Editor's Note: Former Chapter 550, Excavations, containing Sections
550.010 through 550.210, which derived from Ord. No.
4959 §1, 3-11-1991 and Ord. No. 7516 §2, 4-8-2013, was repealed 5-13-2019 by Ord. No. 8182.
[Ord. No. 8182, 5-13-2019]
A.
Applicability. Except as provided for herein and where limited by
applicable law, this Chapter shall apply to all Excavations and use,
construction, operation, and Maintenance of Facilities or structures,
in the ROW of the City. No Person shall commence or continue with
the operation of any Facilities or structures in the ROW except as
provided and in compliance with this Chapter. Because numerous types
of users and uses of the ROW may be subject to various or changing
regulatory schemes under Federal or State law, any such limitation
or qualification that may be applicable to less than all users and
uses of the ROW are not duplicated herein, but are nevertheless incorporated
herein, whenever application is so required by law, including but
not limited to applicable provisions of Chapter 67, RSMo., and other
applicable State and Federal law.
B.
Preemption. No provision of this Chapter shall apply to any circumstance
in which such application shall be unlawful under superseding Federal
or State law and furthermore, if any Section, Subsection, sentence,
clause, phrase, or portion of this Chapter is now or in the future
superseded or preempted by State or Federal law or found by a court
of competent jurisdiction to be unauthorized, such provision shall
be automatically interpreted and applied as required by law.
[Ord. No. 8182, 5-13-2019]
For purposes of this Chapter, the following terms, phrases,
words, and their derivatives shall have the meanings set forth in
this Section, unless the context clearly indicates that another meaning
is intended.
Any equipment materials, apparatuses, devices, or Facilities
that are:
Declared abandoned by the owner of such equipment or Facilities;
No longer in active use for a period of six (6) months or more,
and the owner of such equipment or Facilities fails to respond within
thirty (30) days to a written notice sent by the City;
The owner allows a franchise, agreement or license to expire
and fails to cure within thirty (30) days after notice; or
As otherwise may be defined by applicable law.
Any device that transmits and/or receives electromagnetic
wireless radio waves or signals for voice, data or video communications
purposes, including, but not limited to, television, text, AM/FM radio,
microwave, cellular telephone, Communications Service, or otherwise.
Any Person who has applied for a ROW Use Agreement, Franchise,
License, ROW Permit, or any permit or other authorization to install,
maintain, repair or otherwise physically access Facilities in the
ROW.
Any Facilities located in the ROW and owned by the City.
The transmission via Facilities, in whole or in part, of
any writings, signs, signals, pictures, sounds or other forms of intelligence
through wire, wireless, or other means, including, but not limited
to, any telecommunications service, enhanced service, information
service, or internet service, as such terms are now, or may in the
future be, defined under applicable law, and including all instrumentalities,
Facilities, apparatus (Communications Facilities), and services (among
other things, the receipt, forwarding, and delivery of Telecommunications)
incidental to such transmission or designed to directly or indirectly
facilitate or accept such transmission and shall also include "video
services" as defined in Section 67.2677, RSMo. The term "Communications
Service" does not include the rental of conduit or physical Facilities.
The Director of Public Works of the City of Maryville, who
shall be the principal City official responsible for administration
of this Chapter, or his/her designee.
A permit authorizing Excavation for the construction or installation
of Facilities in the City's Rights-of-Way. An "Excavation Permit"
may also be referred to as a "Dig Permit" elsewhere in this Code or
within City documents.
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 as excluded by applicable law.
The remaining volume or capacity in any existing or future
duct, conduit, manhole, handhold or other Facility, including dark
fiber, in the ROW that is used, or authorized by the ROW User to be
used, by others.
The construction, installation, repair, upgrade, or other
physical access to the Facility in the ROW that does not involve Excavation.
A permit issued by the City for the ROW User to provide Maintenance
to its Facilities or otherwise perform work in the ROW that does not
involve Excavation but requires physical access to the Facilities
in the ROW.
Any equipment, installation, or structure located in the
Rights-of-Way, including without limitation, cables, wires, lines,
poles, towers, Antenna, conduit facilities, vaults, pedestals, transmitters,
meters, fiber, foundations, and any other equipment, infrastructure,
structures or obstruction. Facilities shall not include mailboxes,
lawful vehicular parking or use or lawful minor incidental uses such
as driveway aprons, private utility connections or other incidental
Facilities which may be permitted by License issued by the Director
as provided herein.
A binding and accepted ordinance for certain ROW Users to
occupy the Rights-of-Way for the purpose of providing, transporting,
or distributing electricity, gas, water, steam, lighting, energy,
or sewer service to any Person or area in the City's limits and
boundaries.
The executed agreement between the City and a Person to use
and occupy the Rights-of-Way for the purpose of installing incidental
temporary Facilities within the Rights-of-Way or incidental uses such
as ingress and egress Facilities, lateral utility lines, or driveway
aprons.
An Excavation Permit or a Facilities Maintenance Permit.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
A Person does not have its own Facilities in the Rights-of-Way,
but instead uses the Rights-of-Way by interconnecting with or using
the network elements of another ROW User utilizing the Rights-of-Way,
and/or by leasing excess capacity from an entity having Facilities
in the Rights-of-Way with no right to physically access the Facilities
or ROW.
The area on, below, or above a public roadway, highway, street
or alleyway in which the City has an ownership interest or right of
management, and including such adjacent areas within such public ways
within such City control, except as may be limited by law.
A document granting consent by the City to use the ROW for
the purpose of providing Communications Service or for such other
use for which a Franchise or License is not applicable and obtained
as provided for herein.
All Persons and entities, whether a PSC registered utility
or otherwise, owning, controlling, leasing, maintaining, using or
installing Facilities in the Rights-of-Way of the City, not otherwise
expressly exempted. To the extent permitted by law, ROW User shall
not include the City, or Reseller Service Provider.
[Ord. No. 8182, 5-13-2019]
A.
ROW Use Agreement, License, Or Franchise Required. Except where otherwise
authorized or required by applicable law, no Person may own, control,
lease, use, or install Facilities or other structures in the Rights-of-Way
without a Franchise, License, or ROW Use Agreement all subject to
the requirements of this Chapter and issued by the City as provided
herein and as follows:
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 the purpose of providing, transporting or distributing
electricity, gas, water, steam, lighting, energy, or sewer service
to any Person or area in the City's limits and boundaries.
2.
ROW Use Agreement. A ROW Use Agreement shall be required for
all other ROW Users, except as provided herein or otherwise required
by law. A ROW Use Agreement shall conform to all applicable laws and
requirements, including as provided herein, but shall not be subject
to procedures applicable to Franchises.
3.
License For Incidental Uses. Persons desiring to install an
incidental use, which includes installation of temporary structures
or minor incidental uses in the Rights-of-Way, such as driveway aprons,
ingress or egress facilities, and similar incidental uses, that utilize
a small area of the Rights-of-Way and serves the principal structure,
may be permitted without a Franchise or Rights-of-Way Use Agreement
pursuant to a License issued by the Director. The Director shall have
discretion to establish such application, requirements, and conditions
applicable to such uses consistent with the purposes of this Chapter
or as otherwise established by law. The Applicant shall be required
to pay an application fee and an inspection and/or permit fee as established
by the City. Any Person granted a License hereunder shall be subject
to the applicable requirements of this Chapter. Unless otherwise stated
in the License, a License shall be for a one-year term and shall be
revocable at any time on written notice in the public interest by
the City.
B.
Grant And Nature Of Approval; Terms And Compensation. The authority
granted by the City in any ROW Use Agreement, License, or Franchise
shall be for non-exclusive use of the Rights-of-Way. Such grant does
not in any way limit the continuing authority of the City through
the proper exercise of its statutory powers to adopt and enforce ordinances
necessary to provide for the health, safety, and welfare of the public.
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 laws. The granting of any ROW
Use Agreement, License or Franchise by the City shall not be deemed
to create any property interest of any kind in favor of the ROW User
nor shall it create any relationship of agency, partnership, joint
venture, or employment between the parties. Licenses may be approved
by the Director on a non-discriminatory basis provided that the Person
is in compliance with all applicable requirements. Each Franchise,
License, and ROW Use Agreement shall include terms of use and be deemed
to incorporate the terms of this Chapter and other applicable laws
of the City, except as may be expressly stated in such ROW Use Agreement,
License or Franchise. The City may require compensation for use of
the ROW or other public property as may be reasonably required by
the City Council, subject to applicable law.
C.
Condition Precedent To Permit. Unless otherwise required by applicable
law, no Permit may be issued unless or until such Person has a valid
Franchise, License or Rights-of-Way Use Agreement with the City that
authorizes that Person's use of the Rights-of-Way. Unless prohibited
by applicable law, in addition to any other reason provided herein,
the Director may deny a ROW Permit to any person that does not have
a valid Franchise, ROW Use Agreement, or License with the City.
D.
Transferability. Except as provided in this Chapter or as otherwise
required by law, no Franchise, ROW Use Agreement, License, or Permit
may be transferred or assigned without the written application to
and consent of the City based on the requirements and policies of
this Chapter. The City shall not unreasonably withhold its consent
as provided herein, but any costs incurred shall be paid by the ROW
User to the extent not prohibited by applicable law. In the case of
the City granting consent to transfer, the transferee shall be subject
to the terms and conditions of this Chapter.
E.
Use Of City Or Third-Party Facilities. No ROW Use Agreement, Franchise,
or License shall grant the right to use Facilities owned or controlled
by the City or a third party, and no such use shall occur, nor shall
any Franchise, ROW Use Agreement or License excuse such Person from
first obtaining a pole attachment agreement or other express consent
for such right or use before locating on the Facilities controlled
or owned by the City or a third party.
F.
Lease Required For Public Lands. Unless otherwise provided, use or
installation of any Facilities in non-Rights-of-Way public property
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.
G.
No Warranties. The City makes no express or implied representation
or warranty regarding its rights to authorize the installation or
construction of Facilities on any particular segment of Rights-of-Way
and shall not be liable for any damages therefrom. The burden and
responsibility for making all such determinations in advance of construction
or installation shall be entirely upon the ROW User. The ROW User
shall be solely liable for any damages to Facilities or other property
due to Excavation, Facilities Maintenance, or other work performed
prior to obtaining the location of all Facilities that have been properly
identified prior to such work or around. 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.
H.
Forfeiture Of Agreement And Privilege. In case of failure on the
part of the ROW User, including its successors and assigns, to comply
with any of the provisions of this Chapter or a ROW Use Agreement,
Franchise, or License, or if the ROW User, its successors and assigns
should do or cause to be done any act or thing prohibited by or in
violation of this Chapter or the terms of the authorization of such
use, or otherwise loses authority to provide its service in the City,
the ROW User, its successors and assigns shall forfeit all rights
and privileges permitted by any ROW Use Agreement, Franchise, or License,
and all rights hereunder shall cease, terminate and become null and
void, provided that said forfeiture shall not take effect until the
City shall carry out the following proceedings: Before the City declares
the forfeiture or revocation of a Rights-of-Way Use Agreement, Franchise,
or License, it shall first serve a written notice upon the Person
setting forth in detail the neglect or failure complained of, and
the Person shall have thirty (30) days thereafter, or such other reasonable
period established by the Director, in which to cure the default by
complying with the conditions of such ROW Use Agreement, Franchise,
or License and fully remedying any default or violation. If at the
end of such period the City determines that the conditions have not
been complied with and that the Person did not reasonably and in the
public interest require more than the establish time to cure the default,
the City shall take action by an affirmative vote of the City Council
present at the meeting and voting to terminate the ROW Use Agreement,
Franchise, or License, setting out the grounds upon which said authorization
is to be forfeited or revoked. Nothing herein shall prevent the City
from invoking any other remedy or from declaring immediate forfeiture
where the default is incapable of being cured by the ROW User, including
where such defaults or violations have repeatedly occurred.
I.
No Waiver. No action or omission of the City shall operate as a future
waiver of any rights of the City under this Chapter. Except where
rights are expressly granted or waived by a ROW Permit, ROW Use Agreement,
Franchise, or License they are reserved, whether or not expressly
enumerated.
[Ord. No. 8182, 5-13-2019]
A.
Application Form. An application for a Franchise or ROW Use Agreement
shall be provided to the City on City forms and shall include all
such information as is required by this Chapter and as determined
necessary by the Director. The ROW User shall be responsible for accurately
maintaining the information in the application during the term of
any Franchise or ROW Use 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.
B.
Application Deposit Fee. An application deposit of five hundred dollars
($500.00), or such other amount determined to be required, shall be
submitted with the application, which shall be utilized to at least
partly offset the City's costs in reviewing and issuing an agreement,
consistent with applicable law provided that no costs shall be included
if such inclusion is prohibited by applicable law as to that Person;
any amount not used by the City for its actual lawfully reimbursable
costs will be refunded upon request after execution of a ROW Use Agreement
or Franchise. If applicable, the applicant shall be obligated to reimburse
the City for its reasonable expenses associated with the review, negotiation,
and adoption of an appropriate ROW Use Agreement or Franchise that
may exceed the application deposit.
C.
Standard For Approval Or Renewal. In reviewing an application for
a new or renewal ROW Use Agreement or Franchise, the City may consider
prior conduct of the Person in performance of its obligations or compliance
with the City's ordinances in the past, or the existence of any
outstanding violations or deficiencies. The City may deny or condition
any ROW Use Agreement or Franchise where the proposed use would interfere
with the public use of the Rights-of-Way or otherwise conflict with
the legitimate public interests of the City to fulfill the requirements
and objectives of this Chapter or as otherwise provided by law. All
ROW Use Agreements or Franchises by ordinance or resolution of the
City Council and applications shall be decided on a non-discriminatory
basis and shall be approved, conditioned or denied based on compliance
with all applicable requirements herein, and conformance with applicable
law and the public interest.
D.
Approval Process. After submission by the Applicant of a duly executed
and completed application, deposit fee, and executed Franchise or
Rights-of-Way Use Agreement as may be provided by the Director or
as modified by the Director in review of the specific circumstances
of the application, all in conformity with the requirements of this
Chapter and all applicable laws, the Director shall submit such Agreement
to the City Council for approval. Upon determining compliance with
this Chapter, the City Council may authorize execution of the Franchise
or ROW Use Agreement (or a modified Agreement otherwise acceptable
to the City consistent with the purposes of this Chapter) and such
executed Franchise or ROW Use 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 ROW Use
Agreement submitted to the City to the extent 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, public
work, or safety requirements applicable to the Person or use.
[Ord. No. 8182, 5-13-2019]
A.
ROW User Authority; Obligations. A ROW User is authorized, subject
to other applicable requirements, to sell or transfer use of Excess
Capacity to Reseller Service Providers or other entities, provided
that such entity either: (1) has no right to and does not physically
access the Facilities while in the ROW; or (2) has a separate Franchise
or ROW Use Agreement or other written agreement or consent authorizing
the same with the City. In the event of such sale or transfer to a
Reseller Service Provider, the ROW User shall notify the City of the
same prior to such action so that the City can review compliance regarding
doing business in the City. This notice shall not relieve the Reseller
Service Provider from its own obligation to register, pay taxes, and
obtain any necessary authorization from the City.
B.
Registration Of Reseller Service Providers And Exempt Entities.
1.
Reseller Service Provider Registration. Prior to providing service
(including sale or transfer of product or service) within the City
or acquiring or using Excess Capacity through Facilities in the City,
Reseller Service Providers shall register with the City the intent
to do so and shall include: (1) identity of the Reseller Service Provider
and certification of the applicable regulatory approval necessary
to undertake such service; (2) the name of the provider(s) owning
the Facilities within the City through which the service shall be
transmitted; (3) name, address, telephone number, and email address
of an officer, agent or employee responsible for the accuracy of the
registration, and contact information for a person to speak on behalf
of the Reseller Service Provider, if different; and (4) such other
information as requested by the Director. It shall be unlawful for
any Reseller Service Provider to have its own Facilities in the Rights-of-Way,
have the right to physically access the Facilities in the Rights-of-Way,
or to transmit service for commercial purposes through any Facility
owned by a Person without a valid Franchise, Rights-of-Way Use Agreement,
or other City authorization for such Facilities. It shall be the duty
of a Reseller Service Provider to report any changes to its registration
information within thirty (30) days of such change.
2.
Exempt Entity Registration. Prior to providing service within the City, transmitting communications through Facilities in the City, or constructing in the Rights-of-Way, entities not required to obtain a Franchise, License, or Rights-of-Way Use Agreement due to superseding Federal or state law, shall nevertheless be required to register with the City by providing the City the information required by the Rights-of-Way application in Section 550.130. It shall be the duty of such exempt entity to report any changes to such registration information within thirty (30) days of such change.
C.
Reseller Service Provider Obligations. Any Reseller Service Provider
that buys or leases Excess Capacity or other services for resale from
a ROW User, shall be subject to the terms and conditions of this Chapter,
including the requirement to first register with the City and obtain
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 City, Public
Service Commission or the Federal Communications Commission. If a
Person through such lease or purchase owns Facilities in the Rights-of-Way
or has the right to physically access or maintain any Facilities in
the Rights-of-Way, then such Person no longer meets the definition
of a Reseller Service Provider and is required to first obtain a Franchise,
License, or Rights-of-Way Use Agreement as required herein.
[Ord. No. 8182, 5-13-2019]
A.
Excavation Permit Required. Except as otherwise provided herein,
no ROW User or other Person shall perform Excavation work in the ROW
without an Excavation Permit. Any Person desiring to Excavate in the
ROW shall first apply for an Excavation Permit, on an application
form provided by the City, and submit the application fee and pay
all applicable fees to obtain an Excavation Permit, in addition to
any other building permit, license, easement, or other authorization
required by law, unless such Excavation must be performed on an emergency
basis as provided herein. The cost of said Permit shall be set out
by the Director. The Director is authorized to draft an application
form consistent with the requirements of this Chapter. An Excavation
Permit should be obtained for each project unless otherwise provided
for in this Chapter. A separate special permit or lease shall be required
for Excavation in or use of any real property interest of the City
that is not ROW. It shall be unlawful for any Person to perform Excavation
work within the City at any time other than from 6:00 A.M. to 9:00
P.M., Monday through Friday, without prior approval from the City,
except in the case of an emergency. No work shall be performed during
City holidays, except in the case of an emergency. All Excavation
Permits shall expire after one hundred-eighty (180) days from the
date of issuance, unless otherwise specified in the Excavation Permit.
An Applicant whose Excavation Permit application has been withdrawn,
abandoned or denied for failure to comply with this Chapter shall
not be refunded the application fee.
B.
Local Representative Designation. Each ROW User shall designate a
local person familiar with the Facilities that shall act as a local
agent for the ROW User and shall be responsible for satisfying information
requirements of this Chapter. The ROW User shall present to the City
the agent's name, address, telephone number, and email address.
The agent shall be the person to whom relocation notices and other
such notices shall be sent, and with whom rests the responsibility
to facilitate all necessary communications. The ROW User shall be
responsible for all costs incurred by the City due to the failure
to provide such information to the City.
C.
Facilities Maintenance Permit; Exemptions. No Person shall perform
Facilities Maintenance at a specified location in the Rights-of-Way
without first obtaining a Facilities Maintenance Permit from the Director,
except where such Facilities Maintenance is expressly authorized by
an existing valid Excavation Permit for the applicable Facilities
Maintenance location or is exempt herein. In addition to the applicable
conditions and obligations set forth in this Chapter, conditions of
a Facilities Maintenance Permit shall be as established in such Permit
and shall include requirements of notice to and approval by the City
whenever traffic lanes are to be obstructed, manhole covers or safety
barriers removed or altered, temporary or other barricades installed,
and other events set forth in the Facilities Maintenance Permit. All
Facilities Maintenance Permits shall expire after sixty (60) days
from the date of issuance, unless otherwise specified in such Permit.
A Facilities Maintenance Permit shall not be required for:
1.
ROW Users performing routine Maintenance which does not require
Excavation, does not disrupt traffic or pedestrians, and requires
no more than four (4) hours to complete, provided that at minimum
two (2) hours' notice is provided to the City during normal business
hours;
3.
Contractors working on the construction or reconstruction of
public improvements and which are operating pursuant to a contract
with the City for such construction; or
4.
Routine maintenance on previously approved Small Wireless Facilities,
replacement of Small Wireless Facilities that are the same or smaller
in size, weight, and height, or installation placement, maintenance,
operation, or replacement of Micro Wireless Facilities that are strung
on cables between Utility Poles in compliance with applicable safety
and building codes, when such work will not involve Excavation, affect
traffic patterns, obstruct traffic in the ROW, or materially impede
the use of a sidewalk, and provided the ROW User submits as-builts
of the new Small Wireless Facilities or Micro Wireless Facilities
so the City may maintain an accurate inventory of Facilities installed
in the ROW.
D.
Bulk Permits. The Director shall have the authority to establish
procedures for bulk processing of applications and periodic payment
of fees.
E.
Emergencies. In the event of an emergency requiring immediate attention
to remedy defects, and in order to avoid loss of damage to Person
or property, it shall be sufficient that the Person conducting the
work shall as soon as practicable notify the City of the location
of the work and shall apply for the required ROW Permit as soon as
practicable following the commencement of the work, not to exceed
the third business day thereafter, or as otherwise directed by the
City. In the event the City becomes aware of an emergency requiring
Facilities work the City shall attempt to contact a representative
of each ROW User affected, or potentially affected, by the emergency
work. If no response is received by a particular ROW User to whom
contact is attempted, the Director may take whatever action he/she
deems necessary to respond to the emergency, the cost of which shall
be borne by the Person whose action or inaction occasioned the emergency
or by the ROW User if the emergency was occasioned by an act of nature.
F.
ROW Permit Specific Conditions. The Director may also impose reasonable
conditions upon the issuance of a Permit and the performance of work
in order to protect the public health, safety, and welfare, to ensure
the structural integrity of the Rights-of-Way, to protect the property
and safety of other users of the Rights-of-Way, and to minimize the
disruption and inconvenience to the traveling public. Such reasonable
conditions, may include, but are not limited to:
1.
The amount of Excavation or Facilities Maintenance which may
occur at one (1) time and the amount of Rights-of-Way which may be
obstructed during construction;
2.
The number or size of conduits or other Facilities that may
be installed by each ROW User based on the reasonable needs to ensure
that no one (1) ROW User may unreasonably consume a disproportionate
amount of the available Rights-of-Way to deter competition or deprive
the public or others of the reasonable use of the Rights-of-Way;
3.
Posting of an additional or larger performance and maintenance bond for additional Facilities, except as otherwise provided in Section 550.200 hereof, when the established amount is reasonably determined to be insufficient;
4.
The design, location, and nature of all Facilities, based on
a non-discriminatory basis in ensuring the safe, efficient, and appropriate
use of the ROW consistent with this Chapter and applicable law; and
5.
Other reasonable conditions regarding the timing, safety precautions,
space, or specific implementation of the specific work proposed.
G.
Codes Incorporated. Every Permit issued hereunder shall incorporate
the requirements and terms of this Chapter, agreements, and all applicable
ordinances, to the extent permitted by law. The ROW User shall perform
such work in accordance with the issued permit and applicable provisions
of this Chapter and any subsequent ordinances or regulations that
may be adopted by the City regarding Excavation or Facilities Maintenance
work. In addition, all ROW Users shall be subject to all technical
specifications, design criteria, policies, resolutions, and ordinances
now or hereafter adopted or promulgated by the City in the reasonable
exercise of its police power relating to Permits and fees, sidewalk
and pavement cuts, Facility location, construction coordination, surface
restoration, and other requirements on the use of the Rights-of-Way.
A ROW User shall perform all Excavations or Facilities Maintenance
in full compliance with all applicable engineering codes adopted or
approved by the City, and in accordance with applicable Statutes of
the State of Missouri, and the rules and regulations of the Public
Service Commission, Federal Communications Commission, and any other
local, State or Federal agency having jurisdiction over the parties.
The ROW User shall comply with the Excavation requirements of Missouri
One Call established by Sections 319.010 et. seq., RSMo., as
amended. A ROW User shall be responsible for all Excavations or Facilities
Maintenance done in the Rights-of-Way on its behalf, regardless of
by whom the Excavation or Facilities Maintenance is done.
H.
Tree And Landscape Protection. Upon ten (10) days' written notice
and with the supervision of the City or as otherwise provided by law
or agreement, the City may permit a ROW User to trim trees that overhang
Rights-of-Way of the City so as to prevent the branches of such trees
from coming in contact with Facilities in the ROW, at its own expense,
subject to the supervision and direction of the City. Nothing in this Subsection
shall authorize the trimming of trees on private property without
permission of the property owner. All cut materials shall be properly
disposed. Unless otherwise approved, in writing, by the City, a ROW
User shall not remove, cut or damage any trees or their roots in the
Rights-of-Way. In reviewing any Permit application, the City may require
the Applicant to directionally bore around or otherwise avoid disturbance
to any tree or landscaping, existing Facility, or other protected
area in the Rights-of-Way.
I.
Permit Displayed. At all times during the work, Permits shall be
conspicuously displayed at the work site and shall be available for
inspection by the Director.
J.
Modification Requiring New Permit. If at any time it appears that
the duration or scope of the work is or will become materially different
from that allowed by the Permit, the ROW User shall inform the Director.
The Director may issue a waiver, an extension or revised Permit, or
require that the ROW User reapply for a Permit in accordance with
all requirements of this Chapter.
K.
Notification, Joint Installation, And Collocation. ROW Users shall,
prior to any Excavation or installation in 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 ROW Users, to minimize the
disturbance to the Rights-of-Way, and maximize its useable capacity.
ROW Users shall identify by mapping, as required by the Director,
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.
L.
Subsurface Utility Engineering Survey. Unless determined by the Director
as unnecessary, prior to the commencement of any construction or alteration
of its Facilities located in the Rights-of-Way, the ROW User shall
furnish to the Director a subsurface utility engineering study on
the proposed route of construction, expansion, or alteration, which
shall consist of the following tasks:
1.
All available plans, plats, and other location data indicating
the existence and approximate location of all Facilities along the
proposed construction route;
2.
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, pedestals, valve boxes, utility boxes, posts, and visible
street cut repairs;
3.
Plot and incorporate the data obtained from completion of tasks
(1) and (2) above onto the provider's proposed Facilities route
maps, plan sheets, and computer-aided drafting and design (CADD) files;
and
4.
Provide all such data collected into a CADD file (or other format
as may be identified by the Director) compatible with that used by
the Director and deliver a copy to the Director.
[Ord. No. 8182, 5-13-2019]
A.
The Director may deny an application for a Permit if:
1.
To the extent permitted by law, the Person does not have a current
Franchise, License, or Rights-of-Way Use Agreement, or other authorization
with the City.
2.
The ROW User, or any Persons acting on the behalf of the ROW
User, fails to provide all the necessary information requested by
the City for managing the Rights-of-Way.
3.
The ROW User, or any Persons acting on the 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 where the ROW User, or any Persons acting
on the behalf of the ROW User, including contractors or subcontractors,
has failed to return the Rights-of-Way to its previous condition under
a previous Permit, or has violated terms, or is in violation of terms
of the ROW Users' Franchise, Rights-of-Way Use Agreement, License,
or other authorization with the City.
4.
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 Facilities Maintenance identified
in the 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.
5.
Any other violations or non-compliance caused by or through
the ROW User of any applicable City, State, or Federal law or regulation,
except where such violation is prohibited by applicable law for being
a basis for denial.
6.
The City 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, and such denials shall only be imposed
on a competitively neutral and non-discriminatory basis. In determining
whether denial of a Permit application is necessary to protect the
public health and safety, the Director may consider one (1) or more
of the following factors:
a.
The extent to which the Rights-of-Way space where the Permit
is sought is available, including the consideration of competing demands
for the particular space in the Rights-of-Way, or other general conditions
of the Rights-of-Way;
b.
The applicability of any ordinance, code provision, or other
regulations that affect the location of Facilities in the Rights-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 Rights-of-Way,
including whether the issuance of a Permit for the particular dates
and/or times requested would cause a conflict or interfere with an
exhibition, celebration, festival, or any other event;
d.
The area is environmentally sensitive as defined by State Statute
or Federal law or is a Historic District designated by City ordinance;
and
e.
The failure to comply with applicable City ordinances, or any
other violation, unsafe conditions, or damage or threatened harm to
the Rights-of-Way or public, except where such circumstance would
otherwise not constitute a lawful basis for denial of a Permit.
[Ord. No. 8182, 5-13-2019]
A.
The Director may, after reasonable notice and an opportunity to cure,
revoke a Permit without fee refund, but only in the event of a substantial
breach of the terms and material conditions of the Permit. A substantial
breach by a ROW User includes but is not limited to:
1.
A material violation of a provision of the Permit;
2.
An evasion or attempt to evade any material provision of the
Permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the City or its citizens;
3.
A material misrepresentation of fact in the Permit application;
4.
A failure to complete work by the date specified in the Permit,
unless a Permit extension is obtained, or unless the failure to complete
the work is due to reasons beyond the ROW User's control;
5.
A failure to correct, within the time specified by the City,
work that does not conform to applicable national safety codes, industry
construction standards, or local safety codes, upon inspection and
notification by the City of the faulty condition; or
6.
Such other lawful reasons.
[Ord. No. 8182, 5-13-2019]
A.
Exclusion Of Certain Locations/Facilities. To the extent permitted
by applicable law, the Director may designate certain locations or
Facilities in the Rights-of-Way to be excluded from use by the ROW
User, including, but not limited to, ornamental or similar specially-designed
street lights or other Facilities or locations which, in the reasonable
judgment of the Director, 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 Director is incompatible
with the proposed Facilities, or would be rendered unsafe or unstable
by the installation. The Director may further exclude certain other
Facilities that have been designated or planned for other use or are
not otherwise available for use by the ROW User 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 ROW User, the City
will cooperate in good faith with the ROW User 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 the ROW User.
B.
Location, Type, And Design Of Facilities Subject To Approval.
1.
Review Required. The design, location, and nature of all Facilities
shall be subject to the review and approval of the Director. Such
review shall be on a non-discriminatory basis in application of City
policy and approvals shall not be unreasonably withheld. City height
limitations, applicable zoning restrictions, and general City policies
with regard to all users of the Rights-of-Way shall be applicable
to all Facilities. The Director may establish regulations or policies
as may be deemed necessary or appropriate to affect this provision.
2.
Underground And Collocation Of Facilities Required; Exceptions.
Except as provided herein or where prohibited by applicable law, no
Person may erect, construct, or install Facilities above the surface
of the Rights-of-Way without the written permission of the City based
on good cause established by the Applicant and found by the City.
In addition, all new fiber optics, coaxial, and similar cable Facilities
shall be located within existing conduit, trenches, or other Facilities
to minimize unnecessary use of Rights-of-Way space, reduce potential
existing or future interference and obstructions, and to reduce the
cost to the public or others therefrom, and to maximize the public's
ability to use and license appropriate private or public uses of the
Rights-of-Way in the public interest except where preempted by law
or where good cause is established and written permission granted
by the City. Such permission may be granted by the City Council when
other similar Facilities exist above-ground and conditions are such
that underground construction is impossible, impractical or unfeasible,
as determined by the City, and when in the City's judgment the
above-ground construction has minimal aesthetic impact on the area
where the construction is proposed. Where reasonable and appropriate
and where adequate Rights-of-Way exists, the ROW User 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. New Utility Poles and related ground mounted equipment shall
be permitted to be installed above ground; provided, however, that
to ensure unobstructed pedestrian use and City maintenance of the
ROW and minimize visual obstructions for vehicular traffic, a new
Utility Pole and any ground mounted equipment related to that Utility
Pole or the equipment thereon shall not be installed within one hundred
and fifty (150) feet of another Utility Pole or other ground mounted
equipment on the same side of the ROW. A replacement Utility Pole
that is installed in lieu of an existing Utility Pole and is installed
within ten (10) feet of the existing Utility Pole, shall not be considered
a new Utility Pole subject to the spacing requirements herein. Such
spacing regulations as applied to that specific site may be altered
and/or waived by the Director upon good cause shown.
3.
Wireless Antennas And Facilities. Pursuant to City authority,
including by Section 67.1830(f), RSMo., and the Uniform Small Wireless
Facility Deployment Act (Sections 67.5110 et seq., RSMo.), and
due to the limited space in the City's Rights-of-Way and in order
to minimize obstructions and interference with the use of the Rights-of-Way
and to ensure traffic safety, while also seeking to facilitate delivery
of broadband technologies to City residents and businesses, wireless
Facilities shall be permitted in the Rights-of-Way in compliance with
the requirements applicable to other Facilities and users in the Rights-of-Way,
and the additional requirements set forth in this Section for wireless
antennas and Facilities.
a.
General Conditions. Any wireless Facility in the ROW shall be subject to conditions relating to the location (including prohibited or limited locations), design, height, appearance, safety, radio-frequency, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the Director to address changing infrastructure, technology, and uses of the Rights-of-Way and/or City Facilities. A wireless Facility shall not be located or installed in a manner that results in interference with or impairs the operation of existing utility facilities or City or third-party attachments. Wireless Antennas or Facilities shall further comply with: (1) all applicable requirements for installation of any Facilities in the ROW as set forth in this Chapter including a ROW Permit; (2) the requirements of this Section; and (3) requirements for installation of wireless Antennas and Facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Sections 67.5090 et seq., RSMo.), Uniform Small Wireless Facility Deployment Act (Sections 67.5110 et seq., RSMo.), applicable zoning, building, and other regulations and approvals, specifically including Chapter 430.
b.
Specific Conditions.
(1)
Small Wireless Facilities. Any Small Wireless Facility meeting the requirements for Small Wireless Facility as defined by Section 430.020 and as provided in Section 430.050 of the City's Code shall be authorized to be located in the Rights-of-Way with approval of the Director subject to the following additional requirements:
(a)
If proposing to install a new Utility Pole, compliance with the spacing requirements in Section 550.180(B)(2);
(b)
Compliance with Section 67.5113.3(9), RSMo., to
the satisfaction of the City;
(c)
For collocations on City Utility Poles, all make-ready
estimates for the Utility Pole, including replacement costs where
necessary for the safety and reliability of the Utility Pole, as determined
by the City;
(d)
Attestation that the proposed Small Wireless Facility meets the volumetric requirements to meet the definition of a Small Wireless Facility in Section 430.020 of the City's Code; and
(e)
Any other requirements which may be applicable
to the proposed Small Wireless Facility pursuant to the Uniform Small
Wireless Facility Deployment Act (Sections 67.5110 et seq., RSMo.).
(2)
"Fast-Track" Small Wireless Collocation. Any wireless Facility meeting the requirements of a "Fast-Track' Small Wireless Facility" as defined by Section 430.020, and as provided in Section 430.060(A)(2) of the City's Code, may be authorized to be located in the Rights-of-Way with approval of the Director subject to the following additional requirements:
(a)
Attestation that the proposed facilities meet the volumetric requirements to meet the definition of "Fast-Track" in Section 430.020 of the City's Code;
(b)
Only one "Fast-Track" Small Wireless Facility shall
be permitted per structure or Utility Pole in the ROW, but such requirement
may be waived by the Director where deemed to be in the interest of
the purposes of this Section;
(c)
No ground equipment shall be authorized;
(d)
If the proposed structure the Applicant proposes
to locate its "Fast-Track" Small Wireless Facility is not structurally
sound, but the Director finds such to be a desired location, the Director
can require the Applicant to install a new substantially similar structure
at its cost; and
(e)
Compliance with the spacing requirements in Section 550.180(B)(2) if granted a waiver under the "Fast-Track" zoning procedure to install a new structure.
(3)
All Other Wireless In ROW. Any wireless Facility
located on a Utility Pole or Existing Structure but not meeting the
requirements of: (1) Small Wireless Facilities; or (2) "Fast-Track"
Small Wireless Collocation above, may be approved, subject to conditions
as may be imposed consistent with the purposes of this Section, only
upon approval by the City Council upon a determination by the City
Council that such wireless Facility is: (1) in the public interest
to provide a needed service to persons within the City; (2) cannot
feasibly meet all of the requirements of a "Small Wireless Facility,"
"Fast-Track" or otherwise, but varies from such requirements to the
minimum extent necessary; (3) does not negatively impact appearance
or property values in light of the location, design, and circumstances
to be approved; (4) does not create any reasonable safety risk; and
(5) complies with all zoning, ROW, and other applicable requirements.
c.
Wireless Facility Compensation. If the Small Wireless Facility
or "Fast-Track" is to be located on a City owned structure or Utility
Pole, an annual payment of one hundred fifty dollars ($150.00) per
attachment shall be required.
4.
Limited Space. The City shall have the power to prohibit or
limit the placement of new or additional equipment in the Rights-of-Way
if there is insufficient space to accommodate all of the requests
of potential ROW Users. In making such decisions, the City shall strive
to the extent possible to accommodate all existing and potential users
of the Rights-of-Way, but shall be guided primarily by considerations
of the public interest, public health and safety, the public's
priority needs for the particular service, the condition of the Rights-of-Way,
the time of year with respect to essential utilities, the protection
of existing equipment in the Rights-of-Way, and future City plans
for public improvements and development projects which are in the
public interest.
5.
Limit Number Of ROW Users. To the extent not prohibited by law,
the City may limit the number of users in the Rights-of-Way in a competitively
neutral manner, based upon, but not necessarily limited to, specific
local considerations such as:
a.
The capacity of the Rights-of-Way to accommodate current or
future Facilities, public improvements, or public use;
b.
The impact on the community of the volume of Facilities in the
Rights-of-Way;
c.
The disruption arising from the use of or numerous Excavations
of the Rights-of-Way; or
d.
Any other consideration based upon the interests of the public
safety and welfare.
C.
Mapping Of Facilities. Upon completion of the ROW work involving
installation of new Facilities, the ROW User shall supply the City
copies of as-built and detailed maps showing the exact location of
Facilities installed in the ROW. As a condition of continued ROW use,
all ROW Users shall, on an annual basis, provide the City with as-builts
or other detailed maps of the ROW User's current facilities.
Such annual requirement may be waived by the Director upon written
request.
D.
No Interference. All ROW Users shall construct and maintain its Facilities
so as not to interfere with other users of the Rights-of-Way. The
ROW User shall not interfere with or alter the Facilities of the City
or other ROW User without their consent and shall be solely responsible
for such. Except as may otherwise be provided or as determined by
the Director, the ROW User 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 the ROW
User or its subcontractors shall be performed in accordance with industry
standards. The ROW User shall, in the performance of any Excavation,
Facilities Maintenance, or other ROW work, limit such work to that
necessary for efficient operation and so as not to interfere with
other users of the Rights-of-Way. All Facilities and other structures
shall be installed and located to cause minimum interference with
the rights and convenience of property owners, ROW Users, and the
City. Facilities and other structures shall not be placed where they
will disrupt or interfere with other Facilities, structures, or public
improvements or obstruct or hinder in any manner the various utilities
serving the residents and businesses in the City or public improvements.
Above-ground Facilities shall be constructed and maintained in such
a manner so as not to emit any unnecessary or intrusive noise. When
reasonable and necessary to accomplish such purposes, the Director
may require as alternatives to the proposed work either less disruptive
methods or different locations for Facilities consistent with applicable
law.
E.
Subordinate Uses. ROW User's use shall be in all situations
subordinate and subject to public municipal use. In situations where
multiple users are within the same location, first the municipal use
shall have priority followed by Persons with a valid and current Rights-of-Way
Use Agreement, Franchise, or other authorization with the City, followed
by all others.
F.
Site Triangle Maintained. ROW Users shall comply with the requirements
of site triangles and nothing shall be erected, placed, planted, or
allowed to grow in such a manner as to materially impede vision within
the triangular area formed by the Rights-of-Way lines and a line connecting
them at points thirty (30) feet from their point of intersection or
at equivalent points on a private street.
[Ord. No. 8182, 5-13-2019]
A.
City Required Relocation. The ROW User shall promptly remove, relocate,
or adjust any Facilities located in the Rights-of-Way as directed
by the City when such is required by public necessity, or public convenience
and security require it, or such other findings in the public interest
that may require relocation, adjustment, or removal at the cost of
the ROW User. Such removal, relocation, or adjustment shall be performed
by the ROW User within the time frames established by the City and
at the ROW User's sole expense without any expense to the City,
its employees, agents, or authorized contractors and shall be specifically
subject to rules, regulations, and schedules of the City pertaining
to such.
B.
Emergency Exception. In the event of an emergency or where construction
equipment or Facilities create or are contributing to an imminent
danger to health, safety, or property, the City may, to the extent
allowed by law, remove, re-lay, or relocate such construction equipment
or the pertinent parts of such Facilities without charge to the City
for such action or for restoration or repair. The City shall attempt
to notify the Person having Facilities in the Rights-of-Way prior
to taking such action, but the inability to do so shall not prevent
same. Thereafter, the City shall notify the Person having Facilities
in the Rights-of-Way as soon as practicable.
C.
Third-Party Relocation. A Person having Facilities in the Rights-of-Way
shall, on the reasonable request of any Person, other than the City,
holding a validly issued Permit, after reasonable advance written
notice, protect, support, or temporarily disconnect or relocate Facilities
to accommodate such Person and the actual cost, reasonably incurred,
of such actions shall be paid by the Person requesting such action.
The Person having Facilities in the Rights-of-Way taking such action
may require such payment in advance.
D.
Abandonment Exception. Rather than relocate Facilities as requested or directed, a ROW User may abandon the Facilities if approved by the City as provided in Subsection (G) of this Section.
E.
ROW User Responsible For Damage. Any damages suffered by the City,
its agents or its contractors to the extent caused by the ROW User's
failure to timely relocate, remove or adjust its Facilities, or failure
to properly relocate, remove, or adjust such Facilities, shall be
borne by the ROW User. Where the ROW User shall fail to relocate Facilities
as required by the City, the City may, but shall not be required to,
upon notice to the ROW User remove the obstructing Facilities with
or without further delay and the ROW User shall bear all responsibility
and liability for the consequences therefrom, and the City shall bear
no responsibility to the ROW User or others for damage resulting from
such removal.
F.
No Vested Rights. No action hereunder shall be deemed a taking of
property and no Person shall be entitled to any compensation therefor.
No location of any Facilities in the Rights-of-Way shall be a vested
interest or property right.
G.
Abandoned Facilities; Removal. A Person owning Abandoned Facilities
in the Rights-of-Way must not later than thirty (30) days of notice
or of abandonment remove its Facilities and replace or restore any
damage or disturbance caused by the removal at its own expense. The
Director may upon written application and written approval allow underground
Facilities or portions thereof to remain in place if the Director
determines that it is in the best interest of public health, safety,
and general welfare to do so. The City shall be entitled to all costs
of removal and enforcement for any violation of this provision.
H.
Nuisance. Facilities Abandoned or otherwise left unused in violation of this Chapter are deemed to be a nuisance pursuant to Chapter 215 of the City's Code. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to: (a) abating the nuisance; (b) taking possession and ownership of the Facility and restoring it to a useable function; or (c) requiring the removal of the Facility by the ROW User.
[Ord. No. 8182, 5-13-2019]
A.
Compliance With Laws. Each ROW User shall comply with all applicable
Federal and State laws and regulations and rules as well as all City
ordinances, resolutions, rules, and regulations heretofore and hereafter
adopted or established.
B.
Zoning, Safety, And Building Code Compliance. ROW Users shall at
all times be subject to the lawful exercise of the police powers of
the City, including but not limited to all police powers regarding
zoning, supervision of the restoration of the Rights-of-Way, building
and safety regulations, and control of the Rights-of-Way currently
in effect or as may be amended. Installation of all Facilities in
the Rights-of-Way are subject to and must be in compliance with all
zoning and safety and building code requirements. For applications
for installation of any Facility in the Rights-of-Way: (1) the most
restrictive adjacent underlying zoning district classification shall
apply unless otherwise specifically zoned and designated on the Official
Zoning District Map; and (2) no application shall be submitted for
approval without attaching the City's consent to use the Rights-of-Way
for the specific construction application in accordance with Chapter
67, RSMo., and compliance with this Chapter.
C.
No Cause Of Action Against The City. As a condition for use of the
Rights-of-Way, a ROW User 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
ROW Use Agreement, Franchise, or License, or because of the enforcement
thereof by said City, or from the use of the Rights-of-Way. Nothing
herein shall preclude the ROW User from seeking injunctive or declaratory
judgment relief against the City where such relief is otherwise available
and the requirements therefor are otherwise satisfied.
D.
Maintenance Of Facilities. Each Row User shall maintain its Facilities
in good and safe condition and in a manner that complies with all
applicable Federal, State, and local requirements.
E.
Advertising, Signs, Or Extraneous Markings. ROW Users shall not place
or cause to be placed any sort of signs, advertisements, or other
extraneous markings, whether relating to the ROW User or any other
Person on the 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.
F.
Responsible For Subcontractors. If Excavation or Facilities Maintenance
is being done for the ROW User by another Person, a subcontractor
or otherwise, the ROW User shall be responsible for ensuring that
the Excavation or Facilities Maintenance of said Person is performed
consistent with its Permit and applicable law (including that the
contractor shall be properly licensed under the State of Missouri
and local ordinances) and shall be responsible for promptly correcting
acts or omissions by said Person.
G.
Insurance; Exceptions. Except as provided in this Section, each ROW
User shall provide, at its sole expense, and maintain during the term
of any ROW Use Agreement or Franchise or anytime the ROW User has
Facilities in the ROW, 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 such use of the ROW,
whether such operations are by the ROW User, its officers, directors,
employees, and agents, or any contractors or 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 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 which states that the City is an additional
insured with full and equivalent coverage as the insured under the
insured's policy 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 Director, along with
copies of the policy and other documentation, shall be provided. If
the Person is self-insured, it shall provide the City proof of compliance
regarding its ability to self-insure and proof of its ability to provide
coverage in the above amounts. The City's additional insured
coverage shall have no deductible. The insurance requirements in this
Section or otherwise shall not apply to a ROW User to the extent and
for such period as the ROW User is exempted from such requirements
pursuant to Section 67.1830(6)(a), RSMo., 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 a ROW Use Agreement or Franchise
or the City determines such exemption has not been adequately shown.
Additionally, in accordance with Section 67.5121(3), RSMo., a self-
insured ROW User shall not be required to obtain insurance naming
the City as an additional insured solely to the extent such ROW User
is utilizing "Small Wireless Facilities" as defined in the Uniform
Small Wireless Facility Deployment Act within the ROW. This exception
to the City's insurance requirements shall only apply as related
to "Small Wireless Facilities" and shall not otherwise alter the obligations
of a ROW User to provide appropriate insurance to the City for any
other activities or operations. The City may waive any and all requirements
under this Subsection when deemed to be lawful and in the public interest.
H.
Performance And Maintenance Bonds.
1.
Bond Required. Prior to any work, a ROW User shall establish in the City's favor a performance and maintenance bond in an amount to be determined by the Director to guarantee the restoration of the Rights-of-Way as more fully provided in Section 550.220(B)(7). The bond shall continue in full force and effect for a period of forty-eight (48) months following completion of the work. The Director may waive this requirement when the work involves, as determined in the sole discretion of the Director, no or only minor disruption or damage to the Rights-of-Way. The bond requirements in this Section or otherwise shall not apply to a ROW User to the extent and for such period as the ROW User is exempted from such requirements pursuant to Section 67.1830(6)(a), RSMo., 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 a ROW Use Agreement or Franchise or the City determines such exemption has not been adequately shown. The City may waive any and all requirements under this Subsection when deemed to be lawful and in the public interest.
2.
Failure To Satisfactorily Complete Restoration. If a ROW User
fails to complete the work in a safe, timely, and competent manner
or if the completed restorative work fails without remediation within
the time period for the bond (as determined by the Director), then
after notice and a reasonable opportunity to cure, there shall be
recoverable, jointly and severally from the principal and surety of
the bond, any damages or loss suffered by the City as a result, including
the full amount of any compensation, indemnification, or cost of removal
or Abandonment of any property of the ROW User and the cost of completing
work in or restoring the Rights-of-Way, up to the full amount of the
bond. The City may also recover against the bond any amount recoverable
against a security fund or letter of credit where such amount exceeds
that available under a security fund or letter of credit.
3.
Bond Terms. The bond shall be issued by a surety with an "A"
or better rating of insurance in Best's Key Rating Guide, Property/Casualty
Edition, shall be subject to the approval of the City's Attorney
and shall contain the following endorsement: "This bond may not be
cancelled 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.
Exception. In lieu of the bond required herein, the ROW User
may establish in the City's favor such other security as the
Director may determine to be commensurate with the noted bonding requirements,
including, but not limited to, an annual bond to be maintained in
the minimum amount of twenty-five thousand dollars ($25,000.00). Additionally,
in accordance with Section 67.5121(4), RSMo., the bonds required for
"Small Wireless Facilities" as defined in the Uniform Small Wireless
Facility Deployment Act shall not exceed one thousand five hundred
dollars ($1,500.00) per "Small Wireless Facility" or more seventy-five
thousand dollars ($75,000.00) for all "Small Wireless Facilities"
within the ROW of a ROW User. This exception to the City's bonding
requirements shall only apply as related to such "Small Wireless Facilities"
and shall not otherwise alter the obligations of a ROW User to provide
appropriate bonds to the City for any other activities or operations.
I.
Indemnification. Any Person performing Excavation or a ROW User as
a condition of use of the Rights-of-Way shall at its sole cost and
expense fully indemnify, protect, defend (with counsel acceptable
to the City), and hold harmless the City, its municipal officials,
officers, employees, and agents, from and against any and all claims,
demands, suits, proceedings, and actions, liability, and judgment
by other Persons for damages, losses, costs, and expenses, including
attorney fees, arising, directly or indirectly, in whole or in part,
from the action or inaction of the Person performing Excavation or
ROW User, its agents, representatives, employees, contractors, subcontractors,
or any other Person for whose acts the Person performing Excavation
or ROW User may be liable, in constructing, operating, maintaining,
repairing, restoring, or removing Facilities or other structures,
or use of the Rights-of-Way or the activities performed, or failed
to be performed, by the Person performing Excavation or ROW User under
this Chapter or applicable law, 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. Nothing herein shall be deemed to prevent
the City, or any agent from participating in the defense of any litigation
by their own counsel at their own expense. Such participation shall
not under any circumstances relieve the Person from the duty to defend
against liability or its duty to pay any judgment entered against
the City, or its agents. This indemnification shall survive the expiration
or termination of any ROW Use Agreement, License, or Permit. Provided,
however, that in accordance with Section 67.5121(2), RSMo., a ROW
User for and in relation to that ROW User's operation of a "Small
Wireless Facility" as defined in the Uniform Small Wireless Facility
Deployment Act, within the ROW shall only indemnify and hold the City,
its officers and employees, harmless against any damage or personal
injury caused by the negligence of the ROW User, its employees, agents,
or contractors. This exception shall only apply to the ROW User's
"Small Wireless Facilities" and shall not otherwise alter the obligations
of a ROW User to provide indemnification to the City for any other
activities or operations.
J.
ROW User Responsible For Costs. The ROW User shall be responsible
for all reasonable costs borne by the City that are directly associated
with ROW User's installation, Maintenance, repair, operation,
use, and replacement of its Facilities in the Rights-of-Way that are
not otherwise accounted for as part of the Permit fee established
pursuant to this Chapter, to the extent permitted by law. All such
costs shall be itemized and the City's books and records related
to these costs shall be made available upon request of the ROW User.
[Ord. No. 8182, 5-13-2019]
A.
Open Excavations; Street-Plate Bridging. The ROW User shall not permit
an Excavation to remain open or Facilities Maintenance actions to
continue in the Rights-of-Way longer than is necessary to complete
the repair, installation or action, and in no event, may an Excavation
or Facilities Maintenance remain open or continue beyond the expiration
of the Excavation Permit or any approved extension. Unless otherwise
approved by the Director in writing, all Excavations shall be filled
in or covered at the end of each working day. Street-plate bridging
("SPB") to cover open Excavations shall be authorized subject to requirements
contained in the standard specifications.
B.
Interference Control. The ROW User Excavating in the Rights-of-Way
shall cause the Excavation to be done with the least possible injury
to the pavement, sidewalk, curbing, parkway, or other surface and
shall place the materials from the Excavation where they will cause
the least possible inconvenience to the public and permit the uninterrupted
passage of water along the gutters. The width of the Excavation shall
be no greater than is necessary for doing the work.
C.
Erosion Control. Before new Excavation or construction is commenced
and until sodding, planting, concreting, paving, or other final surfacing
is in place, which will avoid washing or spreading of dirt and mud
onto other property, sidewalks, curbs, gutters, streets, and the Rights-of-Way,
the ROW User shall erect and maintain approved temporary erosion control
measures to prevent such washing or spreading of materials. At the
end of each day and as required throughout the day during the course
of Excavating or construction, dirt and mud on the sidewalks, curbs,
gutters, streets, and the Rights-of-Way resulting from work must be
removed.
D.
Cleaning Up; Removing Mud From Vehicles. The Person doing the Excavating
or other ROW work under the requirements of this Chapter shall immediately,
after the work is completed and the refill is made, clean up and haul
away all surplus earth, rock, debris, or other rubbish. The ROW User
shall remove dirt from the wheels of all vehicles leaving any site
where mud has accumulated on the wheels before such vehicles enter
any public street of the City. It shall be unlawful for any ROW User
to permit any vehicles to leave such place with mud on the wheels
which is liable to be dispersed over any public street of the City
and it shall be unlawful for any driver of a vehicle to enter upon
the public streets of the City without having removed or had mud removed
from the wheels prior to such entry. Each occurrence shall be a separate
offense. 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.
E.
Spilling Materials Onto Rights-Of-Ways. The ROW User shall load materials
on any vehicle so no portion thereof shall be spilled or be liable
to be spilled on the streets of the City. It shall be unlawful for
any ROW User to permit any vehicle to enter upon the streets of the
City loaded in violation of this provision and it shall be unlawful
for any Person to operate a vehicle on the streets of the City which
is loaded in such manner that it spills or is liable to spill mud,
dirt, or other materials on the streets.
F.
Hours Of Activity. The ROW User shall perform non-emergency Excavations
or Facilities Maintenance on the Rights-of-Way at such times that
will allow the least interference with the normal flow of traffic
and the peace and quiet of the neighborhood, and shall not work between
the hours of 11:00 P.M. and 6:00 A.M.
G.
Methods Of Pavement Removal, Excavation, And Backfill. The Person
making an Excavation shall abide by the following conditions:
1.
The initial cut in a street pavement shall be equal to the width
of the trench with the option of being jack hammered or saw cut. The
final cut in an asphaltic concrete street pavement shall be one-foot
wider than the trench width and shall be made only by saw cutting
of the pavement.
2.
For cuts in concrete paved streets, concrete pavement replacement
shall be full slab length (joint-to-joint) and full slab width (curb
or gutter to street centerline) unless specifically authorized otherwise
by the Director.
3.
Refill Excavation with suitable unfrozen materials free from
trash, rubbish, vegetative and deleterious material, and/or rocks
over three (3) inches in maximum dimension, in layers not exceeding
six (6) inches in depth and each layer shall be compacted thoroughly.
4.
Compaction shall meet or exceed the most current version of
the standards and conditions of the City and the ASTM International
(American Society for Testing and Materials). If inspections were
not requested or a valid Excavation Permit obtained, the City may
require compaction testing by a registered professional engineer licensed
in the State of Missouri at the ROW User's expense.
[Ord. No. 8182, 5-13-2019]
A.
Property Repair And Alterations.
1.
No Damage. During any work, the Person doing the work shall
protect from damage any and all existing structures and property belonging
to the City and any other person. Any and all Rights-of-Way, public
property, or private property disturbed or damaged during the work
shall be repaired or replaced by the Person doing the work or the
Person on whose behalf the work is being done and such Person shall
immediately notify the owner of the fact of any damaged property.
Such repair or replacement shall be completed within a reasonable
time specified by the Director and to his/her satisfaction.
2.
Alterations. Any alteration to the existing water mains, sewerage
or drainage system, or to any City, State, or other public structures
or Facilities in the Rights-of-Way required on account of the construction,
installation, repair, or Maintenance of Facilities in the Rights-of-Way
shall be made at the sole cost and expense of the owner of such Facilities.
B.
Specifications And Conditions For Work.
1.
Barricades And Safety Devices. The ROW User assumes the sole
responsibility for maintaining proper barricades, plates, safety fencing,
and/or lights as required from the time of opening of the ROW until
the Excavation is surfaced and opened for travel. All Excavations
and Facilities Maintenance that disturb traffic or pedestrian travel
shall be barricaded in such a manner as to protect both pedestrians
and vehicular traffic. Such Excavations, Facilities Maintenance, and
barricades shall be lighted at night with danger signals in such a
manner that all traffic may be warned of the existence and location
of such Excavations, Facilities Maintenance, and barricades.
2.
Traffic Control. Whenever there is an Excavation or Facilities
Maintenance by the ROW User, the ROW User shall be responsible for
providing adequate traffic control to the surrounding area as determined
by the Director. All traffic control devices shall be in compliance
with the current version of the standard specifications and the Manual
of Traffic Control Devices (MUTCD), unless otherwise agreed to by
the City. All surplus Excavation materials, tools, or supplies at
the site of the Excavation or Facilities Maintenance shall be barricaded
and lighted at night in the manner described in this Section. In the
event the Excavation or Facilities Maintenance is not completed in
a reasonable period of time, the ROW User may be liable for actual
damages to the City for delay caused by the ROW User pursuant to this
Chapter.
3.
Specifications And Restoration. All work and Maintenance shall
comply with all such specifications as may be established by the Director.
The ROW User shall restore the Rights-of-Way and surrounding areas
and shall comply with other reasonable conditions of the Director.
Restoration of the Rights-of-Way shall be completed within the dates
specified in the ROW Permit unless the Director issues a waiver, extension,
or a new or revised ROW Permit.
4.
Failure To Restore. If a ROW User fails to restore the Rights-of-Way
to its reasonable before condition (including placement of sod to
restore any grassy areas unless such requirement is waived by the
Director in his/her sole discretion based on area disturbed and weather
conditions) within the date specified either by the ROW Permit or
any extension thereof as granted by the Director, the City may perform
its own restoration. If the City performs the restoration, the ROW
User shall be responsible for reimbursing the City's reasonable
actual restoration costs within thirty (30) days of invoice. The City
may use the required performance bond to repair the same, if necessary.
The ROW User shall not be relieved of the obligation to complete the
necessary Rights-of-Way restoration and Maintenance because of the
existence of any performance bond required by this Chapter.
5.
Inspection. When an Excavation has been made in the ROW, and
after the same has been properly backfilled, the Person making the
Excavation shall notify the Director that the same is ready for final
repair. The Director or his/her duly authorized agent shall inspect
the same. The judgment of the Director or his/her authorized agent
as to when an Excavation has been properly backfilled to permit final
repair shall be conclusive. If any Person fails to contact the Director
for an inspection within a reasonable time, as determined by the Excavation
Permit issued for the Excavation, after completion of the work, to
ensure that the Rights-of-Way or other public place has been restored
to as good a condition as it was previous to such Excavation being
made, the Excavation shall not be deemed complete and the ROW User
shall be in violation of this Chapter.
6.
Notice Of Completion. The ROW User shall notify the Director
upon completion of the Excavation or Facilities Maintenance authorized
by the Excavation Permit.
7.
Guarantee Of Work. Every ROW User in restoring the Rights-of-Way,
shall guarantee its work and shall maintain it for forty-eight (48)
months following its completion and in accordance with Section 67.1834,
RSMo. During the forty-eight (48) months, the ROW User shall, upon
notification from the Director, correct all restoration work to the
extent necessary, using any method as required by the Director. Said
work shall be completed within a reasonable time, not to exceed thirty
(30) calendar days, of the receipt of notice from the Director (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 Director
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
requirements. The guarantee period shall be applicable to failure
of the pavement surface as well as failure below the pavement surface.
[Ord. No. 8182, 5-13-2019]
A.
Inspections. All work and Facilities shall be subject to inspection
by the City and the supervision of all Federal, State, and local authorities
having jurisdiction in such matters to ensure compliance with all
applicable laws, ordinances, departmental rules and regulations, and
the Permit.
B.
Stop Work Orders. The Director shall have full access to all portions
of the work and may issue stop work orders and corrective orders to
prevent unauthorized work or substandard work as established herein.
Except in cases of an emergency or with approval of the Director,
no work may be done in violation of a stop work order issued by the
Director.
C.
Repairs When Defective. All violations of the standards and requirements
herein shall be corrected within the time specified in the issuance
of a written notice to correct. Action to correct violations which
require immediate action shall be taken upon notification to the Person
by the City. Every Person failing to comply with the oral or written
notice shall be deemed in violation of this Chapter. If the action
is not taken within the time period specified by notice and in addition
to any other remedy, the Director may have the violation, including,
but not limited to, the existence of mud or debris on the Rights-of-Way,
immediately remedied and the City's costs shall be reimbursed
by the ROW User through the surety or otherwise. Nothing in this Subsection
shall prevent prosecution of violation of this Chapter in the absence
or in addition to the issuance of notice of violation.
D.
Appeals. Unless otherwise provided herein or by any other governing
ordinance or law, any person aggrieved by a decision, fee or requirement
established or made pursuant to this Chapter shall, prior to seeking
any judicial or statutory relief, if any, fire a written appeal of
any such decision, fee, or requirement with the City Council within
fifteen (15) days of such decision or imposition of such fee or requirement
specifying this provision and including specific details of the alleged
claim or grievance, and an evidentiary hearing shall be held on such
appeal by the City Council or its designee to render a final decision.
Nothing herein shall deny or preclude any additional applicable appeal
remedy that may be granted and required by Federal or State law after
such decision.
E.
Enforcement; Attorneys' Fees. The City shall be entitled to
enforce any provision of this Code through all remedies lawfully available,
and any person determined to have violated the terms of this Code
shall further be liable to pay the City's costs and attorneys'
fees in enforcing such Code provisions. Additionally, any user of
City services, Rights-of-Way, or other City facilities or property,
shall, as a condition of such use or continued use, to the full extent
permissible by law, be liable to pay the City's costs and attorneys'
fees incurred in enforcing any lawful requirement applicable to such
use, whether arising in contract, statute, ordinance, or other enforceable
duty as to such use.
F.
Penalties. In addition to any other penalties and remedies for violations that may exist in law or equity, any Person that violates any provision of this Chapter shall be subject to such penalties as set forth in Chapter 100, Article II of the City Code per day for each and every day the violation exists or continues.
[Ord. No. 8182, 5-13-2019]
In addition to any rights specifically reserved to the City
by this Chapter, the City reserves unto itself every right and power
which is required to be reserved by a provision of any ordinance under
any registration, Permit, or other authorization granted under this
Chapter, and as may be authorized by Chapter 67, RSMo., and other
authority applicable to regulation of the use of the Rights-of-Way.
Notwithstanding anything to the contrary set forth herein, the provisions
of this Chapter shall not infringe upon the rights of any Person pursuant
to any applicable State or Federal Statutes, including, but not limited
to any right that may exist to occupy the Rights-of-Way.
