[Ord. No. 1310 §§1, 3, 7-9-2003]
Except as provided herein, this Chapter shall apply to all excavation and use, construction, operation, and maintenance of facilities, in, across, under or over all public rights-of-way within the City.
[Ord. No. 1310 §§1, 3, 7-9-2003]
Definitions And Word Usage. For the purposes of this Chapter, the following terms, phrases, words and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense and vice versa, words in the plural number include the singular number, and vice versa, and the masculine gender includes the feminine gender and vice versa. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated or clearly contrary to the context, terms, phrases, words, and abbreviations not defined herein shall be given the meaning set forth in the City Code, and if not defined therein, their common and ordinary meaning.
The specific person applying for and receiving a permit for facilities work.
That form designed by the City of Platte City which an applicant must use to obtain a permit to conduct facilities work within, across, under, or over the City's rights-of-way.
The governing body of the City of Platte City, Missouri.
The City of Platte City, Missouri and its agencies, departments, agents, and employees acting within their respective areas of authority.
The City Engineer or his/her designee.
The City Administrator or his/her designee.
Any act by which earth, asphalt, concrete, sand, gravel, rock or any other material in or on the ground is cut into, dug, uncovered, removed, or otherwise displaced by means of any tools, equipment or explosives, except that, any de minimis displacement or movement of ground caused by pedestrian or vehicular traffic which does not materially disturb or displace surface conditions of the earth, asphalt, concrete, sand, gravel, rock or any other material in or on the ground shall not be deemed excavation, or such other activities excluded by applicable law from these regulations.
Any conduit, duct, line, pipe, wire, hose, cable, culvert, pole, receiver, transmitter, satellite dish, micro call, Pico cell, repeater, amplifier, or other device, material, apparatus, or medium, usable (whether actually used for such purpose or not) for the transmission or distribution of any service or commodity installed below or above ground within the public rights-of-way of the City, whether used privately or made available to the public. Facilities shall not include minor residential or other incidental uses such as mailboxes, driveway aprons, private utility connections or other such non-service related incidental facilities which may be permitted by special permit issued by the City Engineer.
The installation of new facilities, or any change, replacement, relocation, removal, alteration or repair of existing facilities, that requires excavation within the public rights-of-way, except for:
Individual water and sewer taps permitted as part of a building permit, and individual service connections from a supply line, wire, or cable, for natural gas, electric, cable television, telecommunications, or other services to a residence or business.
Work that will not disrupt any pavement, drainage systems or other structures.
8:00 A.M. to 5:00 P.M. Central Standard Time, Monday through Friday.
A permit granted by the City Engineer to do the facilities work within the public rights-of-way.
An individual, partnership, limited liability company, corporation, association, joint stock company, trust, organization, or other entity, or any lawful successor thereto or transferee thereof.
A written plan of work prepared and presented by an applicant that encompasses an outlined scope of work to be conducted within the City's right-of-way.
The area on, below or above a public roadway, highway, street or alleyway in which the City has an ownership interest, but not including:
The airwaves above a public right-of-way with regard to cellular or other non-wire telecommunications or broadcast service;
Easements obtained by utilities including the municipal utility or private easements in platted subdivisions or tracts;
Railroad rights-of-way and ground utilized or acquired for railroad facilities; or
Poles, pipes, cables, conduits, wires, optical cables, or other means of transmission, collection or exchange of communications, information, substances, data, or electronic or electrical current or impulses utilized by a municipally owned or operated utility pursuant to Chapter 91, RSMo., or pursuant to a charter form of government.
No reference herein, or in any permit, to "Public Rights-of-Way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes.
The term "Rights-Of-Way User" or "ROW-User" shall mean such persons and entities maintaining or installing facilities in the public rights-of-way of the City that provide a service for or without a fee including, but not limited to, every cable television service provider, pipeline corporation, gas corporation, electrical corporation, rural electric cooperative, telecommunications company, water corporation, heating or refrigerating corporation or sewer corporation under the jurisdiction of the Public Service Commission; every municipally owned or operated utility pursuant to Chapter 91, RSMo., or pursuant to a charter form of government or cooperatively owned or operated utility pursuant to Chapter 394, RSMo.; every street light maintenance district; every privately owned utility; and every other entity, regardless of its form of organization or governance, whether for profit or not, which in providing a public utility type of service for members of the general public, utilizes pipes, cables, conduits, wires, optical cables, poles, or other means of transmission, collection or exchange of communications, information, substances, data, or electronic or electrical current or impulses, in the collection, exchange or dissemination of its product or services through the public rights-of-way, and all other persons or entities installing or maintaining facilities in the public rights-of-way of the City not otherwise expressly exempted.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Agreement Or Franchise Required. Except when otherwise authorized by applicable law, no ROW-User may construct, maintain, own, control, or use Facilities in the Rights-of-Way without a franchise or ROW agreement with the City as provided herein. All such franchises and agreements shall be approved by ordinance of the Board on a non-discriminatory basis provided that the applicant is in compliance with all applicable requirements. Such franchises and agreements shall be deemed to incorporate the terms of this Chapter and other applicable laws of the City, except as may be expressly stated in such agreements and franchises. Reseller Service ROW-Users shall not be required to obtain a franchise or agreement but shall be required to register with the City prior to providing service on forms provided by the City.
1.
Franchise. A franchise shall be obtained in conformance with all applicable franchise procedures for any ROW-User seeking to use the Rights-of-Way for purposes of providing cable television service, or distribution of electricity, gas, water, steam, lighting, or sewer public utility service in the City. Such franchise may be granted only after a public hearing and on satisfaction of all other applicable procedural or substantive requirements. ROW-Users shall also be subject to the City's Cable Television Services Ordinance or other ordinances of the City applicable to specific uses of the ROW, to the extent permitted under applicable law.
2.
ROW agreement. A ROW agreement shall be required for all ROW-Users not set forth in Subsection (1), except as otherwise required herein or by law. Such agreements shall conform to all applicable law, but shall not be subject to procedures applicable to franchises and the City may, if appropriate, approve form agreements that may be executed by the City Administrator after approval by the Board.
3.
Incidental uses. Incidental uses of the public Rights-of-Way may be permitted without a franchise or ROW agreement pursuant to a right-of-way excavation permit issued by the Public Works Director. The Public Works Director may establish such application, requirements and conditions applicable to such uses consistent with the purposes of this Chapter or as otherwise established by law.
B.
Franchises And Agreements Non-Exclusive. The authority granted by the City in any agreement or franchise shall be for nonexclusive use of the Rights-of-Way. The City specifically reserves the right to grant, at any time, such additional agreements or other rights to use the Rights-of-Way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable law. The granting of an agreement or franchise shall not be deemed to create any property interest of any kind in favor of the ROW-User.
C.
Lease Required For Public Lands. Unless otherwise provided, use or installation of any Facilities in, on or over public lands of the City not constituting Rights-of-Way shall be permitted only if a lease agreement or other separate written approval has been negotiated and approved by the City with such reasonable terms and conditions as the City may require.
D.
Application For Franchise Or Agreement Required.
1.
Application. An application for franchise or ROW agreement shall be presented to the City Administrator in writing and shall include all such information as is required by this Section. The ROW-User shall be responsible for accurately maintaining the information in the application during the term of any franchise or agreement and shall be responsible for all costs incurred by the City due to the failure to provide or maintain as accurate any application information required herein.
2.
Application fee. An application fee for review, documentation and approval of such agreement or franchise shall be established by the City Administrator to recover any actual costs anticipated and incurred by the City in reviewing, documenting, or negotiating such agreement or franchise, including reasonable legal fees, provided that no costs, if any, of litigation or interpretation of Sections 67.1830 or 67.1832, RSMo., shall be included if such inclusion is prohibited by law as to that applicant. If the actual costs are thereafter determined to be less than the application fee, such amount shall be returned to the applicant after written request therefrom; if the actual costs exceed the application fee, applicant shall, after written notice from the City, pay such additional amount prior to issuance by the City of any final approval. Nothing herein shall be construed to prohibit the City from also charging reasonable compensation for use of the public Rights-of-Way where such a fee is not contrary to applicable law.
3.
Application form. A ROW-User shall submit a completed application for franchise or ROW agreement on such form provided by the City, which shall include information necessary or appropriate to determine compliance with this Chapter.
4.
Approval process. After submission by the ROW-User of a duly executed and completed application and application fee, and executed franchise or ROW agreement as may be provided by the City Administrator, or as modified by the City Administrator in review of the specific circumstances of the application, all in conformity with the requirements of this Chapter and all applicable law, the City Administrator shall submit such franchise or agreement to the Board of Aldermen for approval. Upon determining compliance with this Chapter, the Board of Aldermen shall authorize execution of the franchise or agreement (or a modified agreement otherwise acceptable to the City consistent with the purposes of this Chapter), and such executed franchise or agreement shall constitute consent to use the public Rights-of-Way; provided that nothing herein shall preclude the rejection or modification of any executed franchise or agreement submitted to the City to the extent such applicable law does not prohibit such rejection or modification, including where necessary to reasonably and in a uniform or nondiscriminatory manner reflect the distinct engineering, construction, operation, maintenance, public work or safety requirements applicable to the applicant.
[Ord. No. 1310 §§1, 3, 7-9-2003]
Except as provided in this Chapter or as otherwise required by law, no franchise, agreement or permit may be transferred without the written application to and consent of the City based on the requirements and policies of this ROW Chapter. The City shall not unreasonably withhold its consent to transfer as provided herein.
[Ord. No. 1310 §§1, 3, 7-9-2003; Ord. No. 1683 §19, 3-9-2011]
A.
Except as otherwise provided herein, no ROW user or other person shall perform excavation or facilities work in the right-of-way without a right-of-way permit. Any person desiring to conduct facilities work within public rights-of-way shall first apply for and obtain a permit, in addition to any other building, permit, license, easement, or authorization required by law, unless such facilities work must be performed on an emergency basis, then the person conducting the work shall as soon as practicable notify the City of the location of the work and shall apply for the required permit by the next business day following the commencement of the facilities work. A permit should be obtained for each project. A separate special permit or agreement shall be required for excavation in or use of any real property interest of the City that is not right-of-way.
B.
All applications for permits shall be submitted to the Building/Codes Enforcement Officer. The Building/Codes Enforcement Officer shall design and make available standard forms for such application, requiring such information as the City Engineer determines to be necessary, to be consistent with the provisions of this Chapter and applicable law, and to accomplish the purposes of this Chapter. Except as may otherwise be provided by law, the application shall contain the following information:
1.
The name, address, and telephone number of the applicant.
2.
The legal status of the applicant to do the proposed business in this jurisdiction (corporate status, PSC certifications, etc.).
3.
The name, address, and telephone number of a responsible person whom the City may notify or contact at any time concerning the applicant's facilities work in or on the City public rights-of-way.
4.
The name, address, and telephone number of the owner of the facilities if different than the applicant.
5.
An engineering site plan showing the proposed location of the applicant's facilities including manholes or overhead poles; the length, size, type, and proposed depth of any conduit or any other enclosures; and the relationship of the facilities to all existing streets; length of rights-of-way; the number of road crossings and the dimensions and character of any cut or excavation, and the number of square feet to be resurfaced.
6.
Each application should include the projected commencement and termination dates or, if such dates are unknown at the time the permit is issued, a provision requiring the permit holder to provide the Building/Codes Enforcement Officer with reasonable advance notice of such dates once they are determined.
7.
Certificates of insurance providing proof of liability coverage for personal injury and property damage as required herein.
8.
Information sufficient to determine whether the ROW user is subject to other laws relating to franchising, service regulation, payment of compensation for the use of the right-of-way, taxation, or other requirements as permitted by law.
9.
Any additional information that the Building/Codes Enforcement Officer may require which may include such conditions and requirements as are reasonably necessary to protect structures and facilities in the public rights-of-way from damage and for the proper restoration of such public rights-of-way, structures and facilities, and for the protection of the public and the continuity of pedestrian and vehicular traffic.
10.
If the applicant claims an exemption from any requirement in this Chapter, applicant shall include a detailed explanation provision subject to exemption and the facts, legal basis, and documentation supporting such exemption.
C.
Building permits issued by the Building/Codes Enforcement Officer shall include authorization to make and repair individual service connections in the public rights-of-way without the need for a separate right-of-way permit. All repairs to the right-of-way made as a result of individual service connections shall be in accordance with Section 515.040(B) of this Chapter and applicable construction standards adopted by the City.
D.
Each such application shall be accompanied by payment of fees as designated in this Chapter. The Building/Codes Enforcement Officer shall review each application for a permit and, upon determining that the applicant has all requisite authority to perform the desired facilities work, and that the applicant has submitted all necessary information and has paid the appropriate fee, shall issue the permit, except as provided in Subsection (H) hereof.
E.
It is the intention of the City that disruption of the public rights-of-way should be minimized. Upon receipt of an application for a permit, the Building/Codes Enforcement Officer shall do the following:
1.
Evaluate the degree of excavation necessary to perform the facilities work in the right-of-way and determine whether the proposed excavation will be more than minor in nature. The City Engineer shall grant a permit within ten (10) business days for facilities work deemed minor in nature. If the applicant can show to the City Engineer's reasonable satisfaction that the facilities work involves time sensitive maintenance, then the City Engineer shall grant the permit within two (2) business days. In either instance, if the permit is not issued in ten (10) business days, the aggrieved party may appeal to the City Administrator as provided in Subsection (J), unless the applicant is submitting one (1) project application for multiple excavations, constructions or installations; and
2.
For circumstances where the Building/Codes Enforcement Officer determines that the proposed facilities work will not be minor in nature and no exemption under Subsection (E)(1) or any other provisions of this Subsection applies, the Building/Codes Enforcement Officer may, consistent with the time requirements set forth in Subsection (E) and in the permit, direct permit holders performing facilities work in the same area to consult with the Building/Codes Enforcement Officer on how they may schedule and coordinate their work to accomplish the goal of this Section. If the permit is not issued within ten (10) business days, the aggrieved party may appeal to the City Administrator as provided in Subsection (J) of this Section, unless the applicant is submitting one (1) project application for multiple excavations, constructions or installations.
F.
An applicant receiving a permit shall promptly notify the Building/Codes Enforcement Officer of any changes in the information submitted in his/her application.
G.
The Building/Codes Enforcement Officer shall maintain an index of all applicants who have been granted permits and their point(s) of contact.
H.
Any permit granted pursuant to this Chapter shall be deemed to include and be subject to the provisions of this Chapter as fully as if copied therein verbatim.
I.
Permit Denial. The Building/Codes Enforcement Officer may deny an application for a right-of-way permit if:
1.
The ROW user, or any persons acting on behalf of the ROW user, fails to provide all the necessary information requested by the City for managing the public right-of-way.
2.
The ROW user, or any persons acting on behalf of the ROW user, including contractors or subcontractors, has a history of non-compliance or permitting non-compliance within the City. For purposes of this Section, "history of non-compliance, or permitting non-compliance, within the City" shall include the ROW user, or any persons acting on behalf of the ROW user, including contractors or subcontractors, has failed to return the public right-of-way to its previous condition under a previous right-of-way.
3.
The City has provided the ROW user with a reasonable, competitively neutral, and non-discriminatory justification for requiring an alternative method for performing the excavation or work identified in the right-of-way permit application or a reasonable alternative route that will not result in additional installation expense of more than ten percent (10%) to the ROW user or a declination of service quality.
4.
The Building/Codes Enforcement Officer determines that the denial is necessary to protect the public health and safety, provided that the authority of the City does not extend to those items under the jurisdiction of the PSC, such denial shall not interfere with a ROW user's right of eminent domain of private property, if any, and such denials shall only be imposed on a competitively neutral and non-discriminatory basis. In determining whether denial of a right-of-way permit application is necessary to protect the public health and safety, the Building/Codes Enforcement Officer may consider one (1) or more of the following factors:
a.
The extent to which the right-of-way space where the right-of-way permit is sought is available, including the consideration of competing demands for the particular space in the right-of-way, or other general conditions of the right-of-way.
b.
The applicability of any ordinance, Code provision, or other regulations that affect the location of facilities in the right-of-way.
c.
The degree and nature of disruption to surrounding communities and businesses that will result from the use of that part of the right-of-way, including whether the issuance of a right-of-way permit for the particular dates and/or times requested would cause a conflict or interfere with an exhibition, celebration, festival, or any other event.
5.
The area is environmentally sensitive as defined by State Statute or Federal law or is a historic district defined by local ordinance.
6.
The failure to comply with applicable City ordinances or any other reason that would constitute a lawful basis for revocation or denial of a permit to reasonably manage the rights-of-way and protect the public from interference or improper use of the public assets.
J.
The Building/Codes Enforcement Officer may deny an application for the previous listed reasons if deemed in the public's interest.
1.
If a permit is denied due to the location of the planned facilities, the City Engineer will cooperate with the applicant to identify alternative routes which most nearly match the routes requested by applicant for the placement of facilities.
2.
Applicant may appeal any final decision of the Building/Codes Enforcement Officer to the City Administrator, which appeal shall be acted upon by the City Administrator within five (5) business days, and if denied by the City Administrator, the applicant may then appeal to the Board of Aldermen of the City, which shall act upon the appeal within sixty (60) days.
K.
Applicable Fees.
1.
Any fees collected pursuant to this Section will be used only to reimburse the City for costs incurred in managing the activities within the rights-of-way and will not be used to generate revenue to the City above such costs.
a.
Excavation permit fee.
(1)
Thirty-five dollars ($35.00) for work which does not require the removal and/or replacement of sidewalks, curbing or pavement;
(2)
Thirty-five dollars ($35.00) plus ten dollars ($10.00) per linear foot of sidewalk, curbing and pavement to be removed and/or replaced in conjunction with work requiring such.
b.
Annual excavation permit fee for non-exclusive franchisees and owners of facilities that maintain more than one thousand (1,000) lineal feet of facilities within the public right-of-way two hundred fifty dollars ($250.00) plus ten dollars ($10.00) per linear foot of sidewalk, curbing and pavement removed and/or replaced in conjunction with work requiring such.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
The City may, after reasonable notice and an opportunity to cure, revoke a right-of-way permit granted to a ROW-User, without a fee refund, if one or more of the following occurs:
1.
A material violation of a provision of the right-of-way permit, including the violation of any provision of this Chapter or of any additional provisions of a specific permit;
2.
An evasion or attempt to evade any material provision of the right-of-way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the political subdivision or its citizens;
3.
A material misrepresentation of fact in the right-of-way permit application;
4.
A failure to complete excavation or work by the date specified in the right-of-way permit, unless a right-of-way permit extension is obtained or unless the failure to complete the excavation or work is due to reasons beyond the ROW-User's control;
5.
A failure to correct, within the time specified by the City, excavation or work that does not conform to applicable national safety codes, industry construction standards, or applicable City Code provisions or safety codes that are no more stringent than national safety codes or provisions, upon inspection and notification by the City of the faulty condition.
B.
If a right-of-way permit is revoked, the ROW-User shall also reimburse the City for the City's reasonable costs, including administrative costs, restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Oversight Of Facilities Work.
1.
Applicants shall comply with all City codes and ordinances.
2.
Facilities work shall be subject to periodic inspection by the City.
3.
The City Engineer shall have full access to all portions of facilities work and may issue stop work orders and corrective orders to prevent unauthorized work. Such corrective or stop work orders shall state that work not authorized by the permit is being carried out, summarize the unauthorized work and provide a period of not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be ceased to protect the public safety, and may be delivered personally or by certified mail to the address listed on the application for permit or to the person in charge of the construction site at the time of delivery. Such orders may be enforced by equitable action in the Circuit Court of Platte County, Missouri, and if the City prevails in such case, the person involved in the facilities work shall be liable for all costs and expenses incurred by the City, including reasonable attorney's fees, in enforcing such orders, in addition to any and all penalties established in this Chapter.
4.
Any person who engages in facilities work in the public rights-of-way and who has not received a valid permit from the City shall be subject to all requirements of this Chapter. Except in those instances where facilities work must be performed on an emergency basis, the City may, in its discretion, at any time until a permit is secured, order the facilities work ceased and do any of the following:
a.
Require such person to apply for a permit within thirty (30) days of receipt of a written notice from the City that a permit is required;
b.
Require such person to remove its property and restore the affected area to a condition satisfactory to the City; or
c.
Take any other action it is entitled to take under applicable law, including, but not limited to, filing for and seeking damages for trespass.
5.
Records. Owners of facilities that maintain more than one thousand (1,000) lineal feet of facilities within the public rights-of-way shall keep complete and accurate maps and records of the location of their facilities. Applicants that maintain more than one thousand (1,000) lineal feet of facilities within the public rights-of-way shall, within twelve (12) months of the passage of this Chapter, file with the City Engineer a current map of those portions of the owner's/franchisee's system which lie within the public rights-of-way. Maps furnished to the City Engineer shall show the location of facilities and their relationship to existing street or right-of-way. Map updates shall be provided to the City Engineer at the time of payment of the annual excavation permit fee. The information shall be solely for use by the City and no other person may seek to hold ROW-User liable for information obtained from the City from such maps and/or records unless such damage or harm is caused by the owner of the facilities.
6.
Assignment of permit. The rights granted by this Chapter inure to the benefit of applicant. The rights shall not be assigned, transferred, sold or disposed of, in whole or in part, by voluntary sale, merger, consolidation or otherwise by force or involuntary sale without the expressed written consent of the City. Any such consent shall not be withheld unreasonably, and shall not be required for assignment to entities that control, are controlled by, or are under common control with applicant.
7.
Termination of permit and removal of installations. Should any applicant fail to abide by the terms of a permit, the Board of Aldermen may, after thirty (30) days' written notice of breach or default, and after a public hearing in which applicant has been afforded due process terminate a permit if applicant has failed to undertake reasonable steps to cure such default. Upon such termination, the City may order the removal of any of applicant's installations under this permit and if applicant should refuse, the City may remove such installations at applicant's expense.
B.
Construction Standards.
1.
The construction, operation, maintenance, and repair of facilities shall be in accordance with applicable health, safety, and construction codes adopted by the City.
2.
All facilities shall be installed and located with due regard for minimizing interference with the public, including the City and other owners of facilities of the rights-of-way.
3.
Before initiating construction on City streets and public rights-of-way, applicant will make all reasonable efforts to use existing infrastructure for new facilities (i.e., existing poles and conduit, etc.). However an applicant shall not place facilities where they will damage or interfere with the use or operation of previously installed facilities, or obstruct or hinder the various utilities serving the residents and businesses in the City or their use of any public rights-of-way.
4.
Any contractor or subcontractor used for facilities work must be properly licensed under laws of the State and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as an applicant would have hereunder and shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with its permits and applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors, and shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor.
5.
Requirements concerning the restoration and maintenance of the public rights-of-way during and after construction of the facilities work shall conform to the Kansas City Chapter of American Public Works Association's Standard Specifications and Design Criteria as may be amended from time to time.
6.
The standard specifications may be deviated from in special situations where an alternative design is deemed, by the City Engineer, to be necessary or more appropriate under the circumstances to insure conformance with the performance standards underlying the Standard Specifications. The City Engineer shall notify facility owners and contractors of deviations or changes from the standard specifications, at least fifteen (15) days prior to the implementation of the effected project.
C.
Restoration And Guarantee Of Work.
1.
The ROW-User shall be liable for any damages to facilities due to excavation or facilities work performed prior to obtaining the location of all facilities in the area in which the excavation or facilities work is to be performed, or for any damage to facilities that have been properly identified prior to excavation or work. The ROW-User shall not make or attempt to make repairs, relocation or replacement of damaged or disturbed facilities without the approval of the owner of the facilities.
2.
The ROW-User shall be responsible for removing said debris from the right-of-way. If the ROW-User fails to remove debris from the right-of-way, the ROW-User shall be responsible for damages to the City, or its contractors, resulting from such failure and shall indemnify the City and its contractors as provided herein and pay the costs for remedying such failure.
3.
In the event the ROW-User severely disturbs or damages the root structure of any tree or landscaping in the right-of-way to the detriment of the public safety survival of such tree or landscaping, the ROW-User shall be required to remove and replace the landscaping or tree at the ROW-User's cost. Further, in review of the ROW-User's plan, the City Engineer, in his/her discretion, may require the ROW-User to directionally bore in the right-of-way.
4.
After any excavation or work, the ROW-User shall, at its expense, promptly restore all portions of the right-of-way to the same condition or better condition than it was prior to the excavation or work. If the ROW-User fails to restore the right-of-way in the manner and to the condition required by the City Engineer, or fails to satisfactorily and timely complete all restoration, the City, at its option, may perform its own restoration excavation or work and prosecute same to completion, by contract or otherwise. The ROW-User and its surety shall be liable to the City for its actual costs of such restoration, including the value of any time or overtime incurred through the labor of City employees, the value of the use of City equipment, and the cost of City materials used in the restoration project.
5.
In restoring the right-of-way, the ROW-User shall guarantee its excavation or work and shall maintain it for a period of forty-eight (48) months, or for the maximum period of time allowed by law, whichever is greater, following its completion. During said guarantee period the ROW-User shall, upon notification from the City Engineer, correct all restoration excavation or work to the extent necessary, using any method as required by the City Engineer. Said excavation or work shall be completed within a reasonable time, not to exceed thirty (30) calendar days of the receipt of notice from the City Engineer (not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable). In the event the ROW-User is required to perform new restoration pursuant to the foregoing guarantee, the City Engineer shall have the authority to extend the guarantee period for such new restoration for up to an additional forty-eight (48) months, or other greater period allowed by law, from the date of the new restoration, if the City Engineer determines there was action by the ROW-User not to comply with the conditions of the right-of-way permit and any restoration requirements. The guarantee period shall be applicable to failure of the pavement surface as well as failure below the pavement surface.
Except as provided in this Section, each ROW-User shall provide, at its sole expense, and maintain during the term of an agreement or franchise commercial general liability insurance with a reputable, qualified, and financially sound company licensed to do business in the State of Missouri, and unless otherwise approved by the City, with a rating by Best of not less than "A," that shall protect the ROW-User, the City, and the City's officials, officers, and employees from claims which may arise from operations under an agreement or franchise, whether such operations are by the ROW-User, its officers, directors, employees and agents, or any subcontractors of the ROW-User. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all ROW-User operations, products, services or use of automobiles, or construction equipment. The amount of insurance for Single Limit Coverage applying to Bodily and Personal Injury and Property Damage shall be at least two million five hundred thousand dollars ($2,500,000.00), but in no event less than the individual and combined sovereign immunity limits established by Section 537.610, RSMo., for political subdivisions; provided that nothing herein shall be deemed to waive the City's sovereign immunity. An endorsement shall be provided which states that the City is listed as an additional insured and stating that the policy shall not be cancelled or materially modified so as to be out of compliance with the requirements of this Section, or not renewed without thirty (30) days' advance written notice of such event being given to the City Administrator. The insurance requirements in this Section or otherwise shall not apply to a ROW-User to the extent and for such period during an agreement or franchise as ROW-User is exempted from such requirements pursuant to 67.1830(6)(a) and has on file with the City Clerk an affidavit certifying that ROW-User has twenty-five million dollars ($25,000,000.00) in net assets and is otherwise therefore so exempted unless otherwise provided by agreement or franchise. The City reserves the right to waive any and all requirements under this Section when deemed to be in the public interest.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Performance Bond.
1.
Prior to any facilities work in the public rights-of-way, an applicant shall establish in the City's favor a performance bond or other surety in the penal sum of two thousand dollars ($2,000.00), approved by the City Clerk, and in proper form approved by the City Attorney. Owners of facilities that maintain more than one thousand (1,000) lineal feet of facilities within the public right-of-way and franchisees shall establish in the City's favor a performance bond or other surety in the penal sum of five thousand dollars ($5,000.00), approved by the City Clerk, and in proper form approved by the City Attorney. Differences in bond requirements, including provisions for self-insurance or provisions for a single continuing bond where facilities work is conducted by the same applicant under numerous permits, may be established by regulation based on the extent or nature of the facilities work, the past performance of the applicant and not based on the characteristics of the applicant.
In the event an applicant fails to complete the facilities work in a safe, timely, and competent manner or fails to satisfy the guarantee of such work as provided herein, the City shall be entitled to recover, jointly and severally from the principal and surety of the bond, any damage or loss suffered by the City as a result, plus a reasonable allowance for attorneys' fees.
2.
Upon completion of the facilities work to the satisfaction of the City Engineer, the City Engineer shall eliminate the bond or reduce its amount after such time appropriate to determine whether the work performance was satisfactory, which time shall be established by the City Engineer considering the nature of the work performed, and which may allow for reasonable bond amounts to remain to secure the guarantee requirement. In any event, the entire bond shall be released timely after the expiration of guarantee period; provided the ROW-User has satisfied the guarantee requirements.
3.
A performance bond shall be issued in a form of surety acceptable to the City, and shall contain an endorsement substantially as follows:
"This bond may not be canceled, or allowed to lapse until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."
4.
Recovery by the City of any amounts under the performance bond does not limit an applicant's duty to indemnify the City in any way, nor shall such recovery relieve or limit an applicant of its obligations under a permit or reduce the amounts owed to the City other than by the amounts recovered by the City under the performance bond, or in any respect prevent the City from exercising any other right or remedy it may have.
B.
Cost Recovery.
1.
In the event that an excavation is not refilled within a reasonable time after it is ready for refilling, the City Engineer shall notify the applicant making the excavation that if such excavation is not filled within four (4) days, it shall be filled by the City. The charge for the cost of such work shall be paid by the permit holder within ten (10) days after completion and no additional permit shall be issued to that person after that time, unless such charge has been paid.
2.
In the event that the applicant fails to backfill, repair or repave any excavations made within the public rights-of-way, the City shall, at its option, repair said cut with City employees forces or contract the repair to be made, and charge the applicant for the full contract cost of repair. If the City makes the repair with City employees forces the charges shall be based on the unit price paid on the most recent Street Improvement or Pavement Repair Contract issued by the City Engineer.
3.
In the event the City incurs additional costs as a direct result of an unauthorized action or an inaction by any person and/or owner of facilities, the City shall have the right to recover from that person or owner any and all documentable costs incurred, including, but not limited to the identification of undocumented facilities, completion of improper facilities work, long-term structural damage, construction delay fees and penalties, fees paid to other agencies and any other documentable costs incurred by the City within the rights-of-way.
C.
Exemption. If a ROW-User has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance, or permitting non-compliance, within the City, then the ROW-User shall not be required to maintain a performance or maintenance bond but shall be deemed liable directly for payment under the same obligations as if a bond had been required.
D.
Penalties. For each violation of provisions of this Chapter, or a permit granted pursuant to this Chapter as to which the City has given notice to applicant as provided in this Chapter, penalties may be chargeable to the applicant at a rate not exceeding one hundred dollars ($100.00) per day for so long as the violation continues.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Whenever the City shall in its exercise of the public interest request of the ROW-User the relocation or reinstallation of any of its facilities, ROW-User shall forthwith remove, relocate, or reinstall any such property as may be reasonably necessary to meet the request and the cost of such relocation, removal, or reinstallation of the facilities shall be the exclusive obligation of said ROW-User without expense to the City. ROW-User shall upon request of any other person requesting relocation of facilities and holding a validly issued building or moving permit of the City, and within forty-eight (48) hours prior to the date upon which said person intends to exercise its rights under said permit, ROW-User shall thereupon temporarily raise, lower, or relocate its wires or other facilities as may be required for the person to exercise the rights under the permit, and ROW-User may require such permit holder to make payment in advance for any expenses incurred by said ROW-User pursuant to said person's request.
B.
If any facilities are not relocated in accordance with this Section and within the reasonable time frames required by the City, the City or its contractors may relocate the facilities and the ROW-User and its surety shall be liable to the City for any and all costs incurred by the City.
[Ord. No. 1310 §§1, 3, 7-9-2003]
A.
Compliance With Laws. Each applicant shall comply with all applicable Federal and State laws as well as City ordinances, resolutions, rules and regulations heretofore and hereafter adopted or established.
B.
Applicant Subject To Other Laws, Police Power.
1.
An applicant shall at all times be subject to all lawful exercise of the Police powers of the City, including but not limited to all powers regarding zoning, supervision of the restoration of the right-of-way, and control of public rights-of-way.
2.
No action or omission of the City shall operate as a future waiver of any rights of the City under this Chapter.
3.
Except where rights are expressly granted or waived by a permit, they are reserved, whether or not expressly enumerated. This Chapter may be amended from time to time and in no event shall this Chapter be considered a contract between the City and an applicant such that the City would be prohibited from amending any provision hereof.
C.
Construction Of Applicable Federal, State And City Law. This Chapter shall be construed in a manner consistent with all applicable Federal, State, and local laws. Notwithstanding any other provisions of this Chapter to the contrary, the construction, operation and maintenance of the ROW-User's facilities shall be in accordance with all laws and regulations of the United States, the State and any political subdivision thereof, or any administrative agency thereof, having jurisdiction. In addition, the ROW-User shall meet or exceed the most stringent technical standards set by regulatory bodies, including the City, now or hereafter having jurisdiction. The ROW-User's rights are subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety, and welfare of the public. The ROW-User shall comply with all applicable laws and ordinances enacted pursuant to that power. The failure of the ROW-User to comply with any applicable law or regulation may result in a forfeiture of any permit, or authorization granted in accordance with this Chapter.
D.
Indemnification. As a condition of use of the rights-of-way, ROW-User at its sole cost and expense, shall indemnify, protect, defend (with counsel acceptable to the City) and hold harmless the City, its elected officials, officers, employees, and agents, from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all costs and expenses of any kind, including, without limitation, reasonable attorney's fees and costs of defense arising, directly or indirectly, in whole or in part, out of the fact that the City approved an agreement or franchise with ROW-User, the rights granted to ROW-User, or the activities performed, or failed to be performed, by ROW-User under any approval or by use of the rights-of-way, or otherwise, except to the extent arising from or caused by the sole or gross negligence or willful misconduct of the City, its elected officials, officers, employees, agents or contractors. This indemnification shall survive the expiration or termination of any agreement or use of the rights-of-way for a period of five (5) years after the effective date of expiration or termination.
E.
Rights And Remedies.
1.
The exercise of one remedy under this Chapter shall not foreclose use of another, nor shall the exercise of a remedy or the payment of damages or penalties relieve an applicant of its obligations to comply with its permits. Remedies may be used alone or in combination; in addition, the City may exercise any rights it has at law or equity.
2.
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provisions of this Chapter.
3.
No applicant shall be relieved of its obligation to comply with any of the provisions of this Chapter by reason of any failure of the City to enforce prompt compliance.
4.
The City reserves unto itself every right and power which is required to be reserved by a provision of any ordinance under any agreement, franchise, permit or other authorization granted under this Chapter, and as may be authorized by Sections 67.1830 — 67.1846, RSMo., and other authority applicable to regulation of the use of the rights-of-way.
F.
Advertising, Signs Or Extraneous Markings. A ROW-User shall not place or cause to be placed any sort of signs, advertisements or other extraneous markings, whether relating to ROW-User or any other person or entity on the public right-of-way, except such necessary minimal markings as approved by the City as are reasonably necessary to identify the facilities for service, repair, maintenance or emergency purposes, or as may be otherwise required to be affixed by applicable law or regulation.
G.
Tree Protection. Unless otherwise approved in writing by the City, or as part of an approved tree trimming plan, or in the attachment, installation, removal, reattachment, reinstallation, relocation or replacement or otherwise of the facilities, ROW-User shall neither remove, cut, nor damage any trees, or their roots, in and along the streets, alleys and public places of the City. Tree trimming and pruning may be permitted to occur only after prior written notice to the City of the extent of trimming and pruning to be performed and the prior written approval thereof by the City. The type and extent of trimming and pruning shall be in accordance with the requirements of the City.
H.
Antennae And Wireless Communications Equipment. Towers, antennae, antennae structures and ground-mounted wireless communications equipment shall not be placed in the right-of-way except as may be permitted by the City's ordinances and regulations relating to placement of wireless communications antennae, structures and towers, and only with prior agreement approved by the Board establishing such conditions as to the design, number, location, and compensation or reimbursement of costs, if any, and other reasonable considerations. All such decisions shall be made on a competitively neutral and non-discriminatory manner.
I.
Taxes And Fees. ROW-Users shall be responsible for all applicable business license taxes, sales taxes, occupation taxes, franchise fees or taxes, property taxes, other similar taxes, permit fees and other right-of-way management costs.
J.
Force Majeure. An applicant shall not be deemed in violation of provisions of this Chapter where performance was rendered impossible by war or riots, civil disturbances, floods, or other natural catastrophes beyond the applicant's control, and a permit shall not be revoked or an applicant penalized for such non-compliance, provided that the applicant takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with its permit without unduly endangering the health, safety, and integrity of the applicant's employees or property, the public, public rights-of-way, public property, or private property.
K.
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this Chapter or any permit, and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.
L.
Severability. If any term, condition, or provision of this Chapter shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision that has been held invalid is no longer invalid, said provisions shall thereupon return to full force and effect without further action by the City and shall thereafter be binding on the applicant and the City.
M.
Eminent Domain. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, any right the City may have to acquire the property of the applicant through the exercise of the power of eminent domain.
N.
Standards Applicable To City. Any standards in this Chapter relating to facilities work shall be fully applicable to work performance by the City and its departments.
O.
Rights In The Event Of Abandonment. In the event that the Governing Body of the City closes or abandons any right-of-way, which contains the facilities of the applicant, installed hereunder, any land contained in such closed or abandoned right-of-way shall be subject to the rights of the applicant.
P.
Savings Clause. Nothing contained herein shall in any manner be deemed or construed to alter, modify, supersede, supplement, or otherwise nullify any other ordinances of the City or requirements thereof, whether or not relating to in any manner connected with the subject written hereof, unless expressly provided otherwise herein or hereafter.
Q.
Appeals. Unless otherwise provided herein or by any other governing ordinance or law, any person aggrieved by a decision made pursuant to this Chapter shall, prior to seeking any judicial relief, file a written appeal of any such decision with the Board of Aldermen within fifteen (15) days of such decision specifying this provision and including specific details of the alleged claim or grievance, and an evidentiary hearing shall be held on such appeal. Nothing herein shall deny any other applicable appeal remedy that may be granted by Federal or State law.
[Ord. No. 1905, 11-19-2019]
A.
Applicability. To the extent permitted by law, this Section shall apply to all Persons desiring to construct, operate, or maintain Small Wireless Facilities within the City. Any existing ordinances that are not consistent with this Section, applicable State and Federal law, including, without limitation, Sections 67.5090 to 67.5103, RSMo., Sections 67.1830 to 67.1846, RSMo., and the Declaratory Ruling and Third Report and Order adopted by the FCC on September 26, 2018 (FCC 18-133) are hereby superseded
B. ANTENNA APPLICABLE CODES APPLICABLE LAW APPLICANT APPLICATION CITY UTILITY POLE COLLOCATE or COLLOCATION DECORATIVE POLE FEE HISTORIC DISTRICT MICRO WIRELESS FACILITY SMALL WIRELESS FACILITY PERMIT RATE RIGHT-OF-WAY SMALL WIRELESS FACILITY1. 2.
TECHNICALLY FEASIBLE UTILITY POLE WIRELESS FACILITY1. 2. 3. 4. WIRELESS INFRASTRUCTURE PROVIDER WIRELESS PROVIDER WIRELESS SERVICES WIRELESS SERVICES PROVIDER WIRELESS SUPPORT STRUCTURE WIRELINE BACKHAUL FACILITY
Definitions and Usage — General. For the purposes of this Section, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense and vice versa, words in the plural number include the singular number and vice versa, and masculine gender includes the feminine gender and vice versa. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated or contrary to the context, terms, phrases, words, and abbreviations not defined herein shall be given the meaning set forth in Sections 67.5110 to 67.5121, RSMo., and if not defined therein, the City Code, and, if not defined therein, their common and ordinary meaning. For further convenience, the first letter of terms, phrases, words, and abbreviations defined in this Section have been capitalized, but an inadvertent failure to capitalize such letter shall not affect its meaning, nor shall the inadvertent capitalization of the first letter of a term, phrase, word or abbreviation not defined herein affect the meaning thereof.
Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.
Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to such codes enacted to prevent physical property damage or reasonably foreseeable injury to persons.
State and Federal laws and regulations applicable to the construction, installation, deployment or Collocation of Wireless Facilities and Utility Poles, including those laws and regulations of general applicability that do not apply exclusively to Wireless Facilities or Wireless Providers such as local ordinances and State law relating to the use of Right-of-Way.
Any person who submits an application and is a wireless provider.
A request submitted by an applicant to the City for a permit to collocate small wireless facilities on a utility pole or wireless support structure, or to approve the installation, modification, or replacement of a utility pole.
Means a utility pole, as defined below, owned, managed, or operated by or on behalf of the City; except municipal electric utility distribution poles or facilities; which are excluded from the definition of City Utility Pole under State law, and neither the Act nor this Section sets forth the rates, fees, terms and conditions applicable to attachments by Wireless Providers to municipal electric utility poles or facilities. Pole attachment arrangements between a municipal electric utility and an unrelated party, such as a Wireless Provider, are governed by a pole attachment agreement between the parties.
To install, mount, maintain, modify, operate, or replace small wireless facilities on or immediately adjacent to a wireless support structure or utility pole, provided that the small wireless facility antenna is located on the wireless support structure or utility pole.
A City Utility Pole that is specially designed and placed for aesthetic purposes.
A one-time, non recurring charge.
A group of buildings, properties, or sites that are either listed in the National Register of Historic Places or formally determined eligible for listing by the Keeper of the National Register, the individual who has been delegated the authority by the Federal agency to list properties and determine their eligibility for the National Register, in accordance with Section VI.D.I.a.i-v of the Nationwide Programmatic Agreement codified at 47 C.F.R. Part 1, Appendix C, or are otherwise located in a district made subject to special design standards adopted by a local ordinance or under State law as of January 1, 2018, or subsequently enacted for new developments.
A small wireless facility that meets the following qualifications:
A written authorization from a designated City official required by the City to collocate Small Wireless Facilities in or outside the Right-of-Way, or to install, replace, maintain or operate a Utility Pole inside the Right-of-Way for any purpose; Such permits shall comply with the requirements of Section 67.5113.3, RSMo., providing that permits for the installation of Utility Poles must be of general applicability and may not apply exclusively to wireless facilities.
A recurring charge.
The area on, below, or above a public roadway, highway, street, sidewalk, alley, or similar property used for public travel, but not including a Federal interstate highway, railroad right-of-way, or private easement.
A wireless facility that meets both of the following qualifications:
Each wireless provider's antenna could fit within an enclosure of no more than six (6) cubic feet in volume; and
All other equipment associated with the wireless facility, whether ground or pole mounted, is cumulatively no more than twenty-eight (28) cubic feet in volume, provided that no single piece of equipment on the utility pole shall exceed nine (9) cubic feet in volume; and no single piece of ground mounted equipment shall exceed fifteen (15) cubic feet in volume, exclusive of equipment required by an electric utility or municipal electric utility to power the small wireless facility.
The following types of associated ancillary equipment shall not be included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs and related conduit for the connection of power and other services. |
By virtue of engineering or spectrum usage, the proposed placement for a small wireless facility or its design or site location can be implemented without a reduction in the functionality of the small wireless facility.
A pole or similar structure that is or may be used in whole or in part by or for wireline communications, electric distribution, lighting, traffic control, signage, or a similar function, or for the collocation of small wireless facilities.
Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including equipment associated with wireless communications and radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. The term includes small wireless facilities. The term does not include:
The structure or improvements on, under, or within which the equipment is collocated;
Coaxial or fiber-optic cable between wireless support structures or utility poles;
Coaxial or fiber-optic cable not directly associated with a particular small wireless facility; or
A wireline backhaul facility.
Any person, including a person authorized to provide telecommunications service in the State, that builds or installs wireless communication transmission equipment or wireless facilities but that is not a wireless services provider.
A wireless infrastructure provider or a wireless services provider.
Any services using licensed or unlicensed spectrum, including the use of wifi, whether at a fixed location or mobile, provided to the public using wireless facilities.
A person who provides wireless services.
An existing structure, such as a monopole or tower, whether guyed or self-supporting, designed to support or capable of supporting wireless facilities; an existing or proposed billboard; an existing or proposed building; or other existing or proposed structure capable of supporting wireless facilities, other than a structure designed solely for the collocation of small wireless facilities. Such term shall not include a utility pole.
A physical transmission path, all or part of which is within the right-of-way, used for the transport of communication data by wire from a wireless facility to a network.
C.
General Standards.
1.
Neither the City, nor any person owning, managing, or controlling City Utility Poles, shall enter into an exclusive arrangement with any person for use or management of the Right-of-Way for the Collocation of Small Wireless Facilities or the installation, operation, marketing, modification, maintenance, management, or replacement of City Utility Poles within the Right-of-Way, or for the right to attach to such City Utility Poles within the Right-of-Way.
2.
The City, in applying the provisions of this Section, will act in a competitively neutral manner with regard to other users of the Right-of-Way.
3.
Nothing in this Code limits the ability of the City to require an Applicant to obtain one (1) or more permits of general applicability that do not apply exclusively to Wireless Facilities in addition to the Permit required by this Section in order to Collocate a Small Wireless Facility or install a new, modified, or replacement Utility Pole associated with a Small Wireless Facility.
4.
The City may require a Permit under Applicable Codes, existing City ordinances, or this Section, with reasonable conditions, for work in a Right-of-Way that will involve excavation, affect traffic patterns, obstruct traffic in the Right-of-Way, or materially impede the use of a sidewalk.
5.
A Small Wireless Facility must comply with reasonable, objective, and cost effective concernment or safety requirements determined by the City.
6.
Subject to Sections of this Code, and except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R. Section 1307(a)(4) of the Federal Communications Commission rules, the City may require reasonable, technically feasible, non-discriminatory, and technologically neutral design or concealment measures, published in advance, for Small Wireless Facilities or Utility Poles placed in a Historic District. Any such design or concealment measures shall not have the effect of prohibiting any Wireless Provider's technology, nor shall any such measures be considered a part of the Small Wireless Facility for purposes of the size restrictions in the definition of Small Wireless Facility.
7.
Right-of-Way users, upon adequate notice and at the facility owner's own expense, shall relocate facilities as may be needed in the interest of public safety and convenience.
8.
Except as otherwise provided in the City Code and Applicable Law, in reviewing applications for Small Wireless Facilities, Wireless Support Structures and Utility Poles, the City will exercise zoning, land use, planning, and permitting authority within its territorial boundaries.
9.
Nothing in this Code shall be interpreted to impose any new requirements on cable providers for the provision of such service.
10.
Small Wireless Facilities or Utility Poles constructed or operational before August 28, 2018, which were approved by the City by permit or agreement may remain installed and be operated under the requirements of this Code.
D.
Permitting Provisions.
1.
Permit Requirements — Inside the Right-of-Way.
a.
Any Person desiring to Collocate Small Wireless Facilities, or to install, replace, maintain or operate a Utility Pole, inside the Right-of-Way must first apply for and obtain a Permit, in addition to any other required permit, license, or authorization that is generally applicable and does not apply exclusively to Wireless Facilities.
b.
The Collocation of Small Wireless Facilities and the installation, maintenance, modification, operation, and replacement of Utility Poles along, across, upon, and under the Right-of-Way is not subject to zoning review or approval; except that the placement of new or modified Utility Poles in the Right-of-Way in areas zoned single-family residential or as historic as of August 28, 2018, remain subject to any applicable zoning requirements that are consistent with Sections 67.5090 to 67.5103, RSMo., and Sections 410.360 — 410.410 of the City Code.
c.
Small Wireless Facilities and Utility Poles shall be installed and maintained so as not to obstruct or hinder the usual travel, including pedestrian travel, or public safety on the Right-of-Way or obstruct the legal use of the Right-of-Way by the City or other authorized Right-of-Way users.
d.
A new, replacement, or modified Utility Pole installed in the Right-of-Way shall not be subject to zoning requirements so long as the Utility Pole does not exceed the greater of ten (10) feet in height above the tallest existing Utility Pole in place as of January 1, 2019, located within five hundred (500) feet of the new Utility Pole in the same Right-of-Way, or fifty (50) feet above ground level. A new, modified, or replacement Utility Pole that exceeds these height limits shall be subject to applicable City zoning requirements that apply to other Utility Poles, and that are consistent with Sections 67.5090 to 67.5103, RSMo., and Sections 410.360 — 410.410 of the City Code.
e.
New Small Wireless Facilities in the Right-of-Way shall not extend more than ten (10) feet above an existing Utility Pole in place as of August 28, 2018.
f.
Small Wireless Facilities on a new Utility Pole shall not extend above the height permitted for a new Utility Pole in Subsection (D)(1)(d) above.
g.
A Wireless Provider shall be permitted to replace Decorative Poles when necessary to Collocate a Small Wireless Facility, but any replacement pole shall reasonably conform to the design aesthetics of the Decorative Pole or Poles being replaced. The term "reasonably conform" as used herein, shall mean that the design aesthetics of the replacement pole shall be as nearly identical to the Decorative Pole replaced as is feasible. The City Engineer or other designated position is authorized to determine if the replacement pole reasonably conforms, based upon the reasonable objective design standards published in advance by the City.
h.
The City may require replacement of a City Utility Pole that is proposed to be used for Collocation on a non-discriminatory basis for reasons of safety and reliability, including a demonstration that the Collocation would make the City Utility Pole structurally unsound.
2.
Permit Requirements — Outside the Right-of-Way.
b.
The City will allow Collocation of Small Wireless Facilities on City Wireless Support Structures and City Utility Poles that are located on City property outside the right-of-way to the same extent, if any, that it allows access to such structures for other commercial projects or uses. Any such Collocations shall be subject to reasonable and non-discriminatory rates, fees, and terms as provided in an agreement between the City and the Wireless Provider, and not otherwise governed by this Code.
c.
The City shall not enter into an exclusive agreement with a Wireless Provider concerning City Utility Poles or City Wireless Support Structures that are located on City property outside the Right-of-Way, including stadiums and enclosed arenas, unless the agreement meets the following requirements:
(1)
The Wireless Provider provides service using a shared network of Wireless Facilities that it makes available for access by other Wireless Providers on reasonable and non-discriminatory rates and terms that shall include use of the entire shared network, as to itself, an affiliate, or any other entity; or,
(2)
The Wireless Provider allows other Wireless Providers to Collocate Small Wireless Facilities on reasonable and non-discriminatory rates and terms, as to itself, an affiliate, or any other entity.
d.
An Applicant seeking to Collocate Small Wireless Facilities in or outside the Right-of-Way, or to install, replace, maintain or operate a Utility Pole inside the Right-of-Way, must first submit an Application for a Permit to the City Planning Officer. The City Planning Officer shall make available to Applicants a standard Application form, consistent with the provisions of this Section which all Applicants must use in order to accomplish the purposes of this Section. Except for the requirements per this Code, an Applicant shall not be required to provide more information to obtain a Permit under this Code than other communications service providers that are not Wireless Providers.
3.
An Application for a Permit shall include the following;
a.
Construction and engineering drawings which demonstrate compliance with the criteria;
b.
An attestation that the Small Wireless Facilities comply with the volumetric limitations in the definition of Small Wireless Facility;
c.
Information on the height of any new, replacement, or modified Utility Pole;
d.
Applicable indemnity, insurance, performance bond information as required herein;
e.
An Applicant that is not a Wireless Services Provider must provide evidence of agreements or plans demonstrating that the Small Wireless Facilities will be operational for use by a Wireless Services Provider within one (1) year after the Permit issuance date, unless the City and the Applicant agree to extend this period or if the Applicant notifies the City the delay is caused by lack of commercial power or communications transport facilities. An Applicant that is a Wireless Services Provider must provide this information by attestation.
f.
Plans and detailed cost estimates for any make-ready work as needed.
g.
The Applicant shall be solely responsible for the cost of any make-ready work; and
h.
Projected commencement and termination dates for the Permit, or if such dates are unknown at the time the Permit is issued, a provision requiring the Permit holder to provide City Engineer or other designated position with reasonable advance notice of such dates once they are determined.
E.
Fees And Rates. Each such Application shall be accompanied by payment of fees as designated in this Section with such fees to comply with the requirements of Section 67.5116.4(3), RSMo.
1.
General.
a.
Any fees collected pursuant to this Subsection will be used only to reimburse the City for its actual incurred costs and will not be used to generate revenue to the City above such costs.
b.
The City may not require or accept in-kind services in lieu of any fee.
c.
The rates to Collocate on City Utility Poles shall be non-discriminatory regardless of the services provided by the Collocating Applicant.
2.
Application Fee.
a.
The total fee for an Application for the Collocation of a Small Wireless Facility on an existing City Utility Pole is one hundred dollars ($100.00) per Small Wireless Facility.
b.
An Applicant filing a consolidated Application shall pay one hundred dollars ($100.00) per Small Wireless Facility included in the consolidated Application.
c.
The total fee for an Application for the installation, modification, or replacement of a Utility Pole and the Collocation of an associated Small Wireless Facility is five hundred dollars ($500.00) per Utility Pole.
3.
Right-of-Way Permit Fee.
a.
The total fee for a Right-of-Way permit associated with the installation of Small Wireless Facilities in the Right-of-Way is as established in the City's General Right-of-Way ordinance with the addition of such fees as may be associated with City Street Cut permits as may be required. Such fees shall comply with the requirements and limitations established by State law and Federal regulations.
F.
Timing For Processing Of An Application.
1.
Within fifteen (15) days of receiving an Application, the City shall determine and notify the Applicant, in writing, whether the Application is complete. If an Application is incomplete, the City shall specifically identify the missing information in writing. The processing deadline in Subdivision (2) of this Subsection is tolled from the time the City sends the notice of incompleteness to the time the Applicant provides the missing information. That processing deadline may also be tolled by agreement of the Applicant and the City.
2.
The City shall process and approve or deny an Application for Collocation of a Small Wireless Facility within forty-five (45) days of receipt of the Application. The Application shall be deemed approved if not approved or denied within this forty-five (45) day period.
3.
The City shall process and approve or deny an Application for installation of a new, modified, or replacement Utility Pole associated with a Small Wireless Facility within sixty (60) days of receipt of the Application. The Application shall be deemed approved if not approved or denied within this sixty (60) day period.
4.
An Applicant may file a consolidated Application and receive a single Permit for the Collocation of multiple Small Wireless Facilities.
a.
An Application may include up to twenty (20) separate Small Wireless Facilities; provided that they are for the same or materially the same design of Small Wireless Facility being Collocated on the same or materially the same type of Utility Pole or Wireless Support Structure, and geographically proximate. The Application shall provide information sufficient for the [City Engineer or other designated position] to determine whether the Applicant has met the requirements of this Subsection. The [City Engineer or other designated position] shall have discretion to determine whether the Application meets the requirements of this Subsection.
b.
If the City receives individual Applications for approval of more than fifty (50) Small Wireless Facilities or consolidated Applications for approval of more than seventy-five (75) Small Wireless Facilities within a fourteen (14) day period, whether from a single Applicant or multiple Applicants, the City may, upon its own request, obtain an automatic thirty (30) day extension for any additional Collocation or replacement or installation Application submitted during that fourteen (14) day period or in the fourteen (14) day period immediately following the prior fourteen (14) day period. The City will promptly communicate its request to each and any affected Applicant.
c.
The denial of one (1) or more Small Wireless Facilities in a consolidated Application shall not delay processing or constitute a basis for denial of any other Small Wireless Facilities in the same consolidated Application or the consolidated Application as a whole.
5.
The City shall provide a good faith estimate for any make-ready work necessary to enable a City Utility Pole to support the requested Collocation by a Wireless Provider, including pole replacement if necessary, within sixty (60) days after receipt of a complete Application. Make-ready work, including any pole replacement, shall be completed within sixty (60) days of written acceptance of the good faith estimate and advance payment, if required, by the Applicant.
6.
An Application that is not acted on within the specified time period is deemed approved.
7.
For any Application denied:
a.
The City shall document the complete basis for a denial in writing, and send the documentation to the Applicant on or before the day the City denies the Application.
b.
The Applicant may cure the deficiencies identified by the City and resubmit the Application within thirty (30) days of the denial without paying an additional application fee.
c.
The City shall approve or deny the revised Application within thirty (30) days. Any subsequent review shall be limited to the deficiencies cited in the denial.
8.
The City will not institute, either expressly or de facto, a moratorium on filing, receiving, or processing Applications or issuing Permits or other approvals, if any, for the Collocation of Small Wireless Facilities or the installation, modification, or replacement of Utility Poles to support Small Wireless Facilities.
a.
If doing so would be consistent with 47 U.S.C. §253(a), particularly as interpreted by the FCC's Declaratory Ruling adopted on August 2, 2018, (FCC 18-111), the City may institute a temporary moratorium on Applications for Small Wireless Facilities and the Collocation thereof for no more than thirty (30) days in the event of a major and protracted staffing shortage that reduces the number of personnel necessary to receive, review, process, and approve or deny applications for the Collocation of Small Wireless Facilities by more than fifty percent (50%).
G.
Denial Of An Application. An Application for a proposed collocation of a Small Wireless Facility or installation, modification, or replacement of a Utility Pole otherwise meeting the requirements of Subsection (D) may be denied if the action proposed in the Application could reasonably be expected to:
1.
Materially interfere with the safe operation of traffic control equipment or City-owned communications equipment;
2.
Materially interfere with sight lines or clear zones for transportation, pedestrians, or non-motorized vehicles;
3.
Materially interfere with compliance with the Americans with Disabilities Act, or similar Federal or State standards regarding pedestrian access or movement;
4.
Materially obstruct or hinder the usual travel or public safety on the Right-of-Way;
5.
Materially obstruct the legal use of the Right-of-Way by the City, utility, or other third party;
6.
Fail to comply with Applicable Codes, including nationally recognized engineering standards for Utility Poles or Wireless Support Structures;
7.
Fail to comply with the reasonably objective and documented aesthetics of a Decorative Pole and the Applicant does not agree to pay to match the applicable decorative elements;
8.
Fail to comply with reasonable and non-discriminatory under-grounding requirements contained in City ordinances as of January 1, 2018, or subsequently enacted for new developments, that require all utility facilities in the area to be placed underground and prohibit the installation of new or the modification of existing Utility Poles in a Right-of-Way without prior approval, provided that such requirements include a waiver or other process of addressing requests to install such Utility Poles and do not prohibit the replacement or modification of existing Utility Poles consistent with Applicable Law or the provision of Wireless Services; or
9.
Any other reason not prohibited by Applicable Law.
H.
Approval Of An Application.
1.
The City Planning Officer shall review each Application for a Permit and, upon determining that: 1) the Applicant has submitted all necessary information; 2) there is no basis under Subsection (F) to deny the Application; and 3) the Applicant has paid the appropriate Fee, the [City Engineer or other designated position] shall issue the Permit.
2.
If the City approves an Application, the Applicant is authorized to:
a.
Undertake the installation or Collocation;
b.
Operate and maintain the Small Wireless Facilities and any associated Utility Pole covered by the Permit for a period of not less than ten (10) years, which shall be renewed for equivalent durations so long as they are in compliance with the criteria listed in this Section.
c.
The City may approve a Permit subject to a reservation to reclaim space on the Utility Pole, when and if needed, to meet the Utility Pole owner's core utility purpose or a documented City plan projected at the time of the Application.
I.
No Application Required.
1.
Routine maintenance on previously permitted Small Wireless Facilities;
2.
The replacement of Small Wireless Facilities with Small Wireless Facilities that are the same or smaller in size, weight, and height; or
3.
The installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between Utility Poles in compliance with Applicable Codes.
A person performing the permitted acts under this Subsection may be required to provide the City with a description of any new equipment installed so that the City may maintain an accurate inventory of the Small Wireless Facilities at a particular location.
J.
Construction Standards.
1.
The construction, operation, maintenance, and repair of Small Wireless Facilities shall be in accordance with Applicable Codes and relevant City ordinances pertaining to construction, operation, maintenance, and repair inside or outside the Right-of-Way.
2.
All Small Wireless Facilities shall be installed and located with due regard for minimizing interference with the public and with other users of a Right-of-Way, including the City.
3.
An Applicant shall not place Small Wireless Facilities where they will damage or interfere with the use or operation of previously installed facilities, or obstruct or hinder the various utilities serving the residents and businesses in the City of their use of any Right-of-Way.
4.
Any and all Rights-of-Way disturbed or damaged during the construction of Small Wireless Facilities shall be promptly repaired or replaced by the Applicant to its functional equivalence as existed before the disturbance or damage.
5.
Any Wireless Infrastructure Provider, contractor or subcontractor must be properly licensed under the laws of the State and all applicable local ordinances.
6.
Each Wireless Infrastructure Provider, contractor or subcontractor shall have the same obligations with respect to its work as Wireless Services Provider would have hereunder and Applicable Law if the work were performed by the Wireless Services Provider. The Wireless Services Provider shall be responsible for ensuring that the work of Wireless Infrastructure Providers, contractors or subcontractors is performed consistent with their Permits and Applicable Law, and shall be responsible for promptly correcting any acts or omissions by a Wireless Infrastructure Provider, contractor or subcontractor.
K.
Indemnity, Insurance, Performance Bonds.
1.
Indemnity.
a.
Wireless Providers shall indemnify and hold the City, its officers and employees harmless against any damage or personal injury caused by the negligence of the Wireless Provider or its employees, agents, or contractors.
2.
Insurance. City shall require any wireless provider or wireless infrastructure provider or any third party contractor working in the City right-of-way to comply with City business license, liability insurance and workman's compensation insurance requirements as established in business license Section of the City Code, in addition to the provision of liability insurance stated below:
a.
As part of the Permit process, a Wireless Provider must provide proof of liability insurance coverage against any damage or personal injury caused by the negligence of the Wireless Provider or its employees, agents, or contractors. The Wireless Provider's liability insurance policy must name the City or its officers and employees as additional insureds.
b.
In the alternative, a Wireless Provider must demonstrate that it has in effect a comparable self-insurance program.
3.
Exemption.
a.
Applicants that have at least twenty-five million dollars ($25,000,000.00) in assets in the State and do not have a history of permitting non-compliance within the City's jurisdiction shall be exempt from the insurance and bonding requirements otherwise required by this Section, except for those requirements necessary to obtain a business license to operate in the City. The City may require an Applicant to provide proof by affidavit that its assets meet or exceed this requirement at the time of filing the Application.
L.
Miscellaneous Provisions.
1.
Compliance With Laws. Each Applicant shall comply with all applicable City ordinances, resolutions, rules and regulations heretofore and hereafter adopted or established, to the extent that they are consistent with State and Federal law.
2.
Franchises Not Superseded. Nothing herein shall be deemed to relieve an Applicant of the provisions of an existing franchise, license or other agreement or permit.
3.
Rights And Remedies.
a.
The exercise of one (1) remedy under this Section shall not foreclose use of another, nor shall the exercise of a remedy or the payment of damages or penalties relieve an Applicant of its obligations to comply with its Permits.
Remedies may be used alone or in combination; in addition, the City may exercise any rights it has at law or equity.
b.
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provisions of this Section.
c.
No Applicant shall be relieved of its obligation to comply with any of the provisions of this Section by reason of any failure of the City to enforce prompt compliance.
4.
Incorporation By Reference. Any Permit granted pursuant to this Section shall by implication include a provision that shall incorporate by reference this Section into such Permit as fully as if copied herein verbatim.
5.
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this Section or any Permit, and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.
6.
Severability. If any term, condition, or provision of this Section shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in Applicable Law so that the provision that has been held invalid is no longer invalid, said provisions shall there upon return to full force and effect without further action by the City and shall thereafter be binding on the Applicant and the City.
M.
Annexation. The provisions hereof shall specifically apply to any lands or property annexed as the date of such annexation.
N.
Relocation Of Facilities. Whenever, by reason of changes in the grade or widening of a street or in the location or manner of constructing a water pipe, drainage channel, sewer, or other City-owned underground or above ground structure, it is deemed necessary by the City, in the interest of public safety and convenience, to move, alter, or change the location of underground or above ground facilities of a Wireless Provider, the Wireless Provider shall relocate such facilities, on alternative Right-of-Way provided by the City, if available, upon adequate notice in writing by the City, without claim for reimbursement or damages against the City.
O.
Standards Applicable To City. Any standards in this Section relating to Small Wireless Facilities shall be fully applicable to work performed by the City and its departments.
P.
Savings Clause. Nothing contained herein shall in any manner be deemed or construed to alter, modify, supersede, supplement or otherwise nullify any other ordinances of the City or requirements thereof, whether or not relating to or in any manner connected with the subject written hereof, unless expressly provided otherwise herein or hereafter.