[Ord. No. 17-567, 4-10-2017]
A. Applicability.
Except as provided for herein and where limited by applicable law,
this Chapter shall apply to all Excavations and use, construction,
operation, and Maintenance of Facilities or structures, in the ROW
of the Village. No Person shall commence or continue with the operation
of any Facilities or structures in the ROW except as provided and
in compliance with this Chapter. Because numerous types of users and
uses of the ROW may be subject to various or changing regulatory schemes
under Federal or State law, any such limitation or qualification that
may be applicable less than all users and uses of the ROW are not
duplicated herein, but are nevertheless incorporated herein, whenever
application is so required by law, including but not limited to applicable
provisions of Chapter 67, RSMo., and other applicable State and Federal
law.
B. Preemption.
No provision of this Chapter shall apply to any circumstance in which
such application shall be unlawful under superseding Federal or State
law and furthermore, if any section, subsection, sentence, clause,
phrase, or portion of this Chapter is now or in the future superseded
or preempted by State or Federal law or found by a court of competent
jurisdiction to be unauthorized, such provision shall be automatically
interpreted and applied as required by law.
[Ord. No. 17-567, 4-10-2017]
For purposes of this Chapter, the following terms, phrases,
words, and their derivatives shall have the meanings set forth in
this Section, unless the context clearly indicates that another meaning
is intended.
ABANDONED
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 and the owner of such equipment
or Facilities fails to respond within thirty (30) days to a written
notice sent by the Village, or 3) as otherwise may be defined by applicable
law.
ABOVE-GROUND FACILITIES
Any Facilities located above the surface of the ground, including
the underground supports and foundations for such Facilities.
ANTENNA
Any device that transmits and/or receives electromagnetic
wireless radio waves or signals for voice, data or video communications
purposes, including, but not limited to, television, text, AM/FM radio,
microwave, cellular telephone, Communications Service or otherwise.
APPLICANT
Any Person applying for a ROW Use Agreement, Franchise, License,
or any permit or other authorization to install, maintain, repair
or otherwise physically access Facilities in the ROW.
COMMUNICATIONS SERVICE
The transmission via Facilities, in whole or in part, of
any writing, 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, which if proposed must be expressly separately requested
below.
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.
EXCAVATION PERMIT
A permit authorizing Excavation for the construction or installation
of Facilities in the Village's Rights-of-Way.
EXCESS CAPACITY
The remaining volume or capacity in any existing or future
duct, conduit, manhole, handhold or other Facility, including dark
fiber, in the ROW that is used, or authorized by the ROW User to be
used, by others.
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 lawful vehicular
parking or use or lawful minor incidental uses such as mailboxes,
driveway aprons, private utility connections or other incidental Facilities
which may be permitted by license issued by the Director as provided
herein.
FACILITIES MAINTENANCE PERMIT or MAINTENANCE PERMIT
A permit issued by the Village for the ROW User to provide
Maintenance to its Facilities or otherwise perform work in the ROW
that does not involve Excavation but requires physical access to the
Facilities in the ROW.
FCC
The Federal Communications Commission.
FRANCHISE
The rights and obligations extended by the Village to 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 within the Village's
limits and boundaries.
LICENSE
The rights and obligations extended by the Village to a Person
to use and occupy the Rights-of-Way for the purpose of installing
temporary Facilities in the Rights-of-Way or incidental uses such
as ingress and egress facilities, lateral utility lines, mailboxes
or driveway aprons.
PERSON
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
PERMIT
An Excavation Permit or a Facilities Maintenance Permit.
RESELLER SERVICE PROVIDER
A Person does not have its own Facilities in the Rights-of-Way,
but instead uses the Rights-of-Way by interconnecting with or using
the network elements of another ROW User utilizing the Rights-of-Way,
and/or by leasing Excess Capacity from an entity having Facilities
in the Rights-of-Way.
RIGHTS-OF-WAY or ROW
The area on, below, or above a public roadway, highway, street
or alleyway in which the Village has an ownership interest or right
of management, and including such adjacent areas within such public
ways within such Village control, except as may be limited herein
or by law.
RIGHTS-OF-WAY USE AGREEMENT or ROW USE AGREEMENT
The rights and obligations extended by the Village to a Person
to occupy the ROW for the purpose of providing any form of Communications
Service to any Person or area within the Village's limits and boundaries,
or any other Person desiring to use the ROW for which a Franchise
or License is not applicable, subject to the regulations and requirements
herein.
ROW USER
All Persons and entities, whether a PSC registered utility
or otherwise, owning, controlling, leasing, maintaining, using or
installing Facilities in the Rights-of-Way of the Village, not otherwise
expressly exempted. A ROW User shall not include Reseller Service
Provider.
PSC
The Missouri Public Service Commission.
UNDERGROUND FACILITIES
All Facilities located under the surface of the ground, excluding
the underground foundations or supports for Above-Ground Facilities.
VILLAGE
The Village of Marlborough, Missouri.
[Ord. No. 17-567, 4-10-2017]
A. ROW
Use Agreement, License, Or Franchise Required. Except where otherwise
authorized or required by applicable law, no Person may own, control,
lease, maintain, use, or install Facilities in the Rights-of-Way without
a valid Franchise, License, or ROW Use Agreement with the Village
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 within the Village'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 only 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 mailboxes, driveway
aprons, ingress or egress facilities, and similar incidental uses,
that utilize a small area of the Rights-of-Way and serves the principal
structure, may be permitted without a Franchise or Rights-of-Way Use
Agreement pursuant to a License issued by the Director. The Director
shall have discretion to establish such application, requirements,
and conditions applicable to such uses consistent with the purposes
of this Chapter or as otherwise established by law. Any Person granted
a License hereunder shall be subject to the applicable requirements
of this Chapter.
B. Grant
And Nature Of Approval; Terms And Compensation. The authority granted
by the Village 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 Village 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 Village specifically reserves the right to grant, at any time,
such additional agreements or other rights to use the Rights-of-Way
for any purpose and to any other Person, including itself, as it deems
appropriate, subject to all applicable laws. The granting of any ROW
Use Agreement, License or Franchise 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. All Franchises and ROW Use Agreements
shall be approved by ordinance or resolution of the Governing Body
on a non-discriminatory basis provided that the Person is in compliance
with all applicable requirements. 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 Village, except as may be expressly stated in such Use Agreement,
License or Franchise. The Village may require compensation for use
of the ROW or other public property as may be reasonably required
by the Governing Body, subject to applicable law.
C. No
Warranty. The Village 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 damage 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 ROW 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.
D. Use
Of Village Or Third-Party Facilities. No ROW Use Agreement, Franchise,
or License shall grant the right to use Facilities owned or controlled
by the Village or a third party, and no such use shall occur, without
the express written consent of such party (on file with the Village
and subject to other applicable requirements), nor shall any Franchise,
ROW Agreement or License excuse such Person from first obtaining a
pole attachment agreement or other express consent for such right
or use before locating on the Facilities controlled or owned by the
Village or a third party.
E. Lease
Required For Public Lands. Unless otherwise provided, use or installation
of any Facilities in non-Rights-of-Way public property of the Village
shall be permitted only if a lease agreement or other separate written
approval has been negotiated and approved by the Village with such
reasonable terms as the Village may require.
F. Condition
Precedent To Permit. Unless otherwise required by applicable law,
no Permit may be issued unless or until such Person has a valid Franchise,
License or Rights-of-Way Use Agreement with the Village.
G. Transferability.
Except as provided in this Chapter or as otherwise required by law,
no Franchise, ROW Use Agreement, or Permit may be transferred or assigned
without the written application to and consent of the Village based
on the requirements and policies of this Chapter. The Village shall
not unreasonably withhold its consent as provided herein, but any
costs incurred shall be paid by the ROW User to the extent allowed
by law.
H. Forfeiture
Of Agreement And Privilege. In case of failure on the part of the
ROW User, including its successors and assigns to comply with any
of the provisions of this Chapter or a ROW Use Agreement, Franchise,
License or other authorization, 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 Village, the ROW User, its successors and assigns shall forfeit
all rights and privileges permitted by this Chapter and any ROW Use
Agreement, Franchise, License or other authorization, and all rights
hereunder shall cease, terminate and become null and void, provided
that said forfeiture shall not take effect until the Village shall
carry out the following proceedings: Before the Village declares the
forfeiture or revocation of a Rights-of-Way Use Agreement, Franchise,
License or other authorization, 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 Governing Body, in which
to cure the default by complying with the conditions of the ROW Use
Agreement, Franchise, License or other authorization or requirement
and fully remedying any default or violation. If at the end of such
period the Village determines that the conditions have not been complied
with and that the Person did not reasonably and in the public interest
require more than thirty (30) days to cure the default, the Village
shall take action by an affirmative vote of the Governing Body present
at the meeting and voting to terminate the ROW Use Agreement, Franchise,
License or other authorization, setting out the grounds upon which
said agreement or other authorization is to be forfeited or revoked.
Nothing herein shall prevent the Village 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.
[Ord. No. 17-567, 4-10-2017]
A. Application
Required. An application for a Franchise or ROW Use Agreement, on
Village forms, shall be presented to the Director in writing and shall
include all such information as is required by this Section. The ROW
User shall be responsible for accurately maintaining the information
in the application during the term of any Franchise or ROW Use Agreement
and shall be responsible for all costs incurred by the Village due
to the failure to provide or maintain as accurate any application
information required herein.
B. Application
Deposit Fee. An application deposit fee for review, documentation,
and approval of such Use Agreement or Franchise shall be established
by the Village to recover any actual costs anticipated and incurred
by the Village in reviewing, documenting, or negotiating such ROW
Use Agreement or Franchise, provided that no costs shall be included
if such inclusion is prohibited by applicable law as to that Person.
If the actual costs are thereafter determined to be less than the
application deposit fee, such amount shall be returned to the Person,
after written request therefrom; if the actual costs exceed the application
deposit fee, such Person shall pay such additional amount prior to
issuance of any final Village approval after written notice from the
Village.
C. Application
Form. An Applicant shall submit a completed application for a Franchise
or Rights-of-Way Use Agreement on such form provided by the Village,
which shall include information necessary to determine compliance
with this Chapter, including, but not limited to:
1. Identity and legal status of the Applicant;
2. Name, address, telephone number, and email address of each officer,
agent or employee responsible for the accuracy of the application.
Each officer, agent or employee shall be familiar with the local Facilities
of the Applicant, shall be the Person(s) to whom notices shall be
sent and shall be responsible for facilitating all necessary communications,
including, but not limited to, certification to the Village of any
material changes to the information provided in such completed application
during the term of any Franchise or ROW Use Agreement;
3. Name, address, telephone number, and email address of the local representative
of the Applicant who shall be available at all times to act on behalf
of the Applicant in the event of an emergency;
4. Proof of any necessary permit, license, certification, grant, registration,
franchise, agreement or any other authorization required by any appropriate
governmental entity, including, but not limited to, the FCC or the
PSC;
5. Description of the Applicant's intended use of the Rights-of-Way,
including such information as to proposed services so as to determine
the applicable, Federal, State and local regulatory provisions as
may apply to such User;
6. A list of authorized agents, contractors and subcontractors eligible
to obtain Permits on behalf of the Applicant. The list may be updated
to add such Person at the time of Permit application if the updated
information on the application is submitted by an authorized representative
of the Applicant;
7. Information sufficient to determine the amount of net assets of the
Applicant;
8. Information sufficient to determine whether the Applicant is subject
under applicable law to franchising, service regulation, payment of
compensation for the use of the Rights-of-Way, taxation or other requirements
of the Village;
9. Any request including one (1) or more antennas shall also include
all requirements for installation of antennas and wireless facilities
set forth in the Uniform Wireless Communications Infrastructure Deployment
Act (Sections 67.5090, et. seq., RSMo.) or other applicable; and
10. Such other information as may be reasonably required by the Director
to determine requirements and compliance with applicable regulation.
D. Standard
For Approval Or Renewal Of ROW Use Agreements. In reviewing an application
for a new or renewal ROW Use Agreement, the Village may consider prior
conduct of the Person in performance of its obligations or compliance
with the Village's ordinances in the past, or the existence of any
outstanding violations or deficiencies. The Village 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 Village or as otherwise provided
by law. Applications for ROW Use Agreements or Franchises may be approved,
denied, or approved with conditions consistent with requirements of
applicable law or other applicable requirements as may be necessary
to fulfill the requirements and objectives of this Chapter.
E. Approval
Process. After submission by the Applicant of a duly executed and
completed application and application fee and executed Franchise or
Rights-of-Way Use Agreement as may be provided by the Director or
as modified by the Director in review of the specific circumstances
of the application, all in conformity with the requirements of this
Chapter and all applicable laws, the Director shall submit such agreement
to the Governing Body for approval. Upon determining compliance with
this Chapter, the Governing Body may authorize execution of the Franchise
or ROW Use Agreement (or a modified Agreement otherwise acceptable
to the Village 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 Village 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.
[Ord. No. 17-567, 4-10-2017]
A. ROW
User Authority; Obligations. A ROW User is authorized, subject to
other applicable requirements, to sell or transfer use of Excess Capacity
to Reseller Service Providers or other entities, provided that such
entity either: (1) has no right to and does not physically access
the Facilities while in the ROW, or (2) has a separate Franchise or
ROW Use Agreement or other written agreement or consent authorizing
the same with the Village. In the event of such sale or transfer to
a Reseller Service Provider, the ROW User shall notify the Village
of the same prior to such action so that the Village can review compliance
regarding doing business in the Village. This notice shall not relieve
the Reseller Service Provider from its own obligation to register,
pay taxes, and obtain any necessary authorization from the Village.
B. Registration
Of Reseller Service Providers And Exempt Entities.
1. Reseller Service Provider Registration. Prior to providing service
(including sale or transfer of product or service) within the Village
or acquiring or using Excess Capacity through Facilities in the Village,
Reseller Service Providers shall register with the Village the intent
to do so and shall include: (1) identity of the Reseller Service Provider
and certification of the applicable regulatory approval necessary
to undertake such service, (2) the name of the provider(s) owning
the Facilities within the Village through which the service shall
be transmitted; (3) name, address, telephone number, and email address
of an officer, agent or employee responsible for the accuracy of the
registration, and contact information for a person to speak on behalf
of the Reseller Service Provider, if different; and (4) such other
information as requested by the Director. It shall be unlawful for
any Reseller Service Provider not having its own Rights-of-Way Use
Agreement, License, or Franchise to have its own Facilities in the
Rights-of-Way, have the right to physically access the Facilities
in the Rights-of-Way, or to transmit service for commercial purposes
through any Facility owned by a Person without a valid Rights-of-Way
Use Agreement or other Village authorization for such Facilities.
It shall be the duty of a Reseller Service Provider to report any
changes to its registration information within thirty (30) days of
such change.
2. Exempt Entity Registration. Prior to providing service within the Village, transmitting communications through Facilities in the Village, or constructing in the Rights-of-Way, entities not required to obtain a Franchise, License, or Rights-of-Way Use Agreement due to superseding Federal or State law, shall nevertheless be required to register with the Village by providing the Village the information required by the Rights-of-Way application in Section
616.040. It shall be the duty of such exempt entity to report any changes to such registration information within thirty (30) days of such change.
C. Reseller
Service Provider Obligations. Any Reseller Service Provider that buys
or leases Excess Capacity or other services for resale from a ROW
User, shall be subject to the terms and conditions of this Chapter,
including the requirement to first register with the Village and obtain
any necessary permit, license, certification, grant, registration,
franchise agreement or any other authorization required by any appropriate
governmental entity, including, but not limited to, the Village, PSC
or the FCC. If a Person through such lease or purchase owns Facilities
in the Rights-of-Way or has the right to physically access or maintain
any Facilities in the Rights-of-Way, then such Person no longer meets
the definition of a Reseller Service Provider and is required to first
obtain a Franchise, License, or Rights-of-Way Use Agreement as required
herein.
[Ord. No. 17-567, 4-10-2017]
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 Village, 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 Director is authorized to draft an application
form consistent with the requirements of this Chapter, including the
information required for a Franchise or ROW Use Agreement in addition
to: an engineering site plan showing the proposed location of the
Facilities work, the length, size, type, and proposed depth of any
conduit or any other enclosures, the relationship of all Facilities
to all existing streets, the number of road crossings, the number
of entrance drive crossings, the locations of existing ROW Facilities,
and the number and character of each proposed cut or Excavation. 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 Village that is not ROW. 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. Local
Representative Designation. Each ROW User shall designate a local
person familiar with the Facilities that shall act as a local agent
for the ROW User and shall be responsible for satisfying information
requirements of this Chapter. The ROW User shall present to the Village
the agent's name, address, telephone number, and email address. The
agent shall be the person to whom relocation notices and other such
notices shall be sent, and with whom rests the responsibility to facilitate
all necessary communications. The ROW User shall be responsible for
all costs incurred by the Village due to the failure to provide such
information to the Village.
C. Facilities
Maintenance Permit; Exemptions. No Person shall perform Facilities
Maintenance 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 Maintenance location or is exempt herein.
In addition to the conditions set forth below, conditions of a Facilities
Maintenance Permit shall be as established in such Maintenance Permit
and shall include requirements of notice to the Village 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 Maintenance 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 Village during normal business hours;
2. Emergency Situations as more fully described in Subsection
(E) below; or
3. Contractors working on the construction or reconstruction of public
improvements and which are operating pursuant to a contract with the
Village for such construction.
D. Bulk Or
Individual Permits. The Director may issue individual Permits for
specific proposed Excavations or Facilities Maintenance or may issue
bulk Permits covering multiple projects, types of actions, or locations
during a period of up to one (1) year that may be thereafter performed
during that Permit year. Where a bulk Permit is proposed, the ROW
User shall provide sufficient information regarding the types of actions
and locations to be approved so as to allow the Director to condition
and ensure compliance with safety and other regulations herein.
E. Emergencies.
In case of an emergency requiring immediate attention to remedy defects,
and in order to prevent loss or damage to Persons or property, it
shall be sufficient that the Person making such Excavation or performing
such Facilities Maintenance obtain the necessary Permit as soon as
possible and may proceed without a Permit when such Permit cannot
reasonably be obtained before starting such emergency Excavation or
Facilities Maintenance. Notice to the Village of the emergency shall
be provided at the earliest possible time and the appropriate Permit
shall be obtained as soon as reasonably possible, and not later than
five (5) business days, or as otherwise directed by the Village. In
the event the Village becomes aware of an emergency requiring Facilities
work, the Village shall attempt to contact a representative of each
ROW User affected, or potentially affected, by the emergency work.
If no response is received by a particular ROW User to whom contact
is attempted, the Director may take whatever action he/she deems necessary
to respond to the emergency, the cost of which shall be borne by the
Person whose action or inaction occasioned the emergency or by the
ROW User if the emergency was occasioned by an act of nature.
F. Law
Compliance Incorporation. Every Permit issued hereunder shall incorporate
the requirements and terms of this Chapter, and all applicable ordinances,
to the extent permitted by law. The ROW User shall perform such work
in accordance with the issued permit and applicable provisions of
this Chapter and any subsequent ordinances or regulations that may
be adopted by the Village regarding Excavation or 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 Village in the reasonable exercise of
its police power relating to Permits and fees, sidewalk and pavement
cuts, Facility location, construction coordination, surface Restoration,
and other requirements on the use of the Rights-of-Way. A ROW User
shall perform all Excavations or Facilities Maintenance in full compliance
with all applicable engineering codes adopted or approved by the Village,
and in accordance with applicable statutes of the State of Missouri,
and the rules and regulations of the PSC, FCC, 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. Stop
Work Orders. Any ROW User found to be working without a required Permit,
failing to provide for required safety and traffic control measures,
or otherwise violating any requirements herein, may be directed to
stop work until the necessary Permit is obtained, the appropriate
measures are implemented, or violations are discontinued or remedied
in accordance with this Chapter. Except in cases of an Emergency or
with approval of the Director, no Rights-of-Way Excavation or Work
may be done in violation of a stop work order issued by the Director.
H. Plans
Required. At least thirty (30) days before the beginning of any installation,
removal, or relocation of its Facilities, the ROW User shall submit
detailed plans of the proposed action to the Director. The Director
shall, within thirty (30) days of receipt of such plans, either approve
the plans or inform the ROW User of the reasons for disapproval.
I. Subsurface
Utility Engineering Survey. Unless determined by the Director as unnecessary,
prior to the commencement of any construction or alteration of its
Facilities located in the Rights-of-Way, the ROW User shall furnish
to the Director a subsurface utility engineering study on the proposed
route of construction, expansion, or alteration, which shall consist
of the following tasks:
1. All available plans, plats, and other location data indicating the
existence and approximate location of all Facilities along the proposed
construction route;
2. Completion of a visual survey and written record of the location
and dimensions of any Above-ground features of any Underground Facilities
along the proposed construction route, including, but not limited
to, manholes, pedestals, valve boxes, utility boxes, posts, and visible
street cut repairs;
3. Plot and incorporate the data obtained from completion of tasks (1)
and (2) above onto the provider's proposed Facilities route maps,
plan sheets, and computer-aided drafting and design (CADD) files;
and
4. Provide all such data collected into a CADD file (or other format
as may be identified by the Director) compatible with that used by
the Director and deliver a copy to the Director.
J. Permit
Specific Conditions. The Director may also impose reasonable conditions
upon the issuance of a Permit and the performance of Excavation and
ROW work in order to protect the public health, safety, and welfare,
to ensure the structural integrity of the Rights-of-Way, to protect
the property and safety of other users of the Rights-of-Way, and to
minimize the disruption and inconvenience to the traveling public.
Such reasonable conditions may include, but are not limited to:
1. The amount of Excavation or Facilities Maintenance which may occur
at one (1) time and the amount of Rights-of-Way which may be obstructed
during construction;
2. The number or size of conduits or other Facilities that may be installed
by each ROW User based on the reasonable needs to ensure that no one
(1) ROW User may unreasonably consume a disproportionate amount of
the available Rights-of-Way to deter competition or deprive the public
or others of the reasonable use of the Rights-of-Way;
3. Posting of an additional or larger performance and maintenance bond for additional Facilities, except as otherwise provided in Section
616.150 hereof, when the established amount is reasonably determined to be insufficient;
4. The design, location, and nature of all Facilities, based on a non-discriminatory
basis in ensuring the safe, efficient, and appropriate use of the
ROW consistent with this Chapter and applicable law; and
5. Other reasonable conditions regarding the timing, safety precautions,
space, or specific implementation of the specific work proposed.
[Ord. No. 17-567, 4-10-2017]
A. Open
Excavations; Street-Plate Bridging. The ROW User shall not permit
an Excavation to remain open or Facilities Maintenance actions to
continue in the Rights-of-Way longer than is necessary to complete
the repair, installation or action, and in no event may an Excavation
or Facilities Maintenance remain open or continue beyond the expiration
of the Excavation Permit or any approved extension. Unless otherwise
approved by the Director in writing, all Excavations shall be filled
in or covered at the end of each working day. Street plate bridging
(SPB) to cover open Excavations shall be authorized subject to requirements
contained in the standard specifications.
B. Interference
Control. The ROW User Excavating in the Rights-of-Way shall cause
the Excavation to be done with the least possible injury to the pavement,
sidewalk, curbing, parkway, or other surface and shall place the materials
from the Excavation where they will cause the least possible inconvenience
to the public and permit the uninterrupted passage of water along
the gutters. The width of the Excavation shall be no greater than
is necessary for doing the work.
C. Erosion
Control. Before new Excavation or construction is commenced and until
sodding, planting, concreting, paving, or other final surfacing is
in place, which will avoid washing or spreading of dirt and mud onto
other property, sidewalks, curbs, gutters, streets, and the Rights-of-Way,
the ROW User shall erect and maintain approved temporary erosion control
measures to prevent such washing or spreading of materials. At the
end of each day and as required throughout the day during the course
of Excavating or construction, dirt and mud on the sidewalks, curbs,
gutters, streets, and the Rights-of-Way resulting from work must be
removed.
D. Cleaning Up;
Removing Mud From Vehicles. The Person doing the Excavating or other
ROW work under the requirements of this Chapter shall immediately,
after the work is completed and the refill is made, clean up and haul
away all surplus earth, rock, debris, or other rubbish. The ROW User
shall remove dirt from the wheels of all vehicles leaving any site
where mud has accumulated on the wheels before such vehicles enter
any public street of the Village. It shall be unlawful for any ROW
User to permit any vehicles to leave such place with mud on the wheels
which is liable to be dispersed over any public street of the Village
and it shall be unlawful for any driver of a vehicle to enter upon
the public streets of the Village without having removed or had mud
removed from the wheels prior to such entry. Each occurrence shall
be a separate offense. The ROW User shall be responsible for damages
to the Village, or its contractors, resulting from such failure and
shall indemnify the Village and its contractors as provided herein
and pay the costs for remedying such failure.
E. Spilling
Materials Onto Rights-Of-Ways. The ROW User shall load materials on
any vehicle so no portion thereof shall be spilled or be liable to
be spilled on the streets of the Village. It shall be unlawful for
any ROW User to permit any vehicle to enter upon the streets of the
Village loaded in violation of this provision and it shall be unlawful
for any Person to operate a vehicle on the streets of the Village
which is loaded in such manner that it spills or is liable to spill
mud, dirt, or other materials on the streets.
F. Barricades
And Safety Devices. The ROW User assumes the sole responsibility for
maintaining proper barricades, plates, safety fencing, and/or lights
as required from the time of opening of the ROW until the Excavation
is surfaced and opened for travel. All Excavations and Facilities
Maintenance that disturb traffic or pedestrian travel shall be barricaded
in such a manner as to protect both pedestrians and vehicular traffic.
Such Excavations, Facilities Maintenance, and barricades shall be
lighted at night with danger signals in such a manner that all traffic
may be warned of the existence and location of such Excavations, Facilities
Maintenance, and barricades.
G. Traffic
Control. Whenever there is an Excavation or Facilities Maintenance
by the ROW User, the ROW User shall be responsible for providing adequate
traffic control to the surrounding area as determined by the Director.
All traffic control devices shall be in compliance with the current
version of the standard specifications and the Manual of Traffic Control
Devices (MUTCD), unless otherwise agreed to by the Village. All surplus
Excavation materials, tools, or supplies at the site of the Excavation
or Facilities Maintenance shall be barricaded and lighted at night
in the manner described in this Section. In the event the Excavation
or Facilities Maintenance is not completed in a reasonable period
of time, the ROW User may be liable for actual damages to the Village
for delay caused by the ROW User pursuant to this Chapter.
H. Hours
Of Activity. Non-emergency Excavations or Facilities Maintenance effecting
traffic on arterial and collector streets may not be performed during
the hours of 7:00 a.m. to 8:30 a.m. and 4:00 p.m. to 6:00 p.m., in
order to minimize disruption of traffic flow. The ROW User shall perform
Excavations or Facilities Maintenance on the Rights-of-Way at such
times that will allow the least interference with the normal flow
of traffic and the peace and quiet of the neighborhood, and shall
not work between the hours of 11:00 p.m. and 6:00 a.m.
I. Methods
Of Pavement Removal, Excavation, And Backfill. The Person making an
Excavation shall abide by the following conditions:
1. The initial cut in a street pavement shall be equal to the width
of the trench with the option of being jack hammered or saw cut. The
final cut in an asphaltic concrete street pavement shall be one (1)
foot wider than the trench width and shall be made only by saw cutting
of the pavement.
2. For cuts in concrete paved streets, concrete pavement replacement
shall be full slab length (joint-to-joint) and full slab width (curb
or gutter to street centerline) unless specifically authorized otherwise
by the Director.
3. Refill Excavation with suitable unfrozen materials free from trash,
rubbish, vegetative and deleterious material, and/or rocks over three
(3) inches in maximum dimension, in layers not exceeding eight (8)
inches in depth and each layer shall be compacted thoroughly.
4. Compaction shall meet or exceed the most current version of the standards
and conditions of the Village and the ASTM International (American
Society for Testing and Materials). If inspections were not requested
or a valid Excavation Permit obtained, the Village may require compaction
testing by a registered professional engineer licensed in the State
of Missouri at the ROW User’s expense.
J. Repairs
When Defective. All violations of the standards and requirements herein
shall be corrected within the time specified in the issuance of a
written notice to correct. Action to correct violations which require
immediate action shall be taken upon notification to the Person by
the Village. Every Person failing to comply with the oral or written
notice shall be deemed in violation of this Chapter. If the action
is not taken within the time period specified by notice and in addition
to any other remedy, the Director may have the violation, including
but not limited to, the existence of mud or debris on the Rights-of-Way,
immediately remedied and the Village’s costs shall be reimbursed
by the ROW User through the surety or otherwise. Nothing in this Subsection
shall prevent prosecution of violation of this Chapter in the absence
or in addition to the issuance of notice of violation.
K. Inspection
And Acceptance Of Excavations After Backfilling And Settlement. When
an Excavation has been made in the ROW, and after the same has been
properly backfilled, the Person making the Excavation shall notify
the Director that the same is ready for final repair. The Director
or his/her duly authorized agent or contractor shall inspect the same.
The judgment of the Director or authorized agent as to when an Excavation
has been properly backfilled to permit final repair shall be conclusive.
L. Final
Repair Of Excavations; Specifications; Village Restoration. After
inspection and acceptance of Excavation by the Director, the Person
shall be responsible for Restoration of the affected Rights-of-Way,
including pavement and its foundation, pursuant to and in accordance
with the standard and conditions of the Village, to be completed prior
to expiration of the Excavation Permit. If the Excavation is not properly
completed and Restored by the expiration of the Excavation Permit,
the Village may, in addition to all other remedies, perform the Restoration
and completion and obtain reimbursement for such costs from the ROW
User or surety, provided that if the Village provides an invoice to
the ROW User for such Restoration, such invoice shall be paid in not
more than thirty (30) days of such invoice.
M. Notice
Of Completion. The ROW User shall notify the Director upon completion
of the Excavation or Facilities Maintenance authorized by the Excavation
Permit.
N. Guarantee
Of Work. Every Person to whom an Excavation Permit has been granted
or otherwise performed Excavations, shall guarantee for a period of
four (4) years the Restoration of the Rights-of-Way in the area where
such Person conducted an Excavation and performed the Restoration.
Such Person shall guarantee and pay for the Restoration of the Rights-of-Way
against sagging, buckling, deterioration, and other premature failures
of the Restoration. During said guarantee period, the ROW User shall,
upon notification from the Director, correct all Restoration, Excavation,
or Work to the extent necessary, using any method as required by the
Director. Said Excavation or Work shall be completed within a reasonable
time, not to exceed thirty (30) calendar days of the receipt of notice
from the 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, if the Director determines there
was action by the ROW User not to comply with the conditions of the
Excavation Permit and any Restoration requirements. The guarantee
period shall be applicable to failure of the pavement surface as well
as failure below the pavement surface.
[Ord. No. 17-567, 4-10-2017]
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
registration Franchise, License, or Rights-of-Way Use Agreement, or
other authorization with the Village.
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 Village
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 Village. For purposes of this
Section, "history of non-compliance or permitting non-compliance within
the Village" 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 Village.
4. The Village 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 Village, State or Federal law or regulation,
except where such violation is prohibited by applicable law for being
a basis for denial.
6. The Village determines that the denial is necessary to protect the
public health and safety, provided that the authority of the Village
does not extend to those items under the jurisdiction of the PSC,
such denial shall not interfere with a ROW User's right of eminent
domain of private property, and such denials shall only be imposed
on a competitively neutral and non-discriminatory basis. In determining
whether denial of a Permit application is necessary to protect the
public health and safety, the Director may consider one (1) or more
of the following factors:
a. The extent to which the Rights-of-Way space where the Permit is sought
is available, including the consideration of competing demands for
the particular space in the Rights-of-Way, or other general conditions
of the Rights-of-Way;
b. The applicability of any ordinance, code provision, or other regulations
that affects the location of Facilities in the Rights-of-Way;
c. The degree and nature of disruption to surrounding communities and
businesses that will result from the use of that part of the Rights-of-Way,
including whether the issuance of a Permit for the particular dates
and/or times requested would cause a conflict or interfere with an
exhibition, celebration, festival, or any other event;
d. The area is environmentally sensitive as defined by State Statute
or Federal law or is a historic district designated by Village ordinance;
and
e. The failure to comply with applicable Village ordinances, or any
other violation, unsafe conditions, or damage or threatened harm to
the Rights-of-Way or public, except where such circumstance would
otherwise not constitute a lawful basis for denial of a Permit.
[Ord. No. 17-567, 4-10-2017]
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 Village 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 Village, work
that does not conform to applicable national safety codes, industry
construction standards, or local safety codes, upon inspection and
notification by the Village of the faulty condition; or
6. Such other lawful reasons.
[Ord. No. 17-567, 4-10-2017]
A. Exclusion
Of Certain Locations/Facilities. Prior to its installation of any
Facilities in the Rights-of-Way, and after Applicant provides the
Village with its proposed plans, the Village may, in its discretion,
designate certain locations or Facilities in the Rights-of-Way to
be excluded from use by the ROW User, including, but not limited to,
ornamental or similar specially-designed street lights or other Facilities
or locations which, in the reasonable judgment of the Director, do
not have electrical service adequate or appropriate for the provider's
Facilities, or cannot safely bear the weight or wind loading thereof,
or any other Facility or location that in the reasonable judgment
of the Director is incompatible with the proposed Facilities, or would
be rendered unsafe or unstable by the installation. The Director may
further exclude certain other Facilities that have been designated
or planned for other use or are not otherwise available for use by
the ROW User due to engineering, technological, proprietary, legal,
or other limitations or restrictions as may be reasonably determined
by the Village. In the event such exclusions conflict with the reasonable
requirements of the ROW User, the Village will cooperate in good faith
with the ROW User to attempt to find suitable alternatives, if available,
provided that the Village shall not be required to incur financial
cost nor require the Village to acquire new locations for the ROW
User.
B. Location,
Type, And Design Of Facilities Subject To Approval.
1. Review Required. The design, location, and nature of all Facilities
shall be subject to the review and approval of the Director. Such
review shall be on a non-discriminatory basis in application of Village
policy and approvals shall not be unreasonably withheld. Except as
provided herein, all Facilities constructed after the date of this
Chapter shall be placed underground, and in conduit, where capable.
Village height limitations, applicable zoning restrictions, and general
Village policies with regard to all users of the Rights-of-Way shall
also be applicable to all Facilities. The Director may establish such
regulations or policies as may be deemed necessary or appropriate
to effect this provision.
2. Underground Facility Location. All underground mains and service
lines with ancillary appurtenances thereto shall, wherever practicable,
be placed between the curb or pavement edge and sidewalk line in the
section of the street known as the parkway. Where the pavement and
sidewalk occupy the entire street, the Underground Facilities shall
be located under the sidewalk, unless otherwise directed by the Village.
3. Above-Ground Facilities. All new Facilities may be located Above-ground
only if approved by the Governing Body for good cause. Unless extraordinary
circumstances exist, good cause shall not include authorization for
Above-Ground Facilities requiring new poles or major modification
to existing Above-ground structures. Above-ground pedestals, vaults,
cabinets, or other Facilities may be installed only if approved by
the Village where alternative Underground Facilities are not feasible
or where underground requirements are otherwise waived pursuant to
the provisions of this Subsection. Existing conduit shall be used
where feasible and available. Where reasonable and appropriate and
where adequate Rights-of-Way exists, the ROW User shall place Above-Ground
Facilities underground in conjunction with Village capital improvement
projects and/or at specific locations requested by the Village provided
that such placement is practical, efficient, and economically feasible.
4. Use Of Existing Facilities Required; Exceptions. All new Facilities
or structures shall collocate on existing poles or within existing
conduit, trenches, or other Facilities to minimize unnecessary use
of Rights-of-Way space, reduce potential existing or future interference
and obstructions, and to reduce the cost to the public or others therefrom,
and to maximize the public’s ability to use and license appropriate
private or public uses of the Rights-of-Way in the public interest
(except where preempted by law or where good cause is established
as determined by the Village applying these objectives). Where existing
poles or Facilities are available, or exist at or near the proposed
use, unless otherwise approved, the Applicant must either use such
Facilities or file a written request verified by the Applicant for
exception specifying the specific reasons why such Facilities are
not available or feasible to be used and addressing the objectives
hereof.
5. Wireless Antennas And Facilities. Pursuant to Village authority,
including by Section 67.1830, RSMo., and due to the limited space
in the Village’s Rights-of-Way, and to minimize obstructions
and interference with the use of the Rights-of-Way by the public,
and to ensure traffic safety, preserve property values, and enforce
the public policy to maintain neutrality as to ownership of wireless
locations, wireless Facilities or structures and equipment shall not
be permitted in the Rights-of-Way on new structures unless the Governing
Body determines on a non-discriminatory basis such proposed application
is in the public interest addressing all concerns stated herein and
provided such use and location has received prior, separate zoning
authorization to the extent permitted by law. In such circumstances
where any new wireless application is permitted in the Rights-of-Way,
such uses shall be subject to reasonable regulations, including any
applicable specifications, compensation, and other terms established
by the Village in such approval or agreements. Wireless antennas and
related Facilities on existing structures or underground may be permitted
in the same manner as other uses in the ROW but subject to approval,
denial or condition relating to location, design, height, appearance,
safety, and such other zoning, building specification or other regulations,
except as may be limited by law.
6. Limited Space. The Village shall have the power to prohibit or limit
the placement of new or additional equipment in the Rights-of-Way
if there is insufficient space to accommodate all of the requests
of potential ROW Users. In making such decisions, the Village shall
strive to the extent possible to accommodate all existing and potential
users of the Rights-of-Way, but shall be guided primarily by considerations
of the public interest, public health and safety, the public's priority
needs for the particular service, the condition of the Rights-of-Way,
the time of year with respect to essential utilities, the protection
of existing equipment in the Rights-of-Way, and future Village plans
for public improvements and development projects which are in the
public interest.
7. Limit Number Of ROW Users. To the extent not prohibited by law, the
Village may limit the number of users in the Rights-of-Way in a competitively
neutral manner, based upon, but not necessarily limited to, specific
local considerations such as:
a. The capacity of the Rights-of-Way to accommodate current or future
Facilities, public improvements, or public use;
b. The impact on the community of the volume of Facilities in the Rights-of-Way;
c. The disruption arising from the use of or numerous Excavations of
the Rights-of-Way; or
d. Any other consideration based upon the interests of the public safety
and welfare.
C. Mapping
Of Facilities. Upon completion of the ROW work involving installation
of new Facilities, the ROW User shall supply the Village copies of
as-built and detailed maps showing the exact location of Facilities
installed in the ROW.
[Ord. No. 17-567, 4-10-2017]
A. No
Interference. All ROW Users shall construct and maintain their Facilities
so as not to interfere with other users of the Rights-of-Way. Except
as may otherwise be provided or as determined by the Director, the
ROW User shall, prior to commencement of work, execute a Village-approved
resident-notification plan to notify residents affected by the proposed
work. All construction and Maintenance by the ROW User or its subcontractors
shall be performed in accordance with industry standards. The ROW
User shall, in the performance of any Excavation, Facilities Maintenance,
Relocation and/or removal of any of its Facilities, limit such work
to that necessary for efficient operation and 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 Village or other ROW User without
their consent and shall be solely responsible for such.
B. Priority
Of Uses. ROW User’s use shall be in all situations subordinate
and subject to public municipal use. In situations where multiple
users are within the same location, first the municipal use shall
have priority followed by Persons with a valid and current Rights-of-Way
Use Agreement with the Village, followed by all others.
C. Site
Triangle Maintained. ROW Users shall comply with the requirements
of site triangles and nothing shall be erected, placed, planted or
allowed to grow in such a manner as to materially impede vision within
the triangular area formed by the Rights-of-Way lines and a line connecting
them at points thirty (30) feet from their point of intersection or
at equivalent points on a private street.
[Ord. No. 17-567, 4-10-2017]
A. Maintenance
Of Facilities. Each Row User shall maintain its Facilities in good
and safe condition and in a manner that complies with all applicable
Federal, State, and local requirements.
B. Advertising,
Signs, Or Extraneous Markings. ROW Users shall not place or cause
to be placed any sort of signs, advertisements, or other extraneous
markings, whether relating to the ROW User or any other Person on
the Rights-of-Way, except such necessary minimal markings as approved
by the Village as are reasonably necessary to identify the Facilities
for service, repair, Maintenance or emergency purposes, or as may
be otherwise required to be affixed by applicable law or regulation.
C. Tree
And Landscape Protection. Unless otherwise approved in writing by
the Village, a ROW User shall neither remove, cut nor damage any trees
or other landscaping, or their roots, in and along the ROW and public
places of the Village. Tree trimming and landscape pruning may be
permitted to occur only after prior written notice to the Village
of the extent of trimming and pruning to be performed and the prior
written approval thereof by the Village. The type and extent of trimming
and pruning shall be in accordance with the requirements of the Village.
In the event the Person severely disturbs or damages any tree or other
landscaping in the Rights-of-Way to the detriment of its health and
safety, the Person shall be required to remove and replace such of
like size at the Person’s cost. The location, size, and species
of any replacement landscaping shall be as approved by the Director,
unless the Director approves an equivalent monetary payment in lieu
of replanting. In reviewing any Permit application, the Village may
require the Applicant to directionally bore around or otherwise avoid
disturbance to any tree or landscaping, existing Facility, or other
protected area in the Rights-of-Way.
D. 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.
E. Joint
Permit Applications. Applicants may apply jointly for Permits in the
Rights-of-Way at the same time and place. All joint Applicants must
jointly execute all required documents and shall be jointly and severally
liable for all duties and obligations hereunder. Persons who apply
jointly may share in the payment of the application deposit fee. Such
Persons must agree among themselves as to the portion each shall pay.
F. Notification,
Joint Installation, And Collocation. ROW Users shall, prior to any
Excavation or installation in the Rights-of-Way, provide sufficient
notification and joint installation opportunity on a shared-cost basis
to potential users of the Rights-of-Way as may be provided for by
separate Village policy. Such notification and adopted policies shall
be designed to maximize Collocation of ROW Users, to minimize the
disturbance to the Rights-of-Way, and maximize its usable capacity.
ROW Users shall identify by mapping, as required by the Director,
the location and specifications of all conduit available or dedicated
for Collocation. Any Person unreasonably failing to respond to Collocation
opportunities or otherwise comply with this provision or policies
adopted hereunder shall, unless good cause is found by the Village,
be precluded from use of the Rights-of-Way for a period of thirty
(30) months at such locations that would reasonably have been accommodated
by the Collocation opportunity that was declined.
[Ord. No. 17-567, 4-10-2017]
A. Required
By Village. The ROW User shall promptly remove, relocate, or adjust
any Facilities located in the Rights-of-Way as directed by the Village
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 Village
and at the ROW User's sole expense without any expense to the Village,
its employees, agents, or authorized contractors and shall be specifically
subject to rules, regulations, and schedules of the Village pertaining
to such. The ROW User shall proceed with relocations with due diligence
upon notice by the Village to begin relocation.
B. Required
By Third-Party. The ROW User shall upon request of any other Person
requesting relocation of Facilities and holding a validly issued building
or moving permit of the Village, and within a reasonable period of
time and not less than forty-eight (48) hours prior to the date upon
which said Person intends to exercise its rights under said permit,
thereupon temporarily raise, lower or relocate its wires or other
Facilities as may be required for the Person to exercise the rights
under the permit, and the ROW User may require such Person to make
payment in advance for any expenses incurred by said ROW User pursuant
to said Person's request.
C. ROW
User Responsible For Damage. Any damages suffered by the Village,
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 Village, the Village 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 Village shall
bear no responsibility to ROW User or others for damage resulting
from such removal; provided that ROW User has failed to relocate the
Facilities within the time frame required by the Village.
[Ord. No. 17-567, 4-10-2017]
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 Village,
with a rating by Best of not less than "A," that shall protect the
ROW User, the Village, and the Village'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 Village's sovereign immunity. An endorsement
shall be provided which states that the Village 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. If the Person is
self-insured, it shall provide the Village 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 Village. 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 Village 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. The Village reserves
the right to waive any and all requirements under this Section when
deemed to be in the public interest.
B. Performance
Bond; Exceptions. Except as otherwise may be required by law for ROW
Users who have on file with the Village Clerk an affidavit certifying
that the ROW User has twenty-five million dollars ($25,000,000.00)
in net assets and is otherwise therefore so exempted, the Person shall
at all times during the term of the Excavation Permit, and for four
(4) years thereafter, maintain a performance and maintenance bond
in a form approved by the Village Attorney. The amount of the bond
shall be five thousand dollars ($5,000.00) or the value of the Restoration
as determined by the Director, whichever is greater, conditioned upon
the Person's faithful performance of the provisions, terms, and conditions
conferred by this Chapter. Unless otherwise established in the Excavation
Permit, an annual bond in an amount of one hundred thousand dollars
($100,000.00) automatically renewed yearly during this period shall
satisfy the requirement of this Section. The Village shall be entitled
to recover under the terms of such bond the full amount of any loss
and damage occasioned from violation of the Excavation Permit or provisions
of this Chapter.
C. Copy
Required. A copy of the insurance policy(ies), endorsement, and documentation
demonstrating compliance with the insurance requirements herein and
the performance and maintenance bond requirements herein must be on
file with the Village Clerk.
[Ord. No. 17-567, 4-10-2017]
A. Compliance
With Laws. Each ROW User shall comply with all applicable Federal
and State laws and regulations and rules as well as all Village ordinances,
resolutions, rules, and regulations heretofore and hereafter adopted
or established.
B. ROW
Users Subject To Other Laws, Police Power.
1. Zoning, Safety, And Building Code Compliance. ROW Users shall at
all times be subject to the lawful exercise of the police powers of
the Village, 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. Installation
of all Facilities in the Rights-of-Way are subject to and must be
in compliance with all zoning and safety and building code requirements.
For applications for installation of any Facility in the Rights-of-Way:
(1) the most restrictive adjacent underlying zoning district classification
shall apply unless otherwise specifically zoned and designated on
the official zoning map, and (2) no application shall be submitted
for approval without attaching the Village’s consent to use
the Rights-of-Way for the specific construction application in accordance
with Chapter 67, RSMo.
2. No Waiver. No action or omission of the Village shall operate as
a future waiver of any rights of the Village under this Chapter. Except
where rights are expressly granted or waived by a Permit, they are
reserved, whether or not expressly enumerated.
C. No
Cause Of Action Against The Village. A ROW User shall have no damages
remedy or monetary recourse whatsoever against the Village 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 Village, 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 Village where
such relief is otherwise available and the requirements therefor are
otherwise satisfied.
D. Indemnification.
Every 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 for the Village acceptable to the Village) and hold harmless
the Village, 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 ROW User, its agents, representatives, employees, contractors,
subcontractors or any other Person for whose acts the ROW User may
be liable, in constructing, operating, maintaining, repairing, Restoring
or removing Facilities, or use of the Rights-of-Way or the activities
performed, or failed to be performed, by the 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 Village, its elected officials, officers, employees, agents or
contractors. Nothing herein shall be deemed to prevent the Village,
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 Village or its agents. This indemnification shall survive the
expiration or termination of any ROW Use Agreement, Franchise, License,
Permit, or other authorization for a period of five (5) years after
the effective date of expiration or termination.
E. ROW
User Responsible For Costs. The ROW User shall be responsible for
all reasonable costs borne by the Village that are directly associated
with ROW User's installation, Maintenance, repair, operation, use,
and replacement of its Facilities in the Rights-of-Way that are not
otherwise accounted for as part of the Permit fee established pursuant
to this Chapter, to the extent permitted by law. All such costs shall
be itemized and the Village's books and records related to these costs
shall be made available upon request of the ROW User.
F. Abandonment
And Unusable Facilities.
1. Abandoned Facility Requirements. ROW Users owning Facilities in the
Rights-of-Way shall not Abandon or otherwise cease to use of the Facilities
for longer than one (1) year unless, prior to doing so, the ROW Users
satisfies one (1) of the following:
a. Provides written notice of such intention, and removes its Facilities
in compliance with all requirements and replaces or restores any damage
or disturbance caused by the removal at its own expense; or
b. Provide information satisfactory to the Village that the ROW User’s
obligations for its Facilities in the Rights-of-Way will be lawfully
assumed by another authorized ROW User, including proof of a Franchise,
ROW Use Agreement or License; or
c. Submit to the Village a proposal and instruments for transferring
ownership of its Facilities to the Village. If the ROW User proceeds
under this Subsection, the Village may, at its option: (1) purchase
the equipment, (2) require the ROW User, at its own expense, to remove
it, or (3) require the ROW User to post a bond in an amount sufficient
to reimburse the Village for reasonable anticipated costs to be incurred
to remove the Facilities, except as otherwise provided herein.
2. Nuisance. Facilities Abandoned or otherwise left unused in violation
of this Chapter are deemed to be a nuisance. The Village may exercise
any remedies or rights it has at law or in equity, including, but
not limited to: (a) abating the nuisance, (b) taking possession and
ownership of the Facility and restoring it to a usable function, or
(c) requiring the removal of the Facility by the ROW User.
[Ord. No. 17-567, 4-10-2017]
A. Appeal.
1. Upon written application, any person aggrieved by a final decision
of the Director, the Governing Body or other official hereunder may
file a petition with the Village's Board of Adjustment (acting as
the Board of Administrative Appeals) requesting a hearing on the denial
of its application.
2. The Board of Administrative Appeals shall review the facts and information
presented by the petitioner and make a recommendation to the Board
of Trustees as to whether the decision constitutes an unconstitutional
taking without just compensation or is otherwise contrary to law.
The Board of Administrative Appeals shall review the facts in light
of the applicable City, State and Federal law. An affirmative vote
of four (4) of the five (5) members of the Board of Administrative
Appeals shall be required to support any recommendation. To the fullest
extent permitted by law, the review procedures herein shall be exhausted
before any action may be filed in any court against the City or its
officers, employees, boards, officials or commissions.
3. If the Board of Administrative Appeals fails to hear and make a recommendation on the petition within thirty (30) days after the filing of the petition, the action of the Board of Trustees shall be deemed returned to the Board of Trustees, as set forth in subsection
(A)(4), without recommendation; provided, that the Board of Administrative Appeals may extend the time to reach a decision, not exceeding an additional ninety (90) days following the receipt of the information required pursuant to this Chapter, if prior to the expiration of the thirty (30) day period, the Board notifies the petitioner, in writing, of such extension.
4. After completing the review, the Board of Administrative Appeals
shall make a determination regarding the petition and, if determined
to be necessary and appropriate, make a recommendation to Board of
Trustees. The evidence before the Board of Administrative Appeals
shall be submitted with the recommendation to the Board of Trustees
for final determination.
5. After the Board of Administrative Appeals renders its recommendation,
the Board of Trustees shall have thirty (30) days to take action on
the petition or recommendation of the Board of Administrative Appeals,
unless extended by the Board of Trustees for cause. The action taken
by the Board of Trustees at this time shall be deemed the final decision
for purposes of judicial review. No petition shall become final for
purposes of judicial review of the action subject to review until
the effective date of Board of Trustees action on the petition, or
upon expiration of the review period after the petition is submitted
to the Board of Trustees.
6. In the event that the applicant claims irreparable harm will occur
unless immediate review is granted, the applicant may request expedited
review, upon facts justifying such action alleged by affidavit, whereupon
the Board of Administrative Appeals, if it determines it is appropriate,
shall shorten the time for submissions and review.
7. To the fullest extent permitted by law, the review procedures as
set forth herein shall be exhausted before any action may be filed
in any court against the Village or its officers, employees, boards,
officials or commissions.
B. Violations;
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
Title I, Art. III of the Village Code per day for each and every day
the violation exists or continues.
[Ord. No. 17-567, 4-10-2017]
In addition to any rights specifically reserved to the Village
by this Chapter, the Village 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.