City of Bolivar, MO Chapter 520 Excavations and Public Rights-Of-Way Management

Section 520.010 Applicability; Preemption.

[R.O. 2009 § 520.010; Ord. No. 3409, 12-5-2017]

A. Applicability. Except as provided for herein, and where limited by applicable law, this Chapter shall apply to all excavations and all use, construction, operation, and maintenance of facilities or structures in the rights-of-way of the City. No person shall commence or continue with the operation of any facilities or structures in the rights-of-way except as provided and in compliance with this Chapter. Because numerous types of users and uses of the rights-of-way 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 rights-of-way 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furthermore, if any Section, Subsection, sentence, clause, phrase, or portion of this Chapter is now or in the future superseded or preempted by State or Federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and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.

Section 520.020 Definitions.

[R.O. 2009 § 520.020; Ord. No. 3409, 12-5-2017]

For purposes of this Chapter, the following terms, phrases, words, and their derivatives shall have the meanings set forth in this Chapter, unless the context clearly indicates that another meaning is intended.

ABANDONED FACILITIES

Any equipment, materials, apparatuses, devices, or facilities that are:

1. Declared abandoned by the owner of such equipment or facilities;

2. 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;

3. The owner allows a franchise, agreement or license to expire and fails to cure within thirty (30) days after notice; or

4. As otherwise may be defined by applicable law.

APPLICANT

Any person who has applied for a ROW use agreement, franchise, license, ROW permit, or any other permit or other authorization to install, maintain, repair or otherwise physically access facilities in the rights-of-way.

CITY FACILITIES

Any facilities located in the rights-of-way and owned by the City.

COMMUNICATIONS SERVICE

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.

DIRECTOR

The City's Public Works Director or such other person designated thereby to administer and enforce this Chapter.

EXCAVATION, EXCAVATING, or EXCAVATE

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.

FACILITIES MAINTENANCE or MAINTENANCE

The construction, installation, repair, upgrade, or other physical access to the facility in the rights-of-way that does not involve excavation.

FACILITIES or FACILITY

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 of 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.

FRANCHISE

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.

LICENSE

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.

PERSON

A corporation, partnership, proprietorship, individual, organization, governmental entity or any natural person.

RIGHTS-OF-WAY (OR "ROW") PERMIT

An excavation permit and/or a facilities maintenance permit.

RIGHTS-OF-WAY (OR "ROW") USE AGREEMENT

The document granting consent by the City to use the City rights-of-way for the purpose of providing communication services or for such other use for which a franchise or license is not applicable and obtained as provided for herein.

RIGHTS-OF-WAY (OR "ROW") USER

All persons and entities, whether a Missouri Public Service Commission 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.

RIGHTS-OF-WAY 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.

Section 520.030 General Rights-Of-Way Obligations.

[R.O. 2009 § 520.030; Ord. No. 3409, 12-5-2017]

A. franchise, ROW use agreement, Or license 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, ROW use agreement, or license all subject to the requirement 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 ROW 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 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 an indefinite 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 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 rights-of-way or other public property as may be reasonably required by the Board of Aldermen, subject to applicable law.

C. Condition Precedent To ROW permit. Unless otherwise required by applicable law, no ROW permit may be issued to any person unless or until such person has a valid franchise, ROW use agreement, or license 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 ROW 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 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 or other structure within 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. 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. Subordinate Use. The ROW user's use shall be, in all situations, subordinate and subject to public municipal use. In situations where multiple users are in the same location, first the municipal use shall have priority followed by persons with a valid and current ROW use agreement, franchise, or license with the City, followed by all others.

I. No Interference. Every ROW user 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. 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.

J. 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 ROW 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 the 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 established time to cure the default, the City shall take action by an affirmative vote of the Board of Aldermen 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.

K. 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.

Section 520.040 Applications For Franchise Or ROW Use Agreement.

[R.O. 2009 § 520.040; Ord. No. 3409, 12-5-2017]

A. Application For Franchise Or ROW Use Agreement Required; Application Form. An application for a franchise or right-of-way 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 two hundred fifty dollars ($250.00), 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 amount.

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 franchises and ROW use agreements may be approved by ordinance or resolution of the Board of Aldermen 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, application deposit fee, and executed franchise or ROW 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 Board of Aldermen for approval. Upon determining compliance with this Chapter, the Board of Aldermen 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.

Section 520.050 Permit Required; Requirements.

[R.O. 2009 § 520.050; Ord. No. 3409, 12-5-2017]

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 sixty (60) 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. Facilities Maintenance Permit; Exceptions. 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. 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;

2. Emergency situations as more fully described in Subsection (D) below; or

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.

4. Routine maintenance on previously approved small wireless facilities as defined in Section 525.020 of the Code of the City of Bolivar, 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, as defined by Section 67.5111(14), RSMo., 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.

[Ord. No. 3542, 7-9-2019]

C. Bulk Permits. The Director shall have the authority to establish procedures for bulk processing of applications and periodic payment of fees.

D. 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.

E. ROW permit Specific Conditions. The Director and Public Works Director may also impose reasonable conditions upon the issuance of a ROW 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.

F. Codes Incorporated. Every ROW 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 ROW 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 ROW 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 Missouri 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.

G. 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 – 67.5121, RSMo.), and due to the limited space in the City's rights-of-way, to minimize obstructions and interference with the use of the rights-of-way and to ensure public 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 ROW, and the additional requirements set forth in this Subsection for wireless antennas and facilities.

[Ord. No. 3542, 7-9-2019]

1. General Conditions. Any wireless facility in the right-of-way 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 City to address changing infrastructure, technology, and uses of the right-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 520, 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 Article XII of Chapter 410 (the "Zoning Code").

2. Specific Conditions.

a. Small Wireless Facilities. Any small wireless facility meeting the requirements for a small wireless facility as defined in Chapter 525, Small Wireless Facility Deployment, shall be authorized to be located in the rights-of-way with approval of the Director subject to the provisions of Chapter 525 of the Code of the City of Bolivar.

b. All Other Wireless In Right-Of-Way. Any wireless facility located on a utility pole or existing structure but not meeting the requirements of small wireless facilities, above, may be approved, subject to conditions as may be imposed consistent with the purposes of this Section, only upon approval by the Board of Aldermen upon a determination by the Board of Aldermen 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" 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, right-of-way, and other applicable requirements.

3. Wireless Facility Compensation Requirements. If a small wireless facility is to be located on a City-owned structure or utility pole, an annual payment of one hundred fifty dollars ($150.00) per attachment, or such other higher amount as may be established by applicable law, shall be required.

H. Underground And Collocation Of Facilities Required; Exceptions. Except as provided herein or where prohibited by applicable law, no person may erect, construct or install new poles or other facilities above the surface of the rights-of-way without the written permission of the City based on good cause established by 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 the ROW 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 right-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 Board of Aldermen 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 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, reduced, or waived by the Director upon good cause shown by the applicant, including: (1) when and where nearby utility poles exist that are spaced closer than one hundred fifty (150) feet apart; (2) when conditions are such that no Existing Structure is available for placement of facilities; and (3) where the utility pole can be placed to be minimally visually intrusive.

[Ord. No. 3542, 7-9-2019]

I. (Reserved)[1]

[1] Editor's Note: Former Subsection (I), regarding Use of Existing Poles/facilities Required; Exceptions, was repealed 7-9-2019 by Ord. No. 3542.

J. Notice Required. In the case of new construction or property development, the developer or property owner shall give reasonable written notice, to other potential ROW users as directed by the City, of the particular date on which open trenching will be available for installation of facilities. Costs of trenching and easements required to bring facilities in the development shall be borne by the developer or property owner; except that if the facilities are not installed within five (5) working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then once the trenches are thereafter closed, the cost of new trenching shall be borne by the person installing the facilities.

K. 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 cannot safely bear the weight or wind loading thereof, or any other Facility or location that in the reasonable judgment of the Director 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.

[Ord. No. 3542, 7-9-2019]

L. Tree Trimming. 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 paragraph 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.

Section 520.060 Permit Denial.

[R.O. 2009 § 520.060; Ord. No. 3409, 12-5-2017]

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 ROW 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 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.

Section 520.070 Permit Revocation.

[R.O. 2009 § 520.070; Ord. No. 3409, 12-5-2017]

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.

Section 520.080 Relocation Of Facilities.

[R.O. 2009 § 520.080; Ord. No. 3409, 12-5-2017]

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 ROW 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 (F) 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 ROW user remove the obstructing facilities with or without further delay and ROW user shall bear all responsibility and liability for the consequences therefrom, and the City shall bear no responsibility to 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.

Section 520.090 ROW User Responsibilities And Requirements.

[R.O. 2009 § 520.090; Ord. No. 3409, 12-5-2017]

A. 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 as 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 all 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. Any self-insurance or deductible above fifty thousand dollars ($50,000.00) must be declared to and pre-approved by the City. 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. 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 Sections 67.5110 – 67.5121, RSMo.) 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 reserves the right to waive any and all requirements under this Section when deemed to be in the public interest.

[Ord. No. 3542, 7-9-2019]

B. Indemnification. Any person performing excavation or 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 ROW permit; provided, however, that in accordance with Section 67.512(2), RSMo., a ROW user solely to the extent a ROW user is operating a "small wireless facility" as defined in the Uniform Small Wireless Facility Deployment Act (Sections 67.5110 – 67.5121, RSMo.) 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.

C. Performance And Maintenance Bonds.

[Ord. No. 3542, 7-9-2019]

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 520.100(B)(4). 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 requirement herein shall not apply to a ROW user who has on file with the City an affidavit certifying that it has twenty-five million dollars ($25,000,000.00) in net assets and is otherwise therefore so exempted.

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 (Sections 67.5110 – 67.5121, RSMo.) shall not exceed one thousand five hundred dollars ($1,500.00) per "small wireless facility" or more than 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.

D. 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 ROW 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.

E. No Cause Of Action Against The City. As a condition of use of the rights-of-way for facilities, 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 or franchise, 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.

F. 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 Zone District Map, and (2) no application for a wireless facility 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.

G. 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.

H. 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 or other detailed maps showing the exact location of new 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.

[Ord. No. 3428, 2-6-2018]

Section 520.100 Standards For All Work Within The ROW.

[R.O. 2009 § 520.100; Ord. No. 3409, 12-5-2017]

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. General. 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.

2. 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.

3. Inspection. 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.

4. Guarantee. 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.

5. No Waiver. 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.

C. ROW Permit Displayed. At all times during the work, ROW permits shall be conspicuously displayed at the work site and shall be available for inspection by the Director or Public Works Director.

D. Modification Requiring New ROW 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 ROW permit, the ROW user shall inform the Director. The Director may issue a waiver, an extension or revised ROW permit, or require that the ROW user reapply for a ROW permit in accordance with all requirements of this Chapter.

Section 520.110 Jurisdiction, Inspection, Stop-Work Orders, Appeals, And Penalties.

[R.O. 2009 § 520.110; Ord. No. 3409, 12-5-2017]

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 ROW 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. 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 Board of Aldermen 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 Board of Aldermen 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.

D. 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.

E. 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 Section 100.220 of the Code of the City of Bolivar per day for each and every day the violation exists or continues.

Section 520.120 Reservation Of Rights.

[R.O. 2009 § 520.120; Ord. No. 3409, 12-5-2017]

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.