[Ord. No. 2007-1557 §3A, 11-20-2007]
The following terms shall have the following meanings unless
otherwise defined by context:
Any facilities located within the public rights-of-way and
owned by the City.
The manager or administrator of the City or such other person designated by the City to hear appeals as provided in Section 517.050 hereof.
The City's Public Works Director or such other person designated
to administer and enforce this Chapter.
Includes, but is not limited to, ROW work made necessary
by exigent circumstances to repair, control, stabilize, rectify or
correct an unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility when such failure results or could result
in danger to the public or a material delay or hindrance to the provision
of service.
A network or system or any part thereof used for providing
or delivering a service and consisting of one (1) or more lines, pipes,
wires, cables, fibers, conduit facilities, cabinets, poles, vaults,
pedestals, boxes, appliances, antennas, transmitters, radios, towers,
gates, meters, appurtenances or other equipment.
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.
Any person having ownership or control of facilities located
within the rights-of-way.
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 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:
City facilities or the City's property other than ROW, such
as City-owned or operated buildings, parks or other similar property,
Airwaves used for cellular, non-wire telecommunications or broadcast
services,
Easements obtained by ROW users on private property,
Railroad rights-of-way or ground used or acquired for railroads,
or
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 delivery of service.
A permit granted by the City to a ROW user for ROW work.
A person performing ROW work within the rights-of-way. A
ROW user shall not include ordinary vehicular or pedestrian use.
Action by a ROW user to:
Install, change, replace, relocate, remove, maintain or repair
facilities within the rights-of-way, or
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.
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.
In, along, under, over or across rights-of-way.
[Ord. No. 2007-1557 §3B, 11-20-2007]
A.
Application requirements.
1.
Any person desiring to perform ROW work must first apply for and
obtain a ROW permit in addition to any other building permit, license,
easement, franchise or authorization required by law. In the event
of a need for emergency ROW work, the person conducting the work shall
as soon as practicable notify the City of the location of the work
and shall apply for the required ROW permit as soon as practicable
following the commencement of the work, not to exceed the third (3rd)
business day thereafter. The Director may design and issue general
permits for emergency ROW work for several different locations or
throughout the City.
2.
An application for a ROW permit shall be submitted to the 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 Chapter and to accomplish the
purposes of this Chapter. 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, address and telephone
number 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 an engineering site plan or other technical drawing or depiction
showing the nature, dimensions, location and description of the applicant's
proposed work or facilities, their proximity to other facilities that
may be affected by the proposed work and the number of street crossings
and their locations and dimensions, if applicable;
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.
Copies of any required certificates of insurance or performance and
maintenance bonds.
3.
The information required by the application may be submitted in the
form maintained by the applicant, provided it is responsive to the
application's requirements and the applicant shall be allowed a reasonable
amount of time to complete the application based on the amount of
data or information requested or required.
4.
Each such application shall be accompanied by the following payments:
a.
An application fee approved by the City to cover the cost of processing
the application;
b.
Any other amounts due to the City from the applicant including, but
not limited to, prior delinquent fees, costs and any loss, damage
or expense suffered by the City because of the applicant's prior work
in the rights-of-way or for any emergency actions taken by the City,
but the Director may modify this requirement to the extent the Director
determines any such fees to be in good faith dispute.
5.
Applicants shall participate in any joint planning, construction
and advance notification of such work, including coordination and
consolidation of any excavation of or disturbance to the rights-of-way,
as directed by the 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 other ROW users and the City for the best, most efficient, least
intrusive, most aesthetic and least obtrusive use of the rights-of-way.
6.
The 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.
B.
Application Review And Determination.
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 thereof. Unless the
application is denied, the Director shall issue a ROW permit upon
determining that the applicant:
a.
Has submitted all necessary information,
b.
Has paid the appropriate fees, and
c.
Is in full compliance with this Chapter and all other City ordinances.
The Director may establish procedures for bulk processing of applications
and periodic payment of fees to avoid excessive processing and accounting
costs.
2.
It is the intention of the City that interference with, damage to,
excavation or disruption of or the placement of facilities within
the City's rights-of-way should be minimized and limited in scope
to the extent allowed by law to achieve the purposes of this Chapter.
When reasonable and necessary to accomplish such purposes, the 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 paragraph
(3)(a) or any other provision of this Chapter 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 Chapter,
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.
4.
Each ROW permit issued by the Director shall include:
a.
Projected commencement and termination dates or, if such dates are
unknown at the time the permit is issued, a provision requiring the
ROW user to provide the 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 Chapter; and
f.
Such conditions and requirements as are deemed reasonably necessary
by the Director to protect structures and other facilities in the
rights-of-way from damage, to restore such rights-of-way and any structures
or facilities, to ensure the reasonable continuity and sight lines
of pedestrian and vehicular traffic and to protect property values,
the aesthetics of adjoining properties and neighborhoods and the public
health, safety and welfare.
5.
The 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
Chapter;
c.
The applicant being in violation of the provisions of this Chapter
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.
For reasons of environmental, historic or cultural sensitivity as
defined by applicable Federal, State or local law;
f.
For the applicant's refusal to comply with alternative ROW work methods,
locations or other reasonable conditions required by the Director;
and
g.
For any other reason to protect the public health, safety and welfare,
provided that such denial does not fall within the exclusive authority
of the Missouri Public Service Commission or interfere with a ROW
user's right of eminent domain of private property and, provided further,
that such denial is imposed on a competitively neutral and non-discriminatory
basis.
C.
Permit Revocation And Ordinance Violations.
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 permit or this Chapter.
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 or this Chapter;
b.
An evasion or attempt to evade any material provision of the ROW
permit or this Chapter or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its residents;
c.
A material misrepresentation of fact in the ROW permit application;
d.
A failure to complete ROW work by the date specified in the ROW permit,
unless an extension is obtained or unless the failure to complete
the work is due to reasons beyond the ROW user's control; and
e.
A failure to correct, upon reasonable notice and opportunity to cure
as specified by the Director, work that does not conform to applicable
national safety ordinances, industry construction standards, this
Chapter or any other applicable ordinances, provided that City standards
are no more stringent than those of a national safety ordinance.
2.
Any breach of the terms and conditions of a ROW permit shall also
be deemed a violation of this Chapter and in lieu of revocation the
Director may initiate prosecution of the ROW user for such violation.
[Ord. No. 2007-1557 §3C, 11-20-2007]
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 and
the ROW permit.
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 or substandard work as established in Subsection (G) hereof. Such orders:
a.
May be delivered personally or by certified mail to the address(es)
listed on the application for the ROW permit or the person in charge
of the construction site at the time of delivery;
b.
Shall state that substandard work or work not authorized by the ROW
permit is being carried out, summarize the substandard or unauthorized
work and provide a period of 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 responsible for the
substandard or unauthorized work shall be liable for all costs and
expenses incurred by the City in enforcing such orders, including
reasonable attorney's fees, in addition to any and all penalties established
in this Chapter.
B.
Underground Facilities.
1.
In conjunction with the City's long-standing policy favoring underground
construction, no person may erect, construct or install new poles
or other facilities above the surface of the rights-of-way without
the written permission of the City, unless the City's authority has
been pre-empted by State or Federal law. Such permission may be granted
through a ROW permit when other similar facilities exist above ground
or when conditions are such that underground construction is impossible,
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 reasonable written notice to other potential
ROW users, as directed by the City, 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.
Above Ground Facilities.
1.
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:
a.
Ornamental or similar specially designed street lights,
b.
Designated historic areas,
c.
Facilities, equipment, structures or locations that do not have electrical
service adequate or appropriate for the proposed facilities or cannot
safely bear the weight or wind loading thereof,
d.
Facilities, equipment, structures or locations that in the reasonable
judgment of the Director are incompatible with the proposed facilities
or would be rendered unsafe or unstable by the installation, and
e.
Facilities, equipment, structures or locations that have been designated
or planned for other use or are not otherwise available for use by
the applicant due to engineering, technological, proprietary, legal
or other limitations or restrictions.
2.
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 sightproof 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.
3.
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.
4.
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 517.020(B)(2) and the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
D.
Relocation Of Equipment And Facilities.
1.
In the event of an emergency or where construction equipment or facilities
create or are contributing to an imminent danger to health, safety
or property, the City may, to the extent allowed by law, remove, re-lay
or relocate such construction equipment or the pertinent parts of
such facilities, without charge to the City for such action or for
restoration or repair. The City shall attempt to notify the person
having facilities within the ROW prior to taking such action, but
the inability to do so shall not prevent same. Thereafter, the City
shall notify the person having facilities within the ROW as soon as
practicable.
2.
At the City's direction, all facilities shall be moved underground
and the cost shall be solely the obligation of the person having facilities
within the ROW (or as otherwise allowed or required by law).
3.
At the City's direction, a person having facilities within the ROW
shall protect, support, disconnect, relocate or remove facilities,
at its own cost and expense, when necessary to accommodate the construction,
improvement, expansion, relocation or maintenance of streets or other
public works or to protect the ROW or the public health, safety or
welfare.
4.
A person having facilities within the ROW shall, on the reasonable
request of any person and after reasonable advance written notice,
protect, support, disconnect, relocate or remove facilities to accommodate
such person and the actual cost, reasonably incurred, of such actions
shall be paid by the person requesting such action. The person having
facilities within the ROW taking such action may require such payment
in advance.
5.
Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (F) of this Section.
6.
No action hereunder shall be deemed a taking of property and no person
shall be entitled to any compensation therefor. No location of any
facilities within the rights-of-way shall be a vested interest.
E.
Property Repair And Alterations.
1.
During any ROW work, the person doing the work shall protect from
damage any and all existing structures and property belonging to the
City and any other person. Any and all rights-of-way, public property
or private property disturbed or damaged during the work shall be
repaired or replaced by the person doing the work or the person on
whose behalf the work is being done and such person shall immediately
notify the owner of the fact of any damaged property. Such repair
or replacement shall be completed within a reasonable time specified
by the 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.
F.
Removal, Abandonment, Transfer And Relocation Of Facilities.
1.
If a person having facilities within the ROW:
a.
Installs the facilities within the ROW without having complied with
the requirements of this Chapter, or
b.
Abandons the facilities, the City may require the removal of the
facilities, remove the facilities at the expense of the person having
facilities within the ROW or require the transfer of the facilities
as provided herein.
2.
If the City requires removal of the facilities, the person shall
obtain a ROW permit and shall abide by all requirements of this Chapter.
The liability, indemnity, insurance and bonding requirements required
herein shall continue in full force and effect during and after the
period of removal and restoration and until full compliance by the
person with the terms and conditions of the ROW permit and the requirements
of this Chapter.
3.
If the person fails to remove the facilities after having been directed
to do so, the City may, to the extent permitted by law, have the removal
done at the person's expense. Alternatively, the City may permit the
abandonment, without removal, of the facilities if the Director determines
that abandonment is not likely to prevent or significantly impair
the future use, repair, excavation, maintenance or construction of
the ROW.
4.
If the person fails to remove the facilities after having been directed
to do so, the City may, to the extent permitted by law, decide that
the ownership of the facilities should be transferred to the City
or to such person as directed by the City. In either case the owner
of the facilities shall submit a written instrument, satisfactory
in form to City, transferring to the City, or to such person as directed
by the City, ownership of the facilities. The City may sell, assign
or transfer all or part of the facilities so transferred.
5.
The City shall not remove or seek to possess or transfer the facilities
until thirty (30) days have passed following written notice by the
Director to the person having facilities within the ROW of the City's
intent to so act. The Director may choose not to act on good cause
shown by the person having facilities within the ROW.
G.
Standards For ROW Work.
1.
Except for emergency ROW work as provided in Section 517.020(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
is or will become materially different 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 a ROW permit in accordance with all requirements
of this Chapter.
3.
ROW users shall not open or encumber more of the rights-of-way than
is reasonably necessary to complete the ROW work in the most expeditious
manner or allow excavations to remain open longer than is necessary
to complete the work.
4.
All ROW work that affects vehicular or pedestrian traffic shall be
properly signed, barricaded and otherwise protected at the ROW user's
expense. The ROW user shall be responsible for providing adequate
traffic control 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 ordinances and laws and accepted industry
practices, all as hereafter may be amended or adopted. In the event
of a conflict among ordinances and standards, the most stringent ordinance
or standard shall apply (except insofar as that ordinance or standard,
if followed, would result in facilities that could not meet requirements
of Federal, State or local law).
8.
All facilities shall be installed and located to cause minimum interference
with the rights and convenience of property owners, 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 Chapter. A ROW
user:
a.
Must ensure that contractors, subcontractors and all employees performing
ROW work are trained and experienced,
b.
Shall be responsible for ensuring that all work is performed consistent
with the ROW permit and applicable law,
c.
Shall be fully responsible for all acts or omissions of contractors
or subcontractors,
d.
Shall be responsible for promptly correcting acts or omissions by
any contractor or subcontractor, and
e.
Shall implement a quality control program to ensure that the work
is properly performed.
13.
A ROW user shall not place or cause to be placed any sort of signs,
advertisements or other extraneous markings on the facilities or in
the ROW, whether relating to the ROW user or any other person, except
such necessary minimal markings approved by the City as necessary
to identify the facilities for service, repair, maintenance or emergency
purposes or as may be otherwise required to be affixed by applicable
law or regulation.
14.
Unless otherwise approved in writing by the City, a ROW user shall
not remove, cut or damage any trees or their roots within the ROW.
15.
Street crossings will be bored at the direction of the Director.
H.
Restoring And Maintaining The Rights-Of-Way.
1.
To complete any ROW work, the ROW user shall restore the ROW and
surrounding areas including, but not limited to, any pavement, foundation,
concrete slabs or curbs, screening, landscaping or vegetation and
shall comply with other 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.
It shall be the duty of any person making an excavation in the ROW
to backfill such excavations and restore the surface in accordance
with the City's minimum prescribed standards for such surfaces or
the following standards as determined by the Director.
a.
If the excavations are made in the improved portion of the ROW, twelve
(12) inches of granular backfill will be placed over exposed facilities
and controlled low strength material (CLSM) 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.
b.
If the excavations are made in the improved portion of an asphalt
or combination street, twelve (12) inches of granular backfill will
be placed over exposed facilities and CLSM will fill the hole within
nine (9) inches of the finished surface. There will be a plastic membrane
placed between the rock base and the CLSM to prevent the material
from bleeding into the rock base. The remaining nine (9) inches will
be restored by placing a six (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.
c.
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.
3.
If a 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.
4.
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. 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.
5.
A ROW user shall not be relieved of the obligation to complete the
necessary right-of-way restoration and maintenance because of the
existence of any performance bond required by this Chapter.
I.
Any
person performing ROW work shall provide written notice to all property
owners within one hundred eighty-five (185) feet of the site at least
forty-eight (48) hours prior to any installation, replacement or expansion
of its facilities. Notice shall include a reasonably detailed description
of work to be done, the location of work and the time and duration
of the work.
[Ord. No. 2007-1557 §3D, 11-20-2007]
A.
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. The Director may waive this requirement when
the work involves no 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 State and local regulations.
2.
If a ROW user fails to complete the ROW work in a safe, timely and
competent manner or if the completed restorative work fails without
remediation within the time period for the bond (as determined by
the 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's attorney and shall
contain the following endorsement:
"This bond may not be canceled or allowed to lapse until sixty
(60) days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
5.
In lieu of the bond required herein, the ROW user may establish in
the City's favor such other security as the 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).
B.
Insurance.
1.
All ROW users shall maintain, for the duration of any ROW work and,
when applicable, for as long as the ROW user has facilities within
the rights-of-way, at least the following liability insurance coverage:
Workers' Compensation and employer liability insurance to meet all
requirements of Missouri law and commercial general liability insurance
with respect to the construction, operation and maintenance of the
facilities and the conduct of the ROW user's business in the City
in the minimum amounts of:
a.
Two million dollars ($2,000,000.00) for property damage resulting
from any one (1) accident;
b.
Five million dollars ($5,000,000.00) for personal bodily injury or
death resulting from any one (1) accident; and
c.
Two million dollars ($2,000,000.00) for all other types of liability.
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These insurance requirements shall not be construed to limit
the liability of any person or to impose any liability on the City
or to waive any sovereign immunity.
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2.
All insurance policies shall be with sureties qualified to do business
in the State of Missouri with an "A" or better rating of insurance
by Best's Key Rating Guide, Property/Casualty Edition and in a form
approved by the City.
3.
All insurance policies shall be 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.
4.
All general liability insurance policies shall name the City, its
officers, boards, board members, commissions, commissioners, agents
and employees as additional insureds and shall further provide that
any cancellation or reduction in coverage shall not be effective unless
thirty (30) days' prior written notice thereof has been given to the
Director. A ROW user shall not cancel any required insurance policy
without submission of proof that it has obtained alternative insurance
that complies with this Chapter.
5.
The Director may exempt in writing from these insurance requirements
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 Chapter.
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 applicable regulatory law.
C.
Indemnification.
1.
Any ROW user granted a ROW permit and any person having facilities
within the rights-of-way, as partial consideration for the privilege
granted, shall, at its sole cost and expense, indemnify, hold harmless
and defend the City, its officials, boards, board members, commissions,
commissioners, agents and employees against any and all claims, suits,
causes of action, proceedings and judgments for damages or equitable
relief arising out of:
a.
Any ROW work including, but not limited to, the construction, maintenance,
repair or replacement of the facilities,
b.
The operation of its facilities,
c.
Failure to secure consents from landowners, or
d.
Any actions taken or omissions made by the person pursuant to the
authority of this Chapter.
2.
The foregoing indemnity provisions include, but are not limited to,
the City's reasonable attorneys' fees incurred in defending against
any such claim, suit or proceeding prior to the person assuming such
defense. The City shall notify a person of claims and suits within
seven (7) business days of its actual knowledge of the existence of
such claim, suit or proceeding. Once a person assumes such defense,
the City may, at its option, continue to participate in the defense
at its own expense.
3.
Notwithstanding anything to the contrary contained in this Chapter,
the City shall not be so indemnified or reimbursed in relation to
any amounts attributable to:
4.
Recovery by the City of any amounts under insurance, a performance
bond or otherwise does not limit a person's duty to indemnify the
City in any way; nor shall such recovery relieve a person of amounts
owed to the City or in any respect prevent the City from exercising
any other right or remedy it may have.
D.
Penalties. Any person violating any provision of this Chapter
shall, upon conviction 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.
[Ord. No. 2007-1557 §3E, 11-20-2007]
A.
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
Chapter. 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 Chapter, provided
however, that this review shall not apply to matters being prosecuted
in the Municipal Court. Any final determination of the Director shall
be subject to review as provided herein.
B.
Any
person aggrieved by a final determination of the Director may appeal
in writing to the City Manager within five (5) business days thereof.
The appeal shall assert specific grounds for review and the City Manager
shall render a decision on the appeal within fifteen (15) business
days of receipt affirming, reversing or modifying the determination
of the Director. The Board of Aldermen may extend this time period
for the purpose of any investigation or hearing deemed necessary.
A decision affirming the Director's determination shall be in writing
and supported by findings establishing the reasonableness of the decision.
C.
Any
person aggrieved by the final determination of the City Manager may
file a petition for review pursuant to Chapter 536, RSMo., as amended,
in the Circuit Court of St. Louis County, Missouri. Such petition
shall be filed within thirty (30) days after the City Manager's final
determination.
D.
Arbitration And Mediation.
1.
On agreement of the parties and in addition to any other remedies,
any final decision of the City Manager may be submitted to mediation
or binding arbitration.
2.
In the event of mediation, the City Manager and the applicant or
ROW user shall agree to a mediator. The costs and fees of the mediator
shall be borne equally by the parties and each party shall pay its
own costs, disbursements and attorney fees.
3.
In the event of arbitration, the City Manager and the applicant or
ROW user shall agree to a single arbitrator. The costs and fees of
the arbitrator shall be borne equally by the parties. If the parties
cannot agree on an arbitrator, the matter shall be resolved by a three
(3) person arbitration panel consisting of one (1) arbitrator selected
by the City Manager, one (1) arbitrator selected by the applicant
or ROW user and one (1) person selected by the other two (2) arbitrators,
in which case each party shall bear the expense of its own arbitrator
and shall jointly and equally bear with the other party the expense
of the third (3rd) arbitrator and of the arbitration. Each party shall
also pay its own costs, disbursements and attorney fees.
[Ord. No. 2007-1557 §3F, 11-20-2007]
A.
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 that are compatible with City systems,
as determined by the Director, or in hard copy otherwise.
B.
Upon
failure of a ROW user to commence, pursue or complete any ROW work
required by law or by the provisions of this Chapter to be done in
any street within the time prescribed and to the reasonable satisfaction
of the City, the City may, at its option, after thirty (30) days'
notice, cause such work to be done and the ROW user shall pay to the
City the cost thereof in the itemized amounts reported by the City
to the ROW user within thirty (30) days after receipt of such itemized
report.
C.
Upon
ten (10) days' written notice and with the supervision of the City
or as otherwise provided by law, a ROW user shall have the authority
to trim trees that overhang rights-of-way of the City so as to prevent
the branches of such trees from coming in contact with its facilities,
at its own expense subject to the supervision and direction of the
City. Nothing in this paragraph shall authorize the trimming of trees
on private property without permission of the property owner. All
cut materials shall be properly disposed.
D.
During
ROW work by a ROW user, the City shall have the right to install,
and to thereafter maintain, at its own cost in any excavation to or
other applicable disturbance of the ROW any parallel facilities of
its own that do not unreasonably interfere with the operations of
other facilities.
E.
Nothing
in this Chapter shall be in preference or hindrance to the right of
the City and any board, authority, commission or public service corporation
of the City to use or occupy the rights-of-way or to perform or carry
on any public works or public improvements of any description.
[Ord. No. 2019-1878, 3-19-2019]
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 this Chapter 517 (which regulates use of public rights-of-way) and Section 405.163 (which regulates utility facilities on private property) shall apply to small wireless deployments except to the extent inconsistent with this Section 517.070.
[1]
See Section 67.5110, RSMo.
B.
ANTENNA
APPLICABLE CODES
APPLICANT
APPLICATION
AUTHORITY or CITY
AUTHORITY POLE
AUTHORITY WIRELESS SUPPORT STRUCTURE
CO-LOCATE or CO-LOCATION
COMMUNICATIONS FACILITY
COMMUNICATIONS SERVICE PROVIDER
DECORATIVE POLE
FEE
HISTORIC DISTRICT
MICRO WIRELESS FACILITY
PERMIT
PERSON
RATE
RIGHT-OF-WAY
SMALL WIRELESS FACILITY
1.
2.
TECHNICALLY FEASIBLE
UTILITY POLE
WIRELESS FACILITY
1.
2.
3.
4.
WIRELESS INFRASTRUCTURE PROVIDER
WIRELESS PROVIDER
WIRELESS SERVICES
WIRELESS SERVICES PROVIDER
WIRELESS SUPPORT STRUCTURE
WIRELINE BACKHAUL FACILITY
Definitions.[2] As used in this Section, the following terms shall have
the meanings indicated:
Communications equipment that transmits or receives electromagnetic
radio frequency signals used in the provision of wireless services;
Uniform building, fire, electrical, plumbing, or mechanical
codes adopted by a recognized national code organization or 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);
Any person who submits an application and is a wireless provider;
A request submitted by an applicant to the City for a permit
to co-locate small wireless facilities on a utility pole or wireless
support structure, or to approve the installation, modification, or
replacement of a utility pole;
The City of Frontenac;
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;
A wireless support structure owned, managed, or operated
by or on behalf of the City;
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;
The set of equipment and network components, including wires,
cables, and associated facilities used by a cable operator, as defined
in 47 U.S.C. § 522(5); a telecommunications carrier, as
defined in 47 U.S.C. § 153(51); a provider of information
service, as defined in 47 U.S.C. § 153(24); or wireless
services provider; to provide communications services, including cable
service, as SS SCS HCS HB 1991 7 defined in 47 U.S.C. § 522(6);
telecommunications service, as defined in 47 U.S.C. § 153(53);
an information service, as defined in 47 U.S.C. § 153(24);
wireless communications service; or other one-way or two-way communications
service;
A cable operator, as defined in 47 U.S.C. § 522(5);
a provider of information service, as defined in 47 U.S.C. § 153(24);
a telecommunications carrier, as defined in 47 U.S.C. § 153(51);
or a wireless provider;
A City pole that is specially designed and placed for aesthetic
purposes;
A one-time, non-recurring charge;
A group of buildings, properties, or sites that are either
listed in the National Register of Historic Places or formally determined
eligible for listing by the Keeper of the National Register, the individual
who has been delegated the authority by the Federal agency to list
properties and determine their eligibility for the National Register,
in accordance with Section VI.D.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;
A small wireless facility that meets the following qualifications:
A written authorization required by the City to perform an
action or initiate, continue, or complete a project;
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including any
government authority;
A recurring charge;
The area on, below, or above a public roadway, highway, street,
sidewalk, alley, or similar property used for public travel, but not
including a Federal interstate highway, railroad right-of-way, or
private easement;
A wireless facility that meets both of the following qualifications:
Each wireless provider's antenna could fit within an enclosure
of no more than six (6) cubic feet in volume; and
All other equipment associated with the wireless facility, whether
ground- or pole-mounted, is cumulatively no more than twenty-eight
(28) cubic feet in volume, provided that no single piece of equipment
on the utility pole shall exceed nine (9) cubic feet in volume; and
no single piece of ground-mounted equipment shall exceed fifteen (15)
cubic feet in volume, exclusive of equipment required by an electric
utility or municipal electric utility to power the small wireless
facility. The following types of associated ancillary equipment shall
not be included in the calculation of equipment volume: electric meter,
concealment elements, telecommunications demarcation box, grounding
equipment, power transfer switch, cutoff switch, and vertical cable
runs and related conduit for the connection of power and other services;
By virtue of engineering or spectrum usage, the proposed
placement for a small wireless facility or its design or site location
can be implemented without a reduction in the functionality of the
small wireless facility;
A pole or similar structure that is or may be used in whole
or in part by or for wireline communications, electric distribution,
lighting, traffic control, signage, or a similar function, or for
the co-location 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;
Equipment at a fixed location that enables wireless communications
between user equipment and a communications network, including equipment
associated with wireless communications and radio transceivers, antennas,
coaxial or fiber-optic cable, regular and backup power supplies, and
comparable equipment, regardless of technological configuration. The
term includes small wireless facilities. The term does not include:
The structure or improvements on, under, or within which the
equipment is co-located;
Coaxial or fiber-optic cable between wireless support structures
or utility poles;
Coaxial or fiber-optic cable not directly associated with a
particular small wireless facility;
A wireline backhaul facility;
Any person, including a person authorized to provide telecommunications
service in the State, that builds or installs wireless communication
transmission equipment or wireless facilities but that is not a wireless
services provider;
A wireless infrastructure provider or a wireless services
provider;
Any services using licensed or unlicensed spectrum, including
the use of wifi, whether at a fixed location or mobile, provided to
the public using wireless facilities;
A person who provides wireless services;
An existing structure, such as a monopole or tower, whether
guyed or self-supporting, designed to support or capable of supporting
wireless facilities; an existing or proposed billboard; an existing
or proposed building; or other existing or proposed structure capable
of supporting wireless facilities, other than a structure designed
solely for the co-location of small wireless facilities. Such term
shall not include a utility pole;
A physical transmission path, all or part of which is within
the right-of-way, used for the transport of communication data by
wire from a wireless facility to a network.
[2]
See Section 67.5111, RSMo.
C.
Deployment Of Small Wireless Facilities And Associated Poles In Right-Of-Way.[3]
1.
The provisions of this Subsection shall only apply to activities
of a wireless provider within the right-of-way to deploy small wireless
facilities and associated utility poles.
2.
Subject to the provisions of this Subsection and Sections 67.5110 to 67.5121, RSMo. (while in effect), a wireless provider may, as a permitted use not subject to zoning review or approval, co-locate 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 this Chapter 517, specifically Section 517.030. Small wireless facilities co-located 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 but shall be subject to the standards, including requirements for underground utilities, set forth in Section 405.163. Such small wireless facilities and utility poles shall be installed and maintained as not to obstruct or hinder the usual travel or public safety on such right-of-way or obstruct the legal use of such right-of-way by the City, other governmental authorities or other authorized right-of-way users.
3.
A wireless provider must obtain a permit pursuant to this Chapter,
with such reasonable conditions as may be imposed by the City, for
work in a right-of-way that will involve excavation, affect traffic
patterns, obstruct traffic in the right-of-way, or materially impede
the use of a sidewalk.
4.
Each new, replacement, or modified utility pole installed in
the right-of-way shall not exceed the greater of ten (10) feet in
height above the tallest existing utility pole in place as of January
1, 2019, located within five hundred (500) feet of the new pole in
the same right-of-way, or fifty (50) feet above ground level. New
small wireless facilities in the right-of-way shall not extend more
than ten (10) feet above an existing utility pole in place as of August
28, 2018, or for small wireless facilities on a new utility pole,
above the height permitted for a new utility pole. A new, modified,
or replacement utility pole that exceeds these height limits shall
be subject to all applicable zoning requirements that apply to other
utility poles as set forth in the Municipal Code 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 co-locate 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
Building Commissioner and Zoning Administrator.
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 an historic district, as determined by the Building Commissioner and Zoning Administrator. 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 co-locations 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]
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 this Chapter 517 to co-locate 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. Wireless providers or their agents shall apply for and obtain a permit pursuant to Section 405.163 to co-locate a small wireless facility or install a new, modified, or replacement utility pole associated with a small wireless facility on private property. The City shall receive applications for, process, and issue such permits subject to the following requirements:
a.
An applicant shall not be required to perform services or provide
goods unrelated to the permit, such as in-kind contributions to the
City, including reserving fiber, conduit, or pole space for the City;
b.
An applicant shall not be required to provide more information to obtain a permit than communications service providers that are not wireless providers, provided that an applicant shall include construction and engineering drawings and information demonstrating compliance with the criteria in Subsection (D)(2)(i) of this Section and an attestation that the small wireless facility complies with the volumetric limitations in the definition of "small wireless facility" in Subsection (B) above;
c.
An applicant shall not be required to place small wireless facilities
on any specific utility pole or category of poles or require multiple
antenna systems on a single utility pole;
d.
There is no limit as to the placement of small wireless facilities
by minimum horizontal separation distances;
e.
An applicant shall comply with reasonable, objective, and cost-effective
concealment or safety requirements as provided herein;
f.
An applicant that is not a wireless services, provider shall
provide evidence of agreements or plans demonstrating that the, small
wireless facilities will be operational for use by a wireless services
provider within one year after the permit issuance date, unless the
City and the applicant agree to extend this period or if delay is
caused by lack of commercial power or communications transport facilities
to the site and the applicant notifies the City thereof. An applicant
that is a wireless services provider shall provide the information
required by this Subsection by attestation;
g.
Within fifteen (15) days of receiving an application, the City shall determine and notify the applicant in writing whether the application is complete. If an application is incomplete, the City shall specifically identify the missing information in writing. The processing deadline in Subsection (D)(2)(h) of this Section shall be tolled from the time the City sends the notice of incompleteness to the time the applicant provides the missing information. That processing deadline may also be tolled by agreement of the applicant and the City;
h.
An application for co-location shall be processed on a non-discriminatory
basis and deemed approved if the City fails to approve or deny the
application within forty-five (25) 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 co-location of a small wireless facility or installation, modification, or replacement of a utility pole that meets the requirements in Subsection (C)(4) above only if the action proposed in the application could reasonably be expected to:
(1)
Materially interfere with the safe operation of
traffic control equipment or City-owned communications equipment;
(2)
Materially interfere with sight lines or clear
zones for transportation, pedestrians, or non-motorized vehicles;
(3)
Materially interfere with compliance with the Americans
with Disabilities Act, 42 U.S.C. § 12101 to 12213, or similar
Federal or State standards regarding pedestrian access or movement;
(4)
Materially obstruct or hinder the usual travel
or public safety on the right-of-way;
(5)
Materially obstruct the legal use of the right-of-way
by the City, utility, or other third party;
(6)
Fail to comply with reasonable and non-discriminatory
spacing requirements of general application adopted by ordinance or
regulations promulgated by the State Highways and Transportation Commission
that concern the location of ground-mounted equipment and new utility
poles, subject to wireless provider requests for exception or variance;
(7)
Fail to comply with applicable codes, including
nationally recognized engineering standards for utility poles or wireless
support structures;
(8)
Fail to comply with the reasonably objective and
documented aesthetics of a decorative pole and the applicant does
not agree to pay to match the applicable decorative elements; or
(9)
Fail to comply with reasonable and non-discriminatory
undergrounding requirements contained in City ordinances as of January
1, 2018, or subsequently enacted for new developments, that require
all new utility facilities in the area to be placed underground and
prohibit the installation of new or the modification of existing utility
poles in a right-of-way without prior approval, including by wireless
provider requests for exception or variance;
j.
The City shall document the complete basis for a denial in writing,
and send the documentation to the applicant with the communication
denying an application. The applicant may cure the deficiencies identified
by the City and resubmit the application within thirty (30) days of
the denial without paying an additional application fee. The City
shall approve or deny the revised application within thirty (30) days.
Any subsequent review shall be limited to the deficiencies cited in
the denial;
k.
Consolidated Application.
(1)
An applicant may file a consolidated application
and receive a single permit for the co-location of multiple small
wireless facilities; provided, however, the denial of one (1) or more
small wireless facilities in a consolidated application shall not
delay processing of any other small wireless facilities in the same
batch; and
(2)
An application may include up to twenty (20) separate
small wireless facilities, provided that they are for the same or
materially same design of small wireless facility being co-located
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 co-location or replacement or installation application
submitted during that fourteen-day period or in the fourteen-day period
immediately following the prior fourteen-day period. The City shall
promptly communicate its request to each affected applicant. In rendering
a decision on an application for multiple small wireless facilities,
the City may approve the application as to certain individual small
wireless facilities while denying it as to others based on applicable
requirements and standards, including those identified in this Subsection.
The City's denial of any individual small wireless facility or
subset of small wireless facilities within an application shall not
be a basis to deny the application as a whole;
l.
Installation or co-location 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 co-location; and
(2)
Operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of ten (10) years, which shall be renewed for equivalent durations so long as the facilities and poles remain in compliance with the criteria set forth in Subsection (D)(2)(i) of this Section, unless the applicant and the City agree to an extension term of less than ten (10) years. The provisions of this Subsection shall be subject to the right of the City to require, upon adequate notice and at the facility owner's own expense, relocation of facilities as may be needed in the interest of public safety and convenience, and the applicant's right to terminate at any time;
n.
There shall be a temporary moratorium on applications for small
wireless facilities and the co-location thereof for the duration of
a Federal- or state-declared natural disaster plus a reasonable recovery
period, or for no more than thirty (30) days in the event of a major
and protracted staffing shortage that reduces the number of personnel
necessary to receive, review, process, and approve or deny applications
for the co-location of small wireless facilities by more than fifty
percent (50%);
o.
Abandoned small wireless facilities shall be removed as provided
in this Code or an agreement, as applicable;
p.
In determining whether sufficient capacity exists to accommodate
the attachment of a new small wireless facility, the City shall take
into account that any grant of access hereunder shall be subject to
a reservation to reclaim such space, when and if needed, to meet a
core utility purpose or documented plan projected at the time of the
application pursuant to a bona fide development plan; and
q.
In emergency circumstances that result from a natural disaster
or accident, the City may require the owner or operator of a wireless
facility to immediately remove such facility if the wireless facility
is obstructing traffic or causing a hazard on the City's roadway.
In the event that the owner or operator of the wireless facility is
unable to immediately remove the wireless facility, the City may remove
the wireless facility from the roadway or other position that renders
the wireless facility hazardous. Under these emergency circumstances,
the City shall not be liable for any damage caused by removing the
wireless facility and may charge the owner or operator of the wireless
facility the City's reasonable expenses incurred in removing
the wireless facility.
3.
Permit Not Required.
a.
A permit is not required for:
(1)
Routine maintenance on previously permitted small
wireless facilities;
(2)
The replacement of small wireless facilities with
small wireless facilities that are the same or smaller in size, weight,
and height; or
(3)
The installation, placement, maintenance, operation,
or replacement of micro wireless facilities that are strung on cables
between utility poles, in compliance with applicable codes.
b.
For work described in Subsection (D)(3)(a)(1) and (2) of this Section that involves different equipment than that being replaced, the wireless services provider shall submit a description of such new equipment so that the City may maintain an accurate inventory of the small wireless facilities at that location.
4.
No approval for the installation, placement, maintenance, or
operation of a small wireless facility under this Section shall be
construed to confer authorization for the provision of cable television
service, or installation, placement, maintenance, or operation of
a wireline backhaul facility or communications facility, other than
a small wireless facility, in the right-of-way.
5.
A municipal electric utility shall not require an application
for the installation, placement, maintenance, operation, or replacement
of micro wireless facilities that are strung on cables between utility
poles, in compliance with applicable codes.
[4]
See Section 67.5113, RSMo.
E.
Co-locations On City Poles And Wireless Support Structures Outside
Of Right-Of-Way.[5]
1.
This Subsection only applies to co-locations on City poles and
wireless support structures that are located outside the right-of-way.
2.
Subject to Subsection (E)(3) of this Section, the City shall authorize the co-location 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 co-locations shall be subject to reasonable and non-discriminatory rates, fees, and terms as provided in an agreement between the City, or its agent, and the wireless provider in a form approved by the Board of Aldermen.
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 co-locate
small wireless facilities, on reasonable and non-discriminatory rates
and terms, as to itself, an affillate, 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]
See Section 67.5114, RSMo.
F.
Co-locations On City Poles Within The Right-Of-Way.[6]
1.
The provisions of this Subsection apply to co-locations 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 co-location 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 the applicant agree to different terms in a
pole attachment agreement:
a.
The rates, fees, and terms and conditions for the make-ready
work to co-locate 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 co-location
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 co-location would make the pole structurally unsound, including,
but not limited to, if the co-location 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 co-located.
[6]
See Section 67.5115, RSMo.
G.
Rates and fees.[7]
1.
This Subsection governs the rates and fees to co-locate 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 co-locate on City poles shall be non-discriminatory
regardless of the services provided by the co-locating 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
co-location 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 for co-location of small wireless facilities on existing City poles shall be one hundred dollars ($100.00) per small wireless facility. An applicant filing a consolidated application under Subsection (D)(2)(k) shall pay one hundred dollars ($100.00) per small wireless facility included in the consolidated application; and
b.
The total application fees for the installation, modification,
or replacement of a pole and the co-location of an associated small
wireless facility on such pole shall be five hundred dollars ($500.00)
per pole.
4.
Rate For Co-Location.
a.
The rate for co-location of a small wireless facility to a City
pole within the right-of-way shall be one hundred fifty dollars ($150.00)
per pole per year.
b.
The City shall not charge a wireless provider any fee, tax other than a tax authorized by Subsection (G)(4)(c) below, or other charge, or require any other form of payment or compensation, to locate a wireless facility or wireless support structure on privately owned property, or on a wireless support structure not owned by the City.
c.
The City shall not demand any fees, rentals, licenses, charges,
payments, or assessments from any applicant or wireless provider for,
or in any way relating to or arising from, the construction, deployment,
installation, mounting, modification, operation, use, replacement,
maintenance, or repair of small wireless facilities or utility poles,
if not allowed by Section 67.5116, RSMo. (while in effect).
[7]
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]
See Section 67.5118, RSMo.
I.
Prior Agreements.[9] This Section 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]
See Section 67.5119, RSMo.
J.
Indemnification, Insurance, And Bonding Requirements.[10]
1.
A wireless provider shall indemnify and hold the City and its
elected and appointed officers and employees harmless against any
damage or personal injury caused by the negligence of the wireless
provider or its employees, agents, or contractors, including but not
limited to reasonable attorneys' fees incurred by the City.
2.
A wireless provider shall have in effect insurance coverage, or demonstrate a comparable self-insurance program, all in accordance with Section 517.040. A self-insured wireless provider does not need to name the City or its officers and employees as additional insured. A wireless provider shall furnish proof of insurance, if applicable, prior to the effective date of any permit issued for a small wireless facility.
3.
The bonding requirements of Section 517.040 shall apply to small wireless facilities. The purpose of such bonds shall be to:
a.
Provide for the removal of abandoned or improperly maintained
small wireless facilities, including those that an authority determines
need to be removed to protect public health, safety, or welfare;
b.
Restore the right-of-way in connection with removals under Section
67.5113, RSMo.;
c.
Recoup rates or fees that have not been paid by a wireless provider
in over twelve (12) months, so long as the wireless provider has received
reasonable notice from the City of any non-compliance listed above
and been given an opportunity to cure;
d.
Bonding requirements shall not exceed one thousand five hundred
dollars ($1,500.00) per small wireless facility. For wireless providers
with multiple small wireless facilities within the City, the total
bond amount across all facilities shall not exceed seventy-five thousand
dollars ($75,000.00), which amount may be combined into one (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 noncompliance
within the City shall, under Section 67.1830, RSMo., be exempt from
the insurance and bonding requirements otherwise authorized by this
Section.
5.
Any contractor, subcontractor, or wireless infrastructure provider
shall be under contract with a wireless services provider to perform
work in the right-of-way related to small wireless facilities or utility
poles, and such entities shall be properly licensed under the laws
of the State and all applicable City ordinances. Each contracted entity
shall have the same obligations with respect to his or her work as
a wireless services provider would have under this Section, under
Sections 67.5110 to 67.5121, RSMo., and other applicable laws if the
work were performed by a wireless services provider. The wireless
services provider shall be responsible for ensuring that the work
of such contracted entities is performed consistently with the wireless
services provider's permits and applicable laws relating to the
deployment of small wireless facilities and utility poles, and responsible
for promptly correcting acts or omissions by such contracted entity.
[10]
See Section 67.5121, RSMo.
K.
Expiration.[11] This Section 517.070 shall expire at such time that Sections 67.5110 to 67.5122, RSMo., expire, except that for small wireless facilities already permitted or co-located on City poles prior to such date, the rate set forth in Subsection G of this Section for co-location of small wireless facilities on City poles shall remain effective for the duration of the permit authorizing the co-location.
[11]
See Section 67.5122, RSMo.
