[Ord. No. 2374 §1, 2-17-2004; Ord. No. 2566 §3, 10-16-2007]
Every provider and ROW user, as defined in Section 670.090, shall be subject to and comply with the additional or supplementary terms and conditions of the "ROW ordinance", as may be amended from time to time, which is incorporated herein by reference and such provisions and the provisions of this Code shall be deemed a condition of any franchise and agreement. The provisions of this Article shall also apply to providers and ROW users to the full extent permitted by law and additionally to all construction activities in public utility easements. For purposes of this Article, the term "provider" shall also include all ROW users.
[Ord. No. 2566 §3, 10-16-2007]
A. 
Requirements Of Agreement Or Franchise.
1. 
Agreement or franchise required.
a. 
Franchise. Except where otherwise authorized or required 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. A franchise shall be obtained in conformance will 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.
b. 
ROW agreement. A ROW agreement shall be required for all other ROW users, except as provided herein or otherwise required by law. Such agreements shall conform to all applicable law and requirements, including as provided in Article II of Chapter 670 for ROW users providing communications services, if applicable, 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 in substantially the form approved.
c. 
Incidental uses. Incidental uses of the rights-of-way may be permitted without franchise or rights-of-way use agreement pursuant to a special use permit issued by the Commissioner of Public Works. The Commissioner may establish such application, requirements and conditions applicable to such uses consistent with the purposes of this Article or as otherwise established by law.
2. 
Franchises and agreements non-exclusive — approval. The authority granted by the City in any agreement or franchise shall be for non-exclusive 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. All franchises and agreements shall be approved by ordinance of the Board of Aldermen 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 Article and other applicable laws of the City, except as may be expressly stated in such agreements and franchises.
3. 
Lease required for public lands. Unless otherwise provided, use or installation of any facilities in, on or over non-right-of-way public lands of the City 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 as the City may require.
4. 
Transferability. Except as provided in this Section 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 ordinance. The City shall not unreasonably withhold its consent to transfer as provided herein.
B. 
Application For Franchise Or Agreement Required.
1. 
Application. An application for franchise or right-of-way agreement shall be presented to the Commissioner in writing and shall include all such information as is provided for in this Section. The ROW user shall be responsible to accurately maintain 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 to the City required herein.
2. 
Application fee. An application fee for review, documentation and approval of such agreement or franchise shall be established by the Commissioner 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 pay such additional amount prior to issuance of any final City approval after written notice from the City. Nothing herein shall be construed to prohibit the City from also charging reasonable compensation for use of the 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 right-of-way agreement on such form provided by the City, which shall include information necessary to determine compliance with this Code including, but not limited to:
a. 
Identity and legal status of the ROW user.
b. 
Name, address, telephone number, fax number and email address of each officer, agent or employee responsible for the accuracy of the application. Each officer, agent or employee shall be familiar with the local facilities of the ROW user, shall be the person(s) to whom notices shall be sent and shall be responsible for facilitating all necessary communications including, but not limited to, certification to the City of any material changes to the information provided in such completed application during the term of any agreement.
c. 
Name, address, telephone number, fax number and e-mail address of the local representative of the ROW user who shall be available at all times to act on behalf of the ROW user in the event of an emergency.
d. 
Proof of any necessary permit, license, certification, grant, registration, franchise agreement or any other authorization required by any appropriate governmental entity including, but not limited to, the FCC or the Public Service Commission.
e. 
Description of the ROW user's intended use of the right-of-way, including such information as to proposed services as to determine the applicable Federal, State and local regulatory provisions as may apply to such user.
f. 
A list of authorized agents, contractors or subcontractors eligible to obtain permits on behalf of the ROW user. An application may be updated to add such person at the time of permit application if the updated application is submitted by an authorized representative of the ROW user.
g. 
Information sufficient to determine the amount of net assets of the ROW user.
h. 
Information sufficient to determine whether the ROW user is subject under applicable law to franchising, service regulation, payment of compensation for the use of the right-of-way, taxation or other requirements of the City.
i. 
Such other information as may be reasonably required by the City to determine requirements and compliance with applicable regulation.
4. 
Approval process. After submission by the right-of-way user of a duly executed and completed application and deposit fee and executed franchise or right-of-way agreement as may be provided by the Commissioner or as modified by the Commissioner in review of the specific circumstances of the application, all in conformity with the requirements of this Article and all applicable law, the Commissioner shall submit such agreement to the Board of Aldermen for approval. Upon determining compliance with this Article, the Board of Aldermen shall authorize execution of the form franchise or right-of-way agreement (or a modified agreement otherwise acceptable to the City consistent with the purposes of this Article) and such executed franchise or agreement shall constitute consent to use the 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 non-discriminatory manner reflect the distinct engineering, construction, operation, maintenance or public work or safety requirements applicable to the applicant.
[Ord. No. 2374 §1, 2-17-2004]
A. 
At least thirty (30) days before the beginning of any installation, removal or relocation of its facilities, the provider shall submit detailed plans of the proposed action to the City Engineer. The City Engineer shall, within thirty (30) days of receipt of such plans, either approve the plans or inform the provider of the reasons for disapproval. The provider shall designate a responsible contact person with whom representatives of the City Engineer can communicate with on all matters relating to facilities installation and maintenance.
1. 
Prior to any excavation within the rights-of-way, the provider shall obtain a permit, pay all applicable fees and perform such work in accordance with applicable provisions of the City ROW Ordinance and any subsequent ordinances or regulations that may be adopted by the City regarding excavation work.
2. 
The provider shall post a bond with the City in accordance with the City's ordinances in an amount determined by the City Engineer to guarantee the timeliness and quality of any construction, repair and restoration work, including damage to public or private property, and to guarantee the removal of its facilities from the City's rights-of-way should such removal be required upon the expiration of an agreement.
3. 
Prior to the commencement of any construction or alteration of its facilities located in the rights-of-way, the provider shall furnish to the City Engineer a subsurface utility engineering study on the proposed route of construction, expansion or alteration which shall consist of the following tasks:
a. 
Readily available plans, plats and other location data indicating the existence and approximate location of all facilities along the proposed construction route;
b. 
Completion of a visual survey and written record of the location and dimensions of any above-ground features of any underground facilities along the proposed construction route including, but not limited to, manholes, valve boxes, utility boxes, posts and visible street cut repairs;
c. 
Plot and incorporate the data obtained from completion of task (1) and (2) above onto the provider's proposed system route maps, plan sheets and computer aided drafting and design (CADD) files; and
d. 
Provide all such data collected into a CADD file (or other format as may be identified by the City Engineer) compatible with that used by the City Engineer and deliver a copy to the City Engineer.
[Ord. No. 2374 §1, 2-17-2004]
Each licensee or franchisee shall maintain and file with the City updated maps, in such form as may be required by the City Engineer, providing the location and sufficient detail of all facilities existing in the rights-of-way on the effective date of any agreement or franchise and those reasonably anticipated to be installed in each six (6) month period subsequent to the initial and updated filing and such other related information as required by the City Engineer. Such maps shall be updated and kept current with the City.
[Ord. No. 2374 §1, 2-17-2004]
Provider shall construct and maintain its facilities so as not to interfere with other users of the rights-of-way. Except as may otherwise be provided, the provider shall, prior to commencement of work, execute a City-approved resident-notification plan to notify residents affected by the proposed work. All construction and maintenance by provider or its subcontractors shall be performed in accordance with industry standards.
[Ord. No. 2374 §1, 2-17-2004]
Provider shall not place or cause to be placed any sort of signs, advertisements or other extraneous markings, whether relating to provider or any other person or entity on the public rights-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.
[Ord. No. 2374 §1, 2-17-2004]
Unless otherwise approved in writing by the City in the attachment, installation, removal, reattachment, reinstallation, relocation or replacement or otherwise of the facilities, provider 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.
[Ord. No. 2374 §1, 2-17-2004]
Prior to its installation of any facilities in the rights-of-way and after it provides the City with its proposed plans for the facilities, the City may in its discretion designate certain locations or facilities in the rights-of-way to be excluded from use by provider for its facilities, including, but not limited to ornamental or similar specially-designed street lights or other facilities or locations which in the reasonable judgment of the City Engineer do not have electrical service adequate or appropriate for the provider's facilities or cannot safely bear the weight or wind loading thereof or any other facility or location that in the reasonable judgment of the City Engineer is incompatible with the proposed facilities or would be rendered unsafe or unstable by the installation. The City Engineer may further exclude certain other facilities that have been designated or planned for other use or are not otherwise available for use by provider due to engineering, technological, proprietary, legal or other limitations or restrictions as may be reasonably determined by the City. In the event such exclusions conflict with the reasonable requirements of the provider, the City will cooperate in good faith with provider to attempt to find suitable alternatives, if available, provided that the City shall not be required to incur financial cost nor require the City to acquire new locations for Provider.
[Ord. No. 2374 §1, 2-17-2004]
The design, location and nature of all facilities shall be subject to the review and approval of the City Engineer. Such review shall be based on non-discriminatory bases in application of City policy and approvals shall not be unreasonably withheld. Except as provided herein, all facilities constructed after the date of an agreement shall be placed underground. Antenna or other facilities may be located above ground only if approved by the City Engineer for good cause and including as may be specifically authorized in an Exhibit attached hereto. Unless extraordinary circumstances exist, good cause shall not include authorization for above-ground facilities requiring new poles or major modification to existing above-ground structures. Above-ground pedestals, vaults, antennae or other facilities may be installed only if approved by the City where alternative underground facilities are not feasible or where underground requirements are otherwise waived pursuant to the provisions of this Subsection. Existing conduit shall be used where feasible and available. The location, design and requirements for antennae in the rights-of-way shall additionally be subject to all specific ordinances, regulations or policies of the City generally applicable to the siting of antennae. Where reasonable and appropriate and where adequate public rights-of-way exists, the provider shall place above-ground facilities underground in conjunction with City capital improvement projects and/or at specific locations requested by the City provided that such placement is practical, efficient and economically feasible. Unless specifically authorized herein or otherwise by the City, antennae/towers having a height of forty (40) feet or greater located on the rights-of-way or antennae on other City-owned or controlled property shall not be authorized by an Agreement, but shall require a separate lease or use agreement with the City. City height limitations, applicable zoning restrictions and general City policies with regard to all users of the rights-of-way shall also be applicable to all facilities. The City Engineer may establish such regulations or policies as may be deemed necessary or appropriate to effect this provision.
[Ord. No. 2374 §1, 2-17-2004]
Provider shall, prior to any excavation or installation within the rights-of-way, provide sufficient notification and joint installation opportunity on a shared-cost basis to potential users of the rights-of-way as may be provided for by separate City policy. Such notification and adopted policies shall be designed to maximize collocation of providers to minimize the disturbance to the rights-of-way and maximize its useable capacity. Provider shall not install new conduit or other facilities in the rights-of-way where existing conduit is available to provider that would reasonably avoid the need for new excavation or overhead installations. Provider shall identify by mapping, as required by the City Engineer, the location and specifications of all conduit available or dedicated for collocation. Any person unreasonably failing to respond to collocation opportunities or otherwise comply with this provision or policies adopted hereunder shall, unless good cause is found by the City, be precluded from use of the rights-of-way for a period of thirty (30) months at such locations that would reasonably have been accommodated by the collocation opportunity that was declined. Where Service is to be provided to new subdivisions or construction, providers may be required to use conduit or other previously installed facilities and reimburse the developer pursuant to a reimbursement and specifications policy adopted by the City.
[Ord. No. 2374 §1, 2-17-2004]
If any provider chooses to make its facilities physically available for use by any other provider, it shall do so only under terms that are fair and reasonable, competitively neutral and non-discriminatory and which do not prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service under the circumstances. Provider shall further comply with the facilities attachment requirements of Federal law codified at 47 U.S.C. Section 224.
[Ord. No. 2374 §1, 2-17-2004]
Except if contrary to governing law, when provider installs any new conduit, the provider shall, if so directed in writing as part of any permit approval, simultaneously install sufficient additional conduit or other related facilities ("excess conduit") as may be determined by the City Engineer and in order to reasonably meet the needs of existing and future users of the rights-of-way. The criteria for when such conduit will be required, the amount of conduit to be required, management and ownership of the excess conduit and financing of the excess conduit and related matters shall be established by a separate City policy. Such policy shall be publicly available and each agreement shall be deemed subject to such applicable policies adopted or as may be amended. The excess conduit shall be designed and installed in accordance with City specifications. The City may reserve for its own purposes a portion of any excess conduit dedicated to the City, but shall make available any portion not so reserved to any and all subsequent providers (or others as determined by the City) on a non-discriminatory basis for fair and reasonable compensation that shall be paid in addition to the franchise or use fees. When sections of provider's conduit are installed simultaneously with another provider, the cost of such sections of excess conduit shall also be cost shared among each provider as may be established by policy. The requirements herein shall be administered and applied so as not to create an obstacle to entry in the market and on a competitively neutral and non-discriminatory basis to maximize the available space in the rights-of-way and designed to minimize the total number of excavations and cost of total communications infrastructure installation. No linear foot charge shall apply to any excess conduit installed by provider and dedicated to the City.
[Ord. No. 2374 §1, 2-17-2004]
Upon expiration of an agreement whether by lapse of time, by agreement between the provider and the City or by forfeiture thereof, the provider shall remove, at its sole cost, from public property any and all of its facilities that are the subject of an agreement within a reasonable time after such expiration, not to exceed ninety (90) days and it shall be the duty of provider immediately upon such removal to restore the rights-of-way from which the facilities are removed to as good condition as the same were before the removal was effected and as required by the City. Provider shall further, unless otherwise consented to by the City, remove all facilities that have not been used for a period of more than one (1) year. Notwithstanding the foregoing, upon request of provider, the City may allow underground facilities to be left in place when it is not practical or desirable to require removal.
[Ord. No. 2374 §1, 2-17-2004]
Whenever the City shall in its exercise of the public interest request of the provider the relocation or reinstallation of any of its facilities, provider 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 provider. Provider 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, provider 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 provider may require such permit holder to make payment in advance for any expenses incurred by said provider pursuant to said person's request.
[Ord. No. 2374 §1, 2-17-2004]
The provider shall have no damages remedy or monetary recourse whatsoever against the City for any loss, cost, expense or damage arising from any of the provisions or requirements of any agreement or because of the enforcement thereof by said City or for the failure of said City to have the authority to grant all or any part of the herein granted; provided that said provider expressly acknowledges that it accepted the rights herein granted in reliance upon its independent and personal investigation and understanding of the power of authority of said City to enter into the agreement herein with provider; provided further, that the provider acknowledges by its acceptance of said agreement that it has not been induced to enter into an agreement upon any understanding or promise, whether given verbally or in writing by or on behalf of said City or by any other person concerning any term or condition of an agreement not expressed herein; provided further, that the provider acknowledges by the acceptance of an agreement that it has carefully read the provisions, terms and conditions hereof and is willing to and does accept all of the risk attendant to said provisions, terms and conditions. Nothing herein shall preclude provider from seeking injunctive or declaratory judgment relief against the City where such relief is otherwise available and the requirements therefor are otherwise satisfied; provided however, that the validity of an executed agreement shall not be subject to challenge.
[Ord. No. 2374 §1, 2-17-2004]
The provider shall be responsible for all reasonable costs borne by the City that are directly associated with provider's installation, maintenance, repair, operation, use and replacement of its facilities within the rights-of-way that are not otherwise accounted for as part of the permit fee established pursuant to the ROW ordinance. All such costs shall be itemized and the City's books and records related to these costs shall be made available upon request to the provider. Provider shall be responsible for its own costs incurred removing or relocating its facilities when required by the City due to City requirements relating to maintenance and use of the rights-of-way for City purposes. Permit and inspection fees may be charged by the City consistent with applicable law.
[Ord. No. 2374 §1, 2-17-2004]
During the term of an agreement, the provider shall obtain and maintain at the provider's sole expense all insurance and bonds required by the ROW ordinance or applicable agreement or franchise. Nothing contained in this Code shall limit the provider's liability to the City to the limits of insurance certified or carried.