[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Chapter is now or in the future superseded or preempted by State or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.
[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.
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 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.
Any facilities located in the rights-of-way 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 City's Public Works Director or such other person designated
thereby to administer and enforce this Chapter.
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 construction, installation, repair, upgrade, or other
physical access to the facility in the rights-of-way that does not
involve excavation.
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.
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.
A corporation, partnership, proprietorship, individual, organization,
governmental entity or any natural person.
An excavation permit and/or a facilities maintenance permit.
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.
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.
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.
[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.
[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.
[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;
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]
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.
[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.
[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.
[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.
[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]
[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.
[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.
[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.
