures, whether owned by the City or other person.
e. 
Nothing in this Code shall be construed to require that the City grant wireless transmission providers access to any City facilities or the City's proprietary property, but the City may enter into separate agreements with wireless transmission providers to allow such access. Such agreements may include the payment of reasonable attachment fees for use of City facilities or other City property. All such agreements shall be non-discriminatory and competitively neutral among wireless transmission providers.
5. 
Each ROW permit shall include:
a. 
Projected commencement and termination dates or, if such dates are unknown at the time the ROW permit is issued, a provision requiring the ROW user to provide the Director with reasonable advance notice of such dates once they are determined;
b. 
Length of affected rights-of-way, number of road crossings and identification and description of any pavement or curb cuts included in the work;
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 Code; and
f. 
Such conditions and requirements as are deemed reasonably necessary by the Director:
(1) 
To protect structures and other facilities in the rights-of-way from damage;
(2) 
For the proper restoration of such rights-of-way, structures and facilities;
(3) 
For the protection of the public and the continuity of pedestrian and vehicular traffic; and
(4) 
For the protection of the public health, safety and welfare.
6. 
An applicant receiving a ROW permit shall promptly notify the Director of any material changes in the information submitted in the application. The Director may issue a revised ROW permit or require that the ROW user reapply for a ROW permit in accordance with all requirements of this Code.
7. 
ROW permits inure to the benefit of the applicant, and the rights granted thereunder may not be assigned or transferred to any other person without the written consent of the Director.
8. 
The Director 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;
b. 
Failure to provide information required by the application or this Code;
c. 
The applicant being in violation of the provisions of this Code or other pertinent and applicable City ordinances;
d. 
Failure to return the ROW to its previous condition under previously issued ROW permits or after prior excavations by the applicant;
e. 
The area is environmentally sensitive as defined by State Statute or Federal law or is a historic district as defined by local ordinance;
f. 
For an applicant's refusal to comply with alternative ROW work methods or locations required by the Director pursuant to this Code; 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, such denial does not interfere with a ROW user's right of eminent domain of private property, and 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 Section 405.470 Conditional Uses, subsection A.6 - Communications towers - of the City Code of Ordinances 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 Section 405.690 Utility Facilities of the City Code of Ordinances as applicable to the zoning district in which the facilities would be located.
9. 
For the purposes of Subsection (B)(7), the term "applicant" shall also include, when applicable, the person on whose behalf the applicant is to perform the ROW work. The Director may consider good-faith disputes with, or circumstances beyond the control of, the applicant or such person in determining whether to grant or deny the application.
C. 
ROW Permit Revocation And Code Violation Prosecution.
1. 
The Director 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 ROW permit. Prior to revocation the Director 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 Director 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;
b. 
An evasion or attempt to evade any material provision of the ROW permit 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 Director, work that does not conform to applicable national safety codes, industry construction standards or the City's pertinent and applicable ordinances, including, but not limited to, this Code, provided that City standards are no more stringent than those of a national safety code.
2. 
Any breach of the terms and conditions of a ROW permit shall also be deemed a violation of this Code, and in lieu of revocation the Director may initiate prosecution of the ROW user for such violation as provided in Section 515.100(H) hereof.
[R.O. 2008 §24-24; Ord. No. 4053 §1(Exh. A), 12-11-2006; Ord. No. 5000 §1D, 9-6-2007]
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.
2. 
The Director shall have full access to all portions of the ROW work and may issue stop work orders and corrective orders to prevent unauthorized work, including work not meeting the standards established in Subsection (F). Such orders:
a. 
May be delivered personally or by certified mail to the address listed on the application for the ROW permit, the person in charge of the construction site at the time of delivery or the registered person's point of contact;
b. 
Shall state that work not authorized by the ROW permit is being carried out, summarize the unauthorized work and provide a period of not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety; and
c. 
May be enforced by equitable action in the Circuit Court of St. Louis County, Missouri, and in such case the person involved in the work shall be liable for all costs and expenses incurred by the City in enforcing such orders, including reasonable attorney's fees in addition to any and all penalties established in this code.
B. 
Installation Of 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 pre-empted. Such permission may be granted through a ROW permit when other similar facilities exist above ground or when physical conditions are such that underground construction is impossible, impractical or economically unfeasible, as determined by the City, and when in the City's judgment the above ground 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 to all persons registered hereunder reasonable written advance notice of the particular date on which open trenching will be available for installation of facilities. Costs of trenching and easements required to bring facilities within the development shall be borne by the developer or property owner; except that if the facilities are not installed within five (5) working days of the date the trenches are available as designated in the notice given by the developer or property owner, then once the trenches are thereafter closed, the cost of new trenching shall be borne by the person installing the facilities.
C. 
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, relay 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 owner of the construction equipment or facilities prior to taking such action, but the inability to do so shall not prevent same. Thereafter, the City shall notify the owner of the construction equipment or facilities as soon as practicable.
2. 
Should the grades or boundaries of the rights-of-way be changed at any time, a ROW user shall, if necessary, at its own cost and expense, relocate or change its facilities so as to conform to the new grades or boundaries. This requirement shall not apply when the ROW user holds a valid easement that existed prior to the date when the area in question became rights-of-way. The ROW user shall bear the burden of establishing to the City's satisfaction the fact of the pre-existing easement.
3. 
At the City's direction, all facilities shall be moved underground and the cost shall be solely the obligation of the owners (or as otherwise allowed or required by law).
4. 
Any ROW user shall, on the request of the City or any person authorized by the City, temporarily relocate facilities to permit the moving of buildings or oversized vehicles.
5. 
Any ROW user shall, within a reasonable time specified by the City, protect, support, disconnect, relocate or remove, at its own expense, construction equipment or discrete portions of its facilities when required by the City by reason of traffic conditions; public safety; rights-of-way construction, maintenance or repair (including resurfacing or widening); change of rights-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks or any type of government-owned communications system, public work or improvement or any government-owned utility; rights-of-way vacation; or for any other purpose where the convenience of the City would be reasonably served thereby.
6. 
If any action under Subsections (C)(4) or (5) is reasonably required of a ROW user to accommodate a person or another ROW user, the ROW user shall, after reasonable advance written notice, take action to effect the necessary actions requested and the actual cost, reasonably incurred, of such actions shall be paid by the person or ROW user upon whose behalf the action is requested. The ROW user taking such action shall have the authority to require such payment in advance.
7. 
Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (E) hereof.
8. 
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.
D. 
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 the damaged property. Such repair or replacement shall be completed within a reasonable time specified by the Director and to the Director's satisfaction.
2. 
Any alteration to the existing water mains, sewerage 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.
E. 
Removal, Abandonment And Transfer Of Facilities.
1. 
If a registration is terminated, the City may require that the person having facilities within the ROW remove its facilities from the rights-of-way at the person's expense. In removing its facilities the person shall obtain a ROW permit and restore any excavation that shall be made by it as required by this code. The liability, indemnity, insurance and bonding requirements as provided 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 this paragraph and the requirements of this code.
2. 
If the person having facilities within the ROW fails to remove the facilities and restore the ROW within a reasonable period of time, the City may, to the extent permitted by law, have the removal done at the person's expense.
a. 
Alternatively, the City may permit the abandonment, without removal, of any facilities if the Director determines that abandonment will not result in interference with the use or maintenance of the rights-of-way or if ownership of the facilities is transferred as provided herein.
b. 
The City may decide that the ownership of the facilities shall revert to the City or to such person as directed by the City. In either case the owner of the facilities, if required by the City and permitted by law, shall submit a written instrument, satisfactory in form to 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 reverting to the City.
3. 
If a person having facilities within the ROW:
a. 
Has installed the facilities without complying with the requirements of this code, or
b. 
Abandons such facilities under applicable law, the City may deem the facilities abandoned. If such abandonment occurs, the City may require the removal of the facilities, remove the facilities at the expense of the person having facilities within the ROW, allow the abandonment of the facilities without removal or require the transfer of the facilities, all as provided in this Subsection.
4. 
The City shall not remove any facilities unless the existence of such facilities prevents or significantly impairs the use, repair, excavation or construction of the ROW. The City shall not remove or seek to possess or transfer the facilities until thirty (30) days have passed following written notice to the person having facilities within the ROW of the City's intent to so act. The City may choose not to act on good cause shown by the person having facilities within the ROW.
F. 
Standards For ROW Work.
1. 
Except for emergency ROW work as provided in Section 515.060(A)(1), ROW work shall be performed only upon issuance and in accordance with the requirements of a ROW permit. At all times during the work, ROW permits shall be conspicuously displayed at the work site and shall be available for inspection by the Director.
2. 
If at any time it appears that the duration or scope of the ROW work shall differ from that allowed by the ROW permit, the ROW user shall inform the Director. The Director may issue a waiver, an extension or a revised ROW permit or require that the ROW user reapply for an ROW permit in accordance with all requirements of this code.
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 to the area surrounding the work as determined by the Director.
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 Director. Unless otherwise provided by the Director 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 codes and laws and accepted industry practices, all as hereafter may be amended or adopted. In the event of a conflict among codes and standards, the most stringent code or standard shall apply (except insofar as that code 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, 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.
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-ways 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 code. 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. 
It shall be the duty of any person making an excavation in the ROW to properly backfill such excavations and properly restore the surface to its proper condition. In the event the excavations are made in the improved portion of the ROW, twelve (12) inches of granular backfill will be placed over an exposed utility and controlled low strength material (CLSM) 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 twenty-eight (28) day minimum strength, four thousand five hundred (4,500) psi concrete mix.
In the event the excavations in the ROW are made in the improved portion of an asphalt or combination street, twelve (12) inches of granular backfill will be placed over an exposed utility and controlled low strength material (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 (6) inch thick, twenty-eight (28) day minimum strength, four thousand five hundred (4,500) psi concrete mix under a three (3) inch asphalt concrete lift of Type C mix to meet existing grades.
Construction of asphalt driveway entrances in residential ROW will be constructed of six (6) inches of compacted rock base and three (3) inches of Type C asphalt concrete mix. Construction of asphalt driveway entrances in commercial ROW will be constructed of four (4) inches of compacted rock base, seven and one-half (7.5) inches of Type X and three (3) inches of Type C asphalt concrete mix. Concrete driveway approaches will consist of a four (4) inch compacted rock base and be a minimum of six (6) inches thick in residential ROW and eight (8) inches thick in commercial ROW.
Street crossings will be bored at the direction of the Director.
14. 
Above ground 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 sight-proof landscape screen may be required for any authorized above ground 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 Director 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 Director to the extent it meets or exceeds the purposes of these requirements.
15. 
Above ground 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.
16. 
If the application of this Subsection excludes locations for above ground facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director 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 515.060(B)(2) and the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
G. 
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, in accordance with the standards of Subsection (F) and the reasonable conditions of the Director. Restoration of the ROW shall be completed within the dates specified in the ROW permit unless the Director issues a waiver, extension or a new or revised ROW permit.
2. 
If an ROW user fails to restore the ROW within the date specified either by the ROW permit or any extension thereof as granted by the Director, the City may perform its own restoration. The City may also opt to perform its own restoration regardless of any failure by the 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 restoration, the ROW user shall be responsible for reimbursing the City's reasonable actual restoration costs within thirty (30) days of invoice.
3. 
Every ROW user to whom a ROW permit has been granted shall guarantee for a period of four (4) years the restoration of the ROW in the area where the ROW user conducted excavation and performed the restoration. During this period the ROW user shall, upon notification from the Director, correct all restoration work to the extent necessary as required by the Director. Said work shall be completed within a reasonable time, not to exceed thirty (30) calendar days from receipt of the Director's notice unless otherwise permitted by the Director. If a 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 Director may extend the cure period on good cause shown.
4. 
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 a performance bond pursuant to Subsection (I).
H. 
Mapping Requirements. 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 Director, 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 Director in the form maintained by the ROW user, but when available to the ROW user, shall be submitted in automated formats compatible with City systems, as determined by the Director, or in hard copy otherwise.
I. 
Performance And Maintenance Bonds.
1. 
Prior to any ROW work a ROW user shall establish in the City's favor a performance and maintenance bond in an amount to be determined by the Director to ensure the restoration of the rights-of-way. The bond shall continue in full force and effect for a period of twenty-four (24) months following completion of the work. The Director shall have the authority to extend the maintenance bond period for up to an additional twenty-four (24) months in the same manner as provided in Subsection (G)(2). The Director may waive this requirement when the work involves no disruption or damage or only minor disruption or damage to the rights-of-way. The Director shall waive this requirement when the ROW user has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance with the ordinances of the City.
2. 
In the event a ROW user fails to complete the ROW work in a safe, timely and competent manner or if the completed restorative work fails within the time period for the bond (as determined by the Director), 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 Director and upon lapse of the bond period, including any extension by the Director, 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 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 Director 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).
J. 
Miscellaneous.
1. 
Upon failure of a ROW user to commence, pursue or complete any ROW work required by law or by the provisions of this code 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.
2. 
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.
3. 
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.
4. 
Nothing in this code 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.
[R.O. 2008 §24-25; Ord. No. 4053 §1(Exh. A), 12-11-2006]
A. 
Persons subject to rental fees as provided herein shall maintain sufficient records to document accurate payment of such rental fees including, but not limited to, such plans, records or maps showing the approximate location and length of all facilities located within the rights-of-way.
B. 
The City shall have the right to inspect at a location in the metropolitan St. Louis area all records that are reasonably necessary to monitor compliance with the terms of this code. A person having facilities within the ROW shall be responsible for collecting and producing such information and by registering affirms that it will do so.
C. 
The Director may require provision or retention of additional information, records and documents from time to time as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City in connection with this code.
D. 
All records and information referenced herein shall be subject to inspection and copying by the City, at no cost to the City, to ensure code compliance. All records and information received by the City shall be public except to the extent confidentiality is requested and permitted by the Missouri Open Meetings Law and other applicable State and Federal laws. If any records cannot be copied for security or other reasons, the person having facilities within the ROW shall nonetheless make such records available for City inspection and shall reimburse the City for all reasonable costs incurred by the City in inspecting those records.
E. 
If any records are voluminous, then the person may request that the inspection take place at some other location outside the metropolitan St. Louis area, provided that such person must pay all reasonable travel expenses incurred by the City in inspecting those records.
[R.O. 2008 §24-26; Ord. No. 4053 §1(Exh. A), 12-11-2006; Ord. No. 5599, 8-13-2018]
A. 
Finding And Intent. The City finds that rights-of-way are valuable public property acquired and maintained at great expense to taxpayers. The City further finds that the grant of permission to locate facilities within the rights-of-way is a valuable property right and eliminates the need to invest substantial capital in the private location of such facilities. Any person that places facilities within the rights-of-way after the effective date of this code (Ord. 4053, 12-26-2006) and any person that leaves existing facilities within the rights-of-way more than ninety (90) days after the effective date of this code shall be deemed to have agreed to pay compensation for such use of the rights-of-way as established herein. It is the intent of this Section that the rental fees provided for herein be applied to and be paid by only those persons having facilities within the rights-of-way. This Section codifies the City's long-established policy of imposing fees on right-of-way users.
B. 
Payment To City. Any person having facilities within the ROW shall pay to the City annual rent consisting of, depending on the facility, linear foot fees and antenna fees for the use of the affected rights-of-way for the applicable facilities, provided, however, effective as of August 28, 2021, a telecommunications company, including one engaged in providing fiber networks, shall not be required to pay a linear foot fee but in lieu thereof shall pay to the City a rental fee of five percent (5%) of gross telecommunications service revenue derived from its operations within the ROW.
[Ord. No. 5747, 8-23-2021]
C. 
Not A Tax Or In Lieu Of Any Other Tax Or Fee — Exemption Due To Payment Of Business License Taxes Or Gross Receipts Taxes.
1. 
The rental fees are not a tax, license or fee subject to any requirement of voter approval, but rather constitute a charge for special and individualized use of public property.
2. 
Rental fees are in addition to all other fees and all taxes and payments that a person may be required to pay under any Federal, State or local law, including any applicable property and amusement taxes.
3. 
As provided by Section 67.1846, RSMo., no person shall be obligated to pay rental fees if such person pays to the City gross receipts taxes, business license fees, or business license taxes that are more than nominal and that are imposed specifically on communications-related revenues, services or equipment. Further, no wireless provider shall be obligated to pay any antenna fee hereunder.
D. 
Payments.
1. 
The rental fees shall be paid quarterly to the City and shall commence as of the later of the effective date of this code or the first (1st) day on which a person having facilities within the ROW places facilities within the rights-of-way. The City shall be furnished at the time of each payment with a statement certified by the payer's chief financial officer or comparable officer or by an independent certified public accountant reflecting the calculation of the total amount of rental compensation for the payment period. Payments shall be made to the City no later than forty-five (45) days following the end of each calendar quarter.
2. 
In the event any rental fee or other payment due hereunder is not made on or before the date specified herein, interest charges shall also be due, computed from such due date, at an annual rate equal to the commercial prime interest rate of the City's primary depository bank during the period such unpaid amount is owed plus a penalty of two percent (2%) of the amount.
E. 
No Accord Or Satisfaction. No acceptance of any payment by the City shall be construed as a release or an accord and satisfaction of any claim the City may have for further or additional sums payable as rental fees under this code or for the performance of any other obligation.
F. 
Audit. The City shall have the right to inspect all reasonably necessary records and the right to audit and to recalculate any amounts determined to be payable under this code. Persons subject to rental fees hereunder shall be responsible for providing the records to the City at an office located within the metropolitan St. Louis area except as provided in Section 515.080(E). Such records shall be maintained for at least five (5) years. The City's audit expenses shall be borne by the person audited if the rental fees paid during the audit period are less than ninety-five percent (95%) of the amount owed according to the audit. Any additional amounts due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the person by the City of the underpayment, which notice shall include a copy of the audit report. If recalculation results in an additional amount to be paid to the City, such amount shall be subject to interest and penalties as specified in Subsection (D)(2) above.
G. 
Exemption From Rental Fees.
1. 
Persons having facilities within the ROW pursuant to a duly-issued, lawful and applicable license or franchise shall be exempt from this Section for the duration of such license or franchise, provided they continue to pay on a timely basis all fees due under such license and franchise.
2. 
Governmental entities having facilities within the ROW shall not be liable for rental fees.
[R.O. 2008 §24-27; Ord. No. 4053 §1(Exh. A), 12-11-2006; Ord. No. 5000 §1E, 9-6-2007]
A. 
Insurance Required. 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:
1. 
Two million dollars ($2,000,000.00) for property damage resulting from any one (1) accident;
2. 
Five million dollars ($5,000,000.00) for personal bodily injury or death resulting from any one (1) accident; and
3. 
Two million dollars ($2,000,000.00) for all other types of liability.
These insurance requirements shall not be construed to limit the liability of any person or to impose any liability on the City.
B. 
Qualifications Of Sureties. All insurance policies shall be with sureties qualified to do business in the State 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.
C. 
Policies Available For Review. All insurance policies shall be available 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.
D. 
Additional Insureds — Prior Notice Of Policy Cancellation. 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 City Clerk. A ROW user shall not cancel any required insurance policy without submission of proof that it has obtained alternative insurance that complies with this code.
E. 
Exemption From Insurance Requirements. The Director may exempt in writing from the requirements of Subsections (A) through (D) any self-insured ROW user, provided that the ROW user demonstrates to the Director'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 code. The Director may require a security fund or letter of credit as a condition to a self-insured's exemption. The Director shall waive this requirement when the ROW user has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance with the ordinances of the City.
F. 
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 operation of facilities,
b. 
Failure to secure consents from landowners, or
c. 
Any actions taken or omissions made by the person pursuant to the authority of this code.
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 or 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 code, the City shall not be so indemnified or reimbursed in relation to any amounts:
a. 
Attributable to the City's own negligence, willful misconduct, intentional or criminal acts, or
b. 
Attributable to the City acting in a proprietary capacity to deliver service(s) within the City.
G. 
Relation To Insurance And Indemnity Requirements. 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.
H. 
Penalties. Any person violating any provision of this code shall, upon conviction by the City's Municipal Court, be punished by a fine not to exceed one thousand dollars ($1,000.00) or by imprisonment not to exceed ninety (90) days, or by both such fine and imprisonment. Each day the violation continues may be charged as a separate offense. In addition, where any excavation for which a ROW permit is required by this Chapter is started prior to obtaining said permit, the total permit fee shall be doubled by the Director. Payment of the doubled fee shall not relieve any persons from fully complying with the requirements of this Chapter, nor from the penalties prescribed herein.
[R.O. 2008 §24-28; Ord. No. 4053 §1(Exh. A), 12-11-2006; Ord. No. 5381 §12, 7-14-2014]
A. 
Dispute Resolution By The Director. The Director shall make a final determination as to any matter concerning the grant, denial or revocation of a ROW permit as provided in this Code. On the request of an applicant or a ROW user and within a reasonable period of time, the Director 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 Code; provided however, that this review shall not apply to matters being prosecuted in court pursuant to Section 515.070(A)(2)(c) or Section 515.100(H) hereof. Any final determination of the Director shall be subject to review as provided herein.
B. 
Chapter 536 Review. Any person aggrieved by the final determination of the Director may file a petition for review pursuant to Chapter 536, RSMo., as amended, in the Circuit Court of the County of St. Louis. Such petition shall be filed within thirty (30) days after the Director's final determination.
[R.O. 2008 §24-29; Ord. No. 4053 §1(Exh. A), 12-11-2006]
A. 
Captions. Captions throughout this code are intended solely to facilitate reading and reference to the Sections and provisions. Such captions shall not affect the meaning or interpretation of this code.
B. 
Interpretation Of Code. The provisions of this code shall be liberally construed to promote the public interest. This Article shall be interpreted in accordance with Sections 67.1830, RSMo., et seq., and 47 U.S.C. Section 332.
C. 
Expense. Any act that a person is required to perform by this code or other law shall be done at the person's expense, without City reimbursement, unless expressly provided to the contrary by law.
D. 
Eminent Domain. Nothing herein shall be deemed or construed to impair or affect in any way or to any extent the power of eminent domain held by the City or any other person.
E. 
Exclusive Contracts And Anticompetitive Acts Prohibited.
1. 
Unless otherwise allowed by law, no person shall enter into or enforce an exclusive contract for the provision of services with any other person or demand the exclusive right to serve another person or location as a condition of extending service to that person or location or any other person or location.
2. 
No person shall engage in acts that have the purpose or effect of limiting competition for the provision of services in the City, except for such actions as are expressly authorized by law.
F. 
No Recourse Against The City. Without limiting such immunities as the City or other persons may have under applicable law, no person shall have any recourse whatsoever against the City or its officials, members, boards, commissions, agents or employees for any loss, costs, expense, liability or damage arising out of any action undertaken or not undertaken pursuant to any provision or requirement of this code or because of the enforcement of this code or the City's exercise of its authority pursuant to this code or other applicable law, unless such recourse is expressly authorized by law.
G. 
Rights And Remedies.
1. 
The rights and remedies reserved to the City by this code are cumulative and shall be in addition to and not in derogation of any other rights and remedies which the City may have with respect to the subject matter of this code.
2. 
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this code.
3. 
Specific mention of the materiality of any of the provisions herein is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance hereunder is material and substantial.
4. 
No course of dealing between any person and the City or any delay on the part of the City in exercising any rights hereunder shall operate as a waiver of any such rights of the City or acquiescence in the actions of such person in contravention of such rights except to the extent expressly waived in writing. No person shall be relieved of its obligation to comply with any of the provisions of this code by reason of any failure of the City to enforce prompt compliance nor shall any inaction by the City be deemed to waive a provision or render void any provision of this code.
H. 
Force Majeure. A person shall not be deemed in violation of this code where performance was hindered by war or riots, civil disturbances, floods or other natural catastrophes beyond the person's control and a registration shall not be terminated or a person penalized for such non-compliance, provided that the person takes prompt and diligent steps to bring itself back into compliance and to comply as soon as reasonably possible under the circumstances without unduly endangering the health, safety and integrity of employees or property or the health, safety and integrity of the public, rights-of-way, public property or private property.
I. 
Public Emergency. In the event of a public emergency or disaster as determined by the City, a ROW user immediately shall make facilities, employees and property, as may be reasonably necessary, available for use by the City or other civil defense or governmental agency designated by the City for the term of such emergency or disaster for emergency purposes. In the event of such use, the ROW user shall waive any claim that such use by the City constitutes a use of eminent domain, provided that the City shall return use of the facilities, employees and property to the ROW user promptly after the emergency or disaster has ended.
J. 
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter or payment is required under this code and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the day of the act, event or default after which the designated period of time begins to run and include the last day of the prescribed or fixed period of time, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the next day which is neither a Saturday, Sunday or legal holiday. If the period is less than seven (7) days, intermediate Saturday, Sunday and legal holidays shall be excluded in the computation. This Subsection shall not apply in the context of obligations that continue on a daily basis.
K. 
Severability. If any term, condition, clause, sentence or provision of this code shall to any extent be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the City and shall thereafter be binding.
[Ord. No. 5620, 12-10-2018]
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 515 shall apply to small wireless deployments except to the extent inconsistent with this Section 515.130.
[1]
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 Creve Coeur.
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. Section 522(5); a telecommunications carrier, as defined in 47 U.S.C. Section 153(51); a provider of information service, as defined in 47 U.S.C. Section 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. Section 522(6); telecommunications service, as defined in 47 U.S.C. Section 153(53); an information service, as defined in 47 U.S.C. Section 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. Section 522(5); a provider of information service, as defined in 47 U.S.C. Section 153(24); a telecommunications carrier, as defined in 47 U.S.C. Section 153(51); or a wireless provider.
DECORATIVE POLE
A City pole that is specially designed and placed for aesthetic purposes.
FEE
A one-time, nonrecurring 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:
(a) 
Is not larger in dimension than twenty-four (24) inches in length, fifteen (15) inches in width, and twelve (12) inches in height; and
(b) 
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:
(a) 
Each wireless provider's antenna could fit within an enclosure of no more than six (6) cubic feet in volume; and
(b) 
All other equipment associated with the wireless facility, whether ground or pole-mounted, is cumulatively no more than twenty-eight (28) cubic feet in volume, provided that no single piece of equipment on the utility pole shall exceed nine (9) cubic feet in volume; and no single piece of ground mounted equipment shall exceed fifteen (15) cubic feet in volume, exclusive of equipment required by an electric utility or municipal electric utility to power the small wireless facility.
The following types of associated ancillary equipment shall not be included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs and related conduit for the connection of power and other services.
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:
(a) 
The structure or improvements on, under, or within which the equipment is collocated;
(b) 
Coaxial or fiber-optic cable between wireless support structures or utility poles;
(c) 
Coaxial or fiber-optic cable not directly associated with a particular small wireless facility;
(d) 
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 wifi, 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]
Note: See Section 67.5111, RSMo. See also 47 CFR 1.6002.
C. 
Deployment Of Small Wireless Facilities And Associated Poles In The 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 Chapters 405 and 515. In order to maximize compliance with pre-established requirements for placement of utility facilities underground, to the extent that components of small wireless facilities functionally cannot be placed underground in accordance with such requirements they shall instead be installed in the least conspicuous location as reasonably possible under the circumstances as determined by the Director of Community Development. 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 515 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 Chapters 405 and 515, 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 Community Development.
6. 
Subject to Subsection (D)(3) below, and except for facilities excluded from evaluation for effects on historic properties under 47 CFR Section 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 Community 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]
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 pursuant to Section 515.060 and this Section 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 Subdivision (i) of this Subsection and an attestation that the small wireless facility complies with the volumetric limitations in the definition of Small Wireless Facility set out 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 Subdivision 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 Subdivision (h) of this Subsection 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 Subdivision (3) of Subsection (C) 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. Sections 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. 
An applicant may:
(1) 
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) 
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; notwithstanding the foregoing, the FCC "shot clock" review periods set forth in 47 CFR Section 1.6003 shall not be exceeded regardless of the number of "batched" applications.
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 Subdivision (i) of this Subsection, unless the applicant and the City agree to an extension term of less than ten (10) years. The provisions of this paragraph 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. 
Abandoned small wireless facilities shall be removed as provided in this Chapter 515 or an agreement, as applicable;
o. 
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
p. 
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. 
A permit is not required for:
a. 
Routine maintenance on previously permitted small wireless facilities;
b. 
The replacement of small wireless facilities with small wireless facilities that are the same or smaller in size, weight, and height; or
c. 
The installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between utility poles, in compliance with applicable codes.
For work described in Subdivisions (a) and (b) of this Subsection 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. 
The 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]
Note: See Section 67.5113, RSMo.
E. 
Collocations On City Poles And Wireless Support Structures Outside Of The 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 Subdivision (3) of this Subsection, 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 substantially in the form of Schedule C to this Section.
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]
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]
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 Subdivision (2) of Subsection (D) 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 Subdivision (k) of Subdivision (2) of Subsection (D) 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.
(1) 
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.
(2) 
The City shall not charge a wireless provider any fee, tax other than a tax authorized by the Subdivision 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.
(3) 
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]
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]
Note: See Section 67.5118, RSMo.
I. 
Prior Agreements.[9]
This Section 515.130 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]
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 attorney's 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 515.100. 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 515.070 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 (1) 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 515.130, 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]
Note: See Section 67.5121, RSMo.
K. 
Expiration.[11]
Section 515.130 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]
Note: See Section 67.5122, RSMo.