City of Twin Oaks, MO Article II Public Utility Excavation Or Other Work Within Public Right-Of-Way Excavations And Public Rights-Of-Way Management

Section 515.040 Applicability; Preemption.

[Ord. No. 18-06, 2-21-2018]

A. Applicability. Except as provided for herein and where limited by applicable law, this Chapter shall apply to all excavations and use, construction, operation, and maintenance of facilities or structures, in the ROW of the City. No person shall commence or continue with the operation of any facilities or structures in the ROW except as provided and in compliance with this Chapter. Because numerous types of users and uses of the ROW may be subject to various or changing regulatory schemes under Federal or State law, any such limitation or qualification that may be applicable to less than all users and uses of the ROW are not duplicated herein, but are nevertheless incorporated herein, whenever application is so required by law, including but not limited to applicable provisions of Chapter 67, RSMo., and other applicable State and Federal law.

B. Preemption. No provision of this Chapter shall apply to any circumstance in which such application shall be unlawful under superseding Federal or State law and, furthermore, if any Section, Subsection, sentence, clause, phrase, or portion of this Chapter is now or in the future superseded or preempted by State or Federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and applied as required by law.

Section 515.050 Rights-Of-Way Use Agreement, License, Or Franchise Required; Requirements.

[Ord. No. 18-06, 2-21-2018]

A. ROW Use Agreement, License, Or Franchise Required. Except where otherwise authorized or required by applicable law, no person may own, control, lease, use, or install facilities or other structures in the rights-of-way without a franchise, license, or ROW use agreement all subject to the requirements of this Chapter and issued by the City as provided herein and as follows:

1. Franchise. A franchise shall be obtained in conformance with all applicable franchise procedures for any ROW user seeking to use the rights-of-way for the purpose of providing, transporting or distributing electricity, gas, water, steam, lighting, energy, or sewer service to any person or area in the City's limits and boundaries.

2. ROW Use Agreement. A ROW use agreement shall be required for all other ROW users, except as provided herein or otherwise required by law. A ROW use agreement shall conform to all applicable laws and requirements, including as provided herein, but shall not be subject to procedures applicable to franchises.

3. 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 serve the principal structure, may be permitted without a franchise or rights-of-way use agreement pursuant to a permit issued by the Director and pursuant to the requirements of Sections 515.070 and 515.140. 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 permit hereunder shall be subject to the applicable requirements of this Chapter. Unless otherwise stated in the permit, the City is granting a license for the incidental use of the right-of-way for an indefinite term which license shall be revocable at any time on written notice in the public interest by the City. No property interest is conveyed by the City's granting of a permit.

B. Grant And Nature Of Approval; Terms And Compensation. The authority granted by the City in any ROW use agreement, license or franchise shall be for non-exclusive use of the rights-of-way. Such grant does not in any way limit the continuing authority of the City through the proper exercise of its statutory powers to adopt and enforce ordinances necessary to provide for the health, safety, and welfare of the public. The City specifically reserves the right to grant, at any time, such additional agreements or other rights to use the rights-of-way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable laws. The granting of any ROW use agreement, license or franchise by the City shall not be deemed to create any property interest of any kind in favor of the ROW user nor shall it create any relationship of agency, partnership, joint venture, or employment between the parties. Licenses may be approved by the Director on a non-discriminatory basis, provided that the person is in compliance with all applicable requirements. Each franchise, license, and ROW use agreement shall include terms of use and be deemed to incorporate the terms of this Chapter and other applicable laws of the City, except as may be expressly stated in such use agreement, license or franchise. The City may require compensation for use of the ROW or other public property as may be reasonably required by the Board of Aldermen, subject to applicable law.

C. Condition Precedent To Permit. Unless otherwise required by applicable law, no permit may be issued unless or until such person has a valid franchise, license or rights-of-way use agreement with the City that authorizes that person's use of the rights-of-way. Unless prohibited by applicable law, in addition to any other reason provided herein, the Director may deny a ROW permit to any person that does not have a valid franchise, ROW use agreement, or license with the City.

D. Transferability. Except as provided in this Chapter or as otherwise required by law, no franchise, ROW use agreement, or permit may be transferred or assigned without the written application to and consent of the City based on the requirements and policies of this Chapter. The City shall not unreasonably withhold its consent as provided herein, but any costs incurred shall be paid by the ROW user to the extent not prohibited by applicable law. In the case of the City granting consent to transfer, the transferee shall be subject to the terms and conditions of this Chapter.

E. Use Of City Or Third-Party Facilities. No ROW use agreement, franchise, or license shall grant the right to use facilities owned or controlled by the City or a third party, and no such use shall occur, nor shall any franchise, ROW use agreement or license excuse such person from first obtaining a pole attachment agreement or other express consent for such right or use before locating on the facilities controlled or owned by the City or a third party.

F. Lease Required For Public Lands. Unless otherwise provided, use or installation of any facilities in non-rights-of-way public property of the City shall be permitted only if a lease agreement or other separate written approval has been negotiated and approved by the City with such reasonable terms as the City may require.

G. No Warranties. The City makes no express or implied representation or warranty regarding its rights to authorize the installation or construction of facilities on any particular segment of rights-of-way and shall not be liable for any damages therefrom. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon the ROW user. The ROW user shall be solely liable for any damages to facilities or other property due to excavation, facilities maintenance, or other work performed prior to obtaining the location of all facilities that have been properly identified prior to such work around. The ROW user shall not make or attempt to make repairs, relocation or replacement of damaged or disturbed facilities without the approval of the owner of the facilities.

H. Forfeiture Of Agreement And Privilege. In case of failure on the part of the ROW user, including its successors and assigns, to comply with any of the provisions of this Chapter or a ROW use agreement, franchise, or license, or if the ROW user, its successors and assigns should do or cause to be done any act or thing prohibited by or in violation of this Chapter or the terms of the authorization of such use, or otherwise loses authority to provide its service in the City, the ROW user, its successors and assigns shall forfeit all rights and privileges permitted by any ROW use agreement, franchise, or license, and all rights hereunder shall cease, terminate and become null and void, provided that said forfeiture shall not take effect until the City shall carry out the following proceedings: Before the City declares the forfeiture or revocation of a rights-of-way use agreement, franchise, or license, it shall first serve a written notice upon the person setting forth in detail the neglect or failure complained of, and the person shall have thirty (30) days thereafter, or such other reasonable period established by the Director, in which to cure the default by complying with the conditions of such ROW use agreement, franchise, or license and fully remedying any default or violation. If, at the end of such period, the City determines that the conditions have not been complied with and that the person did not reasonably and in the public interest require more than the 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.

I. No Waiver. No action or omission of the City shall operate as a future waiver of any rights of the City under this Chapter. Except where rights are expressly granted or waived by a ROW permit, ROW use agreement, franchise, or license, they are reserved, whether or not expressly enumerated.

Section 515.060 Application For Franchise Or ROW Use Agreement Required.

[Ord. No. 18-06, 2-21-2018]

A. Application Form. An application for a franchise or ROW use agreement shall be provided to the City on City forms and shall include all such information as is required by this Chapter and as determined necessary by the Director. The ROW user shall be responsible for accurately maintaining the information in the application during the term of any franchise or ROW use agreement and shall be responsible for all costs incurred by the City due to the failure to provide or maintain as accurate any application information required herein.

B. Application Deposit Fee. An application deposit of five hundred dollars ($500.00), or such other amount determined to be required, shall be submitted with the application, which shall be utilized to at least partly offset the City's costs in reviewing and issuing an agreement, consistent with applicable law, provided that no costs shall be included if such inclusion is prohibited by applicable law as to that person; any amount not used by the City for its actual lawfully reimbursable costs will be refunded upon request after execution of a ROW use agreement or franchise. If applicable, the applicant shall be obligated to reimburse the City for its reasonable expenses associated with the review, negotiation, and adoption of an appropriate ROW use agreement or franchise that may exceed the application deposit.

C. Standard For Approval Or Renewal. In reviewing an application for a new or renewal ROW use agreement or franchise, the City may consider prior conduct of the person in performance of its obligations or compliance with the City's ordinances in the past, or the existence of any outstanding violations or deficiencies. The City may deny or condition any ROW use agreement or franchise where the proposed use would interfere with the public use of the rights-of-way or otherwise conflict with the legitimate public interests of the City to fulfill the requirements and objectives of this Chapter or as otherwise provided by law. All ROW use agreements or franchises 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, deposit fee, and executed franchise or rights-of-way use agreement as may be provided by the Director or as modified by the Director in review of the specific circumstances of the application, all in conformity with the requirements of this Chapter and all applicable laws, the Director shall submit such agreement to the Board of Aldermen for approval. Upon determining compliance with this Chapter, the Board of Aldermen may authorize execution of the franchise or ROW use agreement (or a modified agreement otherwise acceptable to the City consistent with the purposes of this Chapter), and such executed franchise or ROW use agreement shall constitute consent to use the rights-of-way; provided that nothing herein shall preclude the rejection or modification of any executed franchise or ROW use agreement submitted to the City to the extent applicable law does not prohibit such rejection or modification, including where necessary to reasonably and in a uniform or non-discriminatory manner reflect the distinct engineering, construction, operation, maintenance, public work, or safety requirements applicable to the person or use.

Section 515.070 Permit Required; Requirements.

[Ord. No. 18-06, 2-21-2018]

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 ROW excavation deposit fees set forth in Subsection (J) 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 8:00 A.M. to 8:00 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.

[Ord. No. 22-04, 3-2-2022]

B. Facilities Maintenance Permit; Exemptions. No person shall perform facilities maintenance at a specified location in the rights-of-way without first obtaining a facilities maintenance permit from the Director, except where such facilities maintenance is expressly authorized by an existing valid excavation permit for the applicable facilities maintenance location or is exempt herein. In addition to the applicable conditions and obligations set forth in this Chapter, conditions of a facilities maintenance permit shall be as established in such permit and shall include requirements of notice to and approval by the City whenever traffic lanes are to be obstructed, manhole covers or safety barriers removed or altered, temporary or other barricades installed, and other events set forth in the facilities maintenance permit. All facilities maintenance permits shall expire after sixty (60) days from the date of issuance, unless otherwise specified in such permit. A facilities maintenance permit shall not be required for:

1. ROW users performing routine maintenance which does not require excavation, does not disrupt traffic or pedestrians, and requires no more than four (4) hours to complete, provided that at minimum two (2) hours' notice is provided to the City during normal business hours;

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

3. Contractors working on the construction or reconstruction of public improvements and which are operating pursuant to a contract with the City for such construction; or

4. Routine maintenance on previously approved small wireless facilities as defined by Section 400.440, replacement of such 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 in the Uniform Small Wireless Facility Deployment Act,[1] 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 such new small wireless facilities or micro wireless facilities so the City may maintain an accurate inventory of facilities installed in the ROW.

[1] Editor's Note: See § 67.5110 et seq., RSMo.

C. Bulk Permits. The Director shall have the authority to establish procedures for bulk processing of applications and periodic payment of fees in lieu of the "single right-of-way excavation permit" deposit fees set forth in Subsection (J).

[Ord. No. 22-04, 3-2-2022]

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. Permit-Specific Conditions. The Director may also impose reasonable conditions upon the issuance of a permit and the performance of work in order to protect the public health, safety, and welfare, to ensure the structural integrity of the rights-of-way, to protect the property and safety of other users of the rights-of-way, and to minimize the disruption and inconvenience to the traveling public. Such reasonable conditions may include, but are not limited to:

1. The amount of excavation or facilities maintenance which may occur at one (1) time and the amount of rights-of-way which may be obstructed during construction;

2. Posting of an additional or larger performance and maintenance bond for additional facilities, except as otherwise provided in Section 515.110(H) hereof, when the established amount is reasonably determined to be insufficient;

3. 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;

4. Installation and co-location of a small wireless facility as defined by Section 400.440 shall be completed within one (1) year of issuance of the permit, or the permit shall become null and void and shall no longer authorize installation or co-location of the small wireless facility; and

5. Other reasonable conditions regarding the timing, safety precautions, space, or specific implementation of the specific work proposed.

F. Codes Incorporated. Every permit issued hereunder shall incorporate the requirements and terms of this Chapter, agreements, and all applicable ordinances, to the extent permitted by law. The ROW user shall perform such work in accordance with the issued permit and applicable provisions of this Chapter and any subsequent ordinances or regulations that may be adopted by the City regarding excavation or facilities maintenance work. In addition, all ROW users shall be subject to all technical specifications, design criteria, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power relating to permits and fees, sidewalk and pavement cuts, facility location, construction coordination, surface restoration, and other requirements on the use of the rights-of-way. A ROW user shall perform all excavations or facilities maintenance in full compliance with all applicable engineering codes adopted or approved by the City, and in accordance with applicable Statutes of the State of Missouri, and the rules and regulations of the Public Service Commission, Federal Communications Commission, and any other local, State or Federal agency having jurisdiction over the parties. The ROW user shall comply with the excavation requirements of Missouri One Call established by § 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. Tree And Landscape Protection. Upon ten (10) days' written notice and with the supervision of the City or as otherwise provided by law or agreement, the City may permit a ROW user to trim trees that overhang rights-of-way of the City so as to prevent the branches of such trees from coming in contact with facilities in the ROW, at its own expense, subject to the supervision and direction of the City. Nothing in this Subsection shall authorize the trimming of trees on private property without permission of the property owner. All cut materials shall be properly disposed. Unless otherwise approved in writing by the City, a ROW user shall not remove, cut or damage any trees or their roots in the rights-of-way. In reviewing any permit application, the City may require the applicant to directionally bore around or otherwise avoid disturbance to any tree or landscaping, existing facility, or other protected area in the rights-of-way.

H. Permit Displayed. At all times during the work, permits shall be conspicuously displayed at the work site and shall be available for inspection by the Director.

I. Modification Requiring New Permit. If at any time it appears that the duration or scope of the work is or will become materially different from that allowed by the permit, the ROW user shall inform the Director. The Director may issue a waiver, an extension or revised permit, or require that the ROW user reapply for a permit in accordance with all requirements of this Chapter.

J. Right-Of-Way Excavation Permit Deposit Fee.

[Ord. No. 22-04, 3-2-2022]

1. The filing fee/deposit for a ROW excavation permit shall be as follows:

Type of Permit	Deposit Fee
Single right-of-way excavation permit	$150.00
Annual bulk permits	$1,500.00

2. The deposit fee set forth in this Subsection (J) shall be paid in anticipation of the City's expenses incurred in processing the application or submission at issue, including, but not limited to, administrative and clerical costs, surveys, legal, engineering and planning review, expenses of notification to adjoining property owners, and other investigations deemed necessary by the City. Processing and all other actions related to the application or submittal shall not proceed until the applicable fee is paid in full.

3. In the event the deposit fee paid is insufficient to pay all such expenses incurred by the City, the City Clerk may document additional costs incurred by the City and request payment of same within thirty (30) days. Further processing and other actions related to the application shall not proceed until such additional sums are paid in full. All unused portions of any deposit fee or additional sums required under this Section shall be refunded to the applicant upon written request within thirty (30) days of close out of the permit or the last day of work under the permit whichever is sooner. Appeals from any decision hereunder shall be taken pursuant to Chapter 150 of the Twin Oaks Municipal Code.

Section 515.080 Permit Denial And Revocation.

[Ord. No. 18-06, 2-21-2018]

A. The Director may deny an application for a permit if:

1. To the extent permitted by law, the person does not have a current franchise, license, or rights-of-way use agreement, or other authorization with the City.

2. The ROW user, or any persons acting on the behalf of the ROW user, fails to provide all the necessary information requested by the City for managing the rights-of-way.

3. The ROW user, or any persons acting on the behalf of the ROW user, including contractors or subcontractors, has a history of non-compliance or permitting non-compliance within the City. For purposes of this Section, "history of non-compliance or permitting non-compliance within the City" shall include where the ROW user, or any persons acting on the behalf of the ROW user, including contractors or subcontractors, has failed to return the rights-of-way to their previous condition under a previous permit, or has violated terms, or is in violation of terms of the ROW users' franchise, rights-of-way use agreement, license, or other authorization with the City.

4. The City has provided the ROW user with a reasonable, competitively neutral, and non-discriminatory justification for requiring an alternative method for performing the excavation or facilities maintenance identified in the permit application, or a reasonable alternative route that will not result in additional installation expense of more than ten percent (10%) to the ROW user or a declination of service quality.

5. Any other violations or non-compliance caused by or through the ROW user of any applicable City, State, or Federal law or regulation, except where such violation is prohibited by applicable law for being a basis for denial.

6. The City determines that the denial is necessary to protect the public health and safety, provided that the authority of the City does not extend to those items under the jurisdiction of the PSC, such denial shall not interfere with a ROW user's right of eminent domain of private property, and such denials shall only be imposed on a competitively neutral and non-discriminatory basis. In determining whether denial of a permit application is necessary to protect the public health and safety, the Director may consider one (1) or more of the following factors:

a. The extent to which the rights-of-way space where the permit is sought is available, including the consideration of competing demands for the particular space in the rights-of-way, or other general conditions of the rights-of-way;

b. The applicability of any ordinance, code provision, or other regulations that affect the location of facilities in the rights-of-way;

c. The degree and nature of disruption to surrounding communities and businesses that will result from the use of that part of the rights-of-way, including whether the issuance of a permit for the particular dates and/or times requested would cause a conflict or interfere with an exhibition, celebration, festival, or any other event;

d. The area is environmentally sensitive as defined by State Statute or Federal law or is an historic district designated by City ordinance; and

e. The failure to comply with applicable City ordinances, or any other violation, unsafe conditions, or damage or threatened harm to the rights-of-way or public, except where such circumstance would otherwise not constitute a lawful basis for denial of a permit.

B. The Director may, after reasonable notice and an opportunity to cure, revoke a permit without fee refund, but only in the event of a substantial breach of the terms and material conditions of the permit. A substantial breach by a ROW user includes but is not limited to:

1. A material violation of a provision of the permit;

2. An evasion or attempt to evade any material provision of the permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens;

3. A material misrepresentation of fact in the permit application;

4. A failure to complete work by the date specified in the permit, unless a permit extension is obtained, or unless the failure to complete the work is due to reasons beyond the ROW user's control;

5. A failure to correct, within the time specified by the City, work that does not conform to applicable national safety codes, industry construction standards, or local safety codes, upon inspection and notification by the City of the faulty condition; or

6. Such other lawful reasons.

Section 515.090 Location, Design, And Mapping Of Facilities.

[Ord. No. 18-06, 2-21-2018]

A. Exclusion Of Certain Locations/Facilities. To the extent permitted by applicable law, the Director may designate certain locations or facilities in the rights-of-way to be excluded from use by the ROW user, including, but not limited to, ornamental or similar specially designed streetlights or other facilities or locations which, in the reasonable judgment of the Director, do not have electrical service adequate or appropriate for the provider's facilities, or cannot safely bear the weight or wind loading thereof, or any other facility or location that in the reasonable judgment of the Director is incompatible with the proposed facilities, or would be rendered unsafe or unstable by the installation. The Director may further exclude certain other facilities that have been designated or planned for other use or are not otherwise available for use by the ROW user due to engineering, technological, proprietary, legal, or other limitations or restrictions as may be reasonably determined by the City. In the event such exclusions conflict with the reasonable requirements of the ROW user, the City will cooperate in good faith with the ROW user to attempt to find suitable alternatives, if available, provided that the City shall not be required to incur financial cost nor require the City to acquire new locations for the ROW user.

B. Location, Type, And Design Of Facilities Subject To Approval.

1. Review Required. The design, location, and nature of all facilities shall be subject to the review and approval of the Director. Such review shall be on a non-discriminatory basis in application of City policy, and approvals shall not be unreasonably withheld. City height limitations, applicable zoning restrictions, and general City policies with regard to all users of the rights-of-way shall be applicable to all facilities. The Director may establish regulations or policies as may be deemed necessary or appropriate to effect this provision.

2. Underground And Co-Location 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 the applicant and found by the City. In addition, all new fiber optics, coaxial, and similar cable facilities shall be located within existing conduit, trenches, or other facilities to minimize unnecessary use of rights-of-way space, reduce potential existing or future interference and obstructions, and to reduce the cost to the public or others therefrom, and to maximize the public's ability to use and license appropriate private or public uses of the rights-of-way in the public interest except where preempted by law or where good cause is established and written permission granted by the City. Such permission may be granted by the 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 aboveground construction has minimal aesthetic impact on the area where the construction is proposed. Where reasonable and appropriate and where adequate rights-of-way exist, the ROW user shall place aboveground 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 two hundred (200) 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 by the Director of Public Works and Parks upon good cause shown by the applicant, including: when and where nearby utility poles exist that are spaced closer than two hundred (200) feet apart; when conditions are such that no existing structure as defined by Section 400.440 is available for placement of facilities; and the utility pole can be placed to be minimally visually intrusive.

3. Wireless Antennas And Facilities. Pursuant to City authority, including by Section 67.1830(f), RSMo., and the Uniform Small Wireless Facility Deployment Act (§ 67.5110 et seq., RSMo.), and due to the limited space in the City's rights-of-way and in order to minimize obstructions and interference with the use of the rights-of-way and to ensure traffic safety, while also seeking to facilitate delivery of broadband technologies to City residents and businesses, wireless facilities and equipment shall be permitted in the rights-of-way in compliance with the requirements applicable to other facilities and users in the rights-of-way, and the additional requirements set forth in this Subsection for wireless antennas and facilities.

a. General Conditions. Any wireless facility in the ROW shall be subject to conditions relating to the location (including prohibited or limited locations), design, height, appearance, safety, radio frequency, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the Director to address changing infrastructure, technology, and uses of the rights-of-way and/or City facilities. A wireless facility shall not be located or installed in a manner that results in interference with or impairs the operation of existing utility facilities or City or third-party attachments. Wireless antennas or facilities shall further comply with:

(1) All applicable requirements for installation of any facilities in the ROW as set forth in this Chapter, including a 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 (§ 67.5090 et seq., RSMo.), Uniform Small Wireless Facility Deployment Act (§ 67.5110 et seq., RSMo.), applicable zoning, building, and other regulations and approvals, specifically including Section 400.440.

b. Specific Conditions.

(1) Small Wireless Facilities. Any small wireless facility meeting the requirements for a small wireless facility as defined by and provided in Section 400.440 of the Zoning Code shall be authorized to be located in the rights-of-way with approval of the Director subject to the following additional requirements:

(a) If proposing to install a new utility pole, compliance with the spacing requirements herein;

(b) Compliance with § 67.5113.3(9), RSMo., to the satisfaction of the City;

(c) For co-locations on City utility poles, all make-ready estimates for the utility pole, including replacement costs where necessary for the safety and reliability of the utility pole, as determined by the City;

(d) Attestation that the proposed small wireless facility meets the volumetric requirements to meet the definition of a small wireless facility in Section 400.440 of the Zoning Code; and

(e) Any other requirements which may be applicable to the proposed small wireless facility pursuant to the Uniform Small Wireless Facility Deployment Act (§ 67.5110 et seq., RSMo.).

(2) Fast-Track Small Wireless Co-Location. Any wireless facility meeting the requirements of a fast-track as defined by Section 400.440 may be authorized to use and be located in the rights-of-way with approval of the Director subject to the following additional requirements:

(a) Attestation that the proposed facilities meet the volumetric requirements to meet the definition of fast track in Section 400.440 of the Zoning Code;

(b) Only one fast-track facility shall be permitted per structure in the rights-of-way;

(c) No ground equipment shall be authorized;

(d) Compliance with the spacing requirements herein if granted a waiver under the fast-track zoning procedure in Section 400.440 to install a new structure; and

(e) If the proposed structure the applicant proposes to locate its small wireless facility or fast-track on is not structurally sound, but the Director finds such to be a desired location, the Director can require the applicant to install a new substantially similar structure at the applicant's cost.

(3) All Other Wireless In Rights-Of-Way. Any wireless facility located on an existing structure or utility pole, but not meeting the requirements of small wireless facilities or fast-track small wireless co-location, above, 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:

(a) In the public interest to provide a needed service to persons within the City;

(b) Cannot feasibly meet all of the requirements of a small wireless facility, fast-track, or otherwise but varies from such requirements to the minimum extent necessary;

(c) Does not negatively impact appearance or property values in light of the location, design, and circumstances to be approved;

(d) Does not create any reasonable safety risk; and

(e) Complies with all zoning, rights-of-way, and other applicable requirements.

(4) Wireless Facility Compensation Requirements. If the small wireless facility or fast-track is to be located on a City-owned structure or utility pole, an annual payment of one hundred fifty dollars ($150.00) per attachment shall be required.

(5) Application Requirements. Any application including one (1) or more wireless antennas or facilities shall include all requirements:

(a) For installation of any facilities in the rights-of-way as set forth in this Chapter;

(b) Of this Section; and

(c) For installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (§ 67.5090 et. seq., RSMo.), City's Zoning Code,[1] and other applicable law, including written proof of consent of the landowner and of the structure owner.

[1] Editor's Note: See Ch. 400, Zoning Regulations.

C. Limited Space. The City shall have the power to prohibit or limit the placement of new or additional equipment in the rights-of-way if there is insufficient space to accommodate all of the requests of potential ROW users to the extent not preempted by applicable law. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the rights-of-way, but shall be guided primarily by considerations of the public interest, public health and safety, the public's priority needs for the particular service, the condition of the rights-of-way, the time of year with respect to essential utilities, the protection of existing equipment in the rights-of-way, and future City plans for public improvements and development projects which are in the public interest.

D. Mapping Of Facilities. Upon completion of the ROW work involving installation of new facilities, the ROW user shall supply the City copies of as-built and detailed maps showing the exact location of facilities installed in the ROW. As a condition of continued ROW use, all ROW users shall, on an annual basis, provide the City with as-builts or other detailed maps of the ROW user's current facilities. Such annual requirement may be waived by the Director upon written request.

E. No Interference. All ROW users shall construct and maintain their facilities so as not to interfere with other users of the rights-of-way. The ROW user shall not interfere with or alter the facilities of the City or other ROW user without their consent and shall be solely responsible for such. Except as may otherwise be provided or as determined by the Director, the ROW user shall, prior to commencement of work, execute a City-approved resident-notification plan to notify residents affected by the proposed work. All construction and maintenance by the ROW user or its subcontractors shall be performed in accordance with industry standards. The ROW user shall, in the performance of any excavation, facilities maintenance, or other ROW work, limit such work to that necessary for efficient operation and so as not to interfere with other users of the rights-of-way. All facilities and other structures shall be installed and located to cause minimum interference with the rights and convenience of property owners, ROW users, and the City. facilities, and other structures shall not be placed where they will disrupt or interfere with other facilities, structures, or public improvements or obstruct or hinder in any manner the various utilities serving the residents and businesses in the City or public improvements. Aboveground 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.

F. Subordinate Uses. The ROW user's use shall be in all situations subordinate and subject to public municipal use. In situations where multiple users are within the same location, first the municipal use shall have priority followed by persons with a valid and current rights-of-way use agreement, franchise, or other authorization with the City, followed by all others to the extent not preempted by applicable law.

G. Sight Triangle Maintained. ROW users shall comply with the requirements of sight 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.

Section 515.100 Relocation Of Facilities.

[Ord. No. 18-06, 2-21-2018]

A. City-Required Relocation. The ROW user shall promptly remove, relocate, or adjust any facilities located in the rights-of-way as directed by the City when such is required by public necessity, or public convenience and security require it, or such other findings in the public interest that may require relocation, adjustment, or removal at the cost of the ROW user. Such removal, relocation, or adjustment shall be performed by the ROW user within the time frames established by the City and at the ROW user's sole expense without any expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to rules, regulations, and schedules of the City pertaining to such.

B. Emergency Exception. In the event of an emergency or where construction equipment or facilities create or are contributing to an imminent danger to health, safety, or property, the City may, to the extent allowed by law, remove, re-lay, or relocate such construction equipment or the pertinent parts of such facilities without charge to the City for such action or for restoration or repair. The City shall attempt to notify the person having facilities in the rights-of-way prior to taking such action, but the inability to do so shall not prevent same. Thereafter, the City shall notify the person having facilities in the rights-of-way as soon as practicable.

C. Third-Party Relocation. A person having facilities in the rights-of-way shall, on the reasonable request of any person, other than the City, holding a validly issued permit, after reasonable advance written notice, protect, support, or temporarily disconnect or relocate facilities to accommodate such person, and the actual cost, reasonably incurred, of such actions shall be paid by the person requesting such action. The person having facilities in the rights-of-way taking such action may require such payment in advance.

D. Abandonment Exception. Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (G) of this Section.

E. ROW User Responsible For Damage. Any damages suffered by the City, its agents or its contractors to the extent caused by the ROW user's failure to timely relocate, remove or adjust its facilities, or failure to properly relocate, remove, or adjust such facilities, shall be borne by the ROW user. Where the ROW user shall fail to relocate facilities as required by the City, the City may, but shall not be required to, upon notice to the ROW user remove the obstructing facilities with or without further delay, and the ROW user shall bear all responsibility and liability for the consequences therefrom, and the City shall bear no responsibility to the ROW user or others for damage resulting from such removal.

F. No Vested Rights. No action hereunder shall be deemed a taking of property, and no person shall be entitled to any compensation therefor. No location of any facilities in the rights-of-way shall be a vested interest or property right.

G. Abandoned Facilities; Removal. A person owning abandoned facilities in the rights-of-way must not later than thirty (30) days of notice or of abandonment remove its facilities and replace or restore any damage or disturbance caused by the removal at its own expense. The Director may upon written application and written approval allow underground facilities or portions thereof to remain in place if the Director determines that it is in the best interest of public health, safety, and general welfare to do so. The City shall be entitled to all costs of removal and enforcement for any violation of this provision.

H. Nuisance. facilities abandoned or otherwise left unused in violation of this Chapter are deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to:

1. Abating the nuisance;

2. Taking possession and ownership of the facility and restoring it to a usable function; or

3. Requiring the removal of the facility by the ROW user.

Section 515.110 ROW User Responsibilities And Requirements.

[Ord. No. 18-06, 2-21-2018]

A. Compliance With Laws. Each ROW user shall comply with all applicable Federal and State laws and regulations and rules as well as all City ordinances, resolutions, rules, and regulations heretofore and hereafter adopted or established.

B. Zoning, Safety, And Building Code Compliance. ROW users shall at all times be subject to the lawful exercise of the police powers of the City, including but not limited to all police powers regarding zoning, supervision of the restoration of the rights-of-way, building and safety regulations, and control of the rights-of-way currently in effect or as may be amended. Installation of all facilities in the rights-of-way are subject to and must be in compliance with all zoning and safety and building code requirements. For applications for installation of any facility in the rights-of-way:

1. The most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the Official Zoning District Map; and

2. No application shall be submitted for approval without attaching the City's consent to use the rights-of-way for the specific construction application in accordance with Chapter 67, RSMo., and compliance with this Chapter.

C. No Cause Of Action Against The City. As a condition for use of the rights-of-way, a ROW user shall have no damages, remedy, or monetary recourse whatsoever against the City for any loss, cost, expense, or damage arising from any of the provisions or requirements of any ROW use agreement, franchise, or license, or because of the enforcement thereof by said City, or from the use of the rights-of-way. Nothing herein shall preclude the ROW user from seeking injunctive or declaratory judgment relief against the City where such relief is otherwise available and the requirements therefor are otherwise satisfied.

D. Maintenance Of Facilities. Each ROW user shall maintain its facilities in good and safe condition and in a manner that complies with all applicable Federal, State, and local requirements.

E. Advertising, Signs, Or Extraneous Markings. ROW users shall not place or cause to be placed any sort of signs, advertisements, or other extraneous markings, whether relating to the ROW user or any other person, on the rights-of-way, except such necessary minimal markings as approved by the City as are reasonably necessary to identify the facilities for service, repair, maintenance or emergency purposes, or as may be otherwise required to be affixed by applicable law or regulation.

F. Responsible For Subcontractors. If excavation or facilities maintenance is being done for the ROW user by another person, a subcontractor or otherwise, the ROW user shall be responsible for ensuring that the excavation or facilities maintenance of said person is performed consistent with its permit and applicable law (including that the contractor shall be properly licensed under the State of Missouri and local ordinances) and shall be responsible for promptly correcting acts or omissions by said person.

G. Insurance; Exceptions. Except as provided in this Section, each ROW user shall provide, at its sole expense, and maintain during the term of any ROW use agreement or franchise or anytime the ROW user has facilities in the ROW, commercial general liability insurance with a reputable, qualified, and financially sound company licensed to do business in the State of Missouri, and unless otherwise approved by the City, with a rating by Best of not less than "A," that shall protect the ROW user, the City, and the City's officials, officers, and employees from claims which may arise from such use of the ROW, whether such operations are by the ROW user, its officers, directors, employees, and agents, or any contractors or subcontractors of the ROW user. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all ROW user operations, products, services, or use of automobiles or construction equipment. The amount of insurance for single-limit coverage applying to bodily and personal injury and property damage shall be in no event less than the individual and combined sovereign immunity limits established by Section 537.610, RSMo., for political subdivisions; provided that nothing herein shall be deemed to waive the City's sovereign immunity. An endorsement which states that the City 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 canceled or materially modified so as to be out of compliance with the requirements of this Section, or not renewed without thirty (30) days' advance written notice of such event being given to the Director, along with copies of the policy and other documentation, shall be provided. If the person is self-insured, it shall provide the City proof of compliance regarding its ability to self-insure and proof of its ability to provide coverage in the above amounts. The City's additional insured coverage shall have no deductible. The insurance requirements in this Section or otherwise shall not apply to a ROW user to the extent and for such period as the ROW user is exempted from such requirements pursuant to Section 67.1830(6)(a), RSMo., and has on file with the City Clerk an affidavit certifying that the ROW user has twenty-five million dollars ($25,000,000.00) in net assets and is otherwise therefore so exempted unless otherwise provided by a ROW use agreement or franchise or the City determines such exemption has not been adequately shown. Additionally, in accordance with Section 67.5121(3), RSMo., a self-insured ROW user shall not be required to obtain insurance naming the City as an additional insured solely to the extent such ROW user is utilizing "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act[1] within the ROW. This exception to the City's insurance requirements shall only apply as related to small wireless facilities and shall not otherwise alter the obligations of a ROW user to provide appropriate insurance to the City for any other activities or operations. The City may waive any and all requirements under this Subsection when deemed to be lawful and in the public interest.

[1] Editor's Note: See § 67.5110 et seq., RSMo.

H. Performance And Maintenance Bonds.

1. Bond Required. Prior to any work, a ROW user shall establish in the City's favor a performance and maintenance bond in an amount to be determined by the Director to guarantee the restoration of the rights-of-way as more fully provided in Section 515.130(B). The bond shall continue in full force and effect for a period of forty-eight (48) months following completion of the work. The Director may waive this requirement when the work involves, as determined in the sole discretion of the Director, no or only minor disruption or damage to the rights-of-way. The bond requirements in this Section or otherwise shall not apply to a ROW user to the extent and for such period as the ROW user is exempted from such requirements pursuant to § 67.1830(6)(a), RSMo., and has on file with the City 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, unless otherwise provided by a ROW use agreement or franchise or the City determines such exemption has not been adequately shown. The City may waive any and all requirements under this Subsection when deemed to be lawful and in the public interest.

2. Failure To Satisfactorily Complete Restoration. If a ROW user fails to complete the work in a safe, timely, and competent manner or if the completed restorative work fails without remediation within the time period for the bond (as determined by the Director), then after notice and a reasonable opportunity to cure, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the ROW user and the cost of completing work in or restoring the rights-of-way, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against a security fund or letter of credit where such amount exceeds that available under a security fund or letter of credit.

3. Bond Terms. The bond shall be issued by a surety with an "A" or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition, shall be subject to the approval of the City's Attorney and shall contain the following endorsement: "This bond may not be canceled 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 § 67.5121(4), RSMo., the bonds required for "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act shall not exceed one thousand five hundred dollars ($1,500.00) per small wireless facility or more 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.

I. Indemnification. Any person performing excavation or a ROW user as a condition of use of the rights-of-way shall at its sole cost and expense fully indemnify, protect, defend (with counsel acceptable to the City), and hold harmless the City, its municipal officials, officers, employees, and agents, from and against any and all claims, demands, suits, proceedings, and actions, liability, and judgment by other persons for damages, losses, costs, and expenses, including attorney fees, arising, directly or indirectly, in whole or in part, from the action or inaction of the person performing excavation or the ROW user, its agents, representatives, employees, contractors, subcontractors, or any other person for whose acts the person performing excavation, or the 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 its own counsel at its 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, franchise, license, or permit; provided, however, that in accordance with § 67.5121(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[2] 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.

[2] Editor's Note: See § 67.5110 et seq., RSMo.

J. ROW User Responsible For Costs. The ROW user shall be responsible for all reasonable costs borne by the City that are directly associated with the ROW user's installation, maintenance, repair, operation, use, and replacement of its facilities in the rights-of-way that are not otherwise accounted for as part of the permit fee established pursuant to this Chapter, to the extent permitted by law. All such costs shall be itemized, and the City's books and records related to these costs shall be made available upon request of the ROW user.

Section 515.120 Excavation Details; Manner Of Work Generally.

[Ord. No. 18-06, 2-21-2018]

A. Open Excavations; Street-Plate Bridging. The ROW user shall not permit an excavation to remain open or facilities maintenance actions to continue in the rights-of-way longer than is necessary to complete the repair, installation or action, and, in no event may an excavation or facilities maintenance remain open or continue beyond the expiration of the excavation permit or any approved extension. Unless otherwise approved by the Director in writing, all excavations shall be filled in or covered at the end of each working day. Street plate bridging (SPB) to cover open excavations shall be authorized subject to requirements contained in the standard specifications.

B. Interference Control. The ROW user excavating in the rights-of-way shall cause the excavation to be done with the least possible injury to the pavement, sidewalk, curbing, parkway, or other surface and shall place the materials from the excavation where they will cause the least possible inconvenience to the public and permit the uninterrupted passage of water along the gutters. The width of the excavation shall be no greater than is necessary for doing the work.

C. Erosion Control. Before new excavation or construction is commenced and until sodding, planting, concreting, paving, or other final surfacing is in place, which will avoid washing or spreading of dirt and mud onto other property, sidewalks, curbs, gutters, streets, and the rights-of-way, the ROW user shall erect and maintain approved temporary erosion control measures to prevent such washing or spreading of materials. At the end of each day and as required throughout the day during the course of excavating or construction, dirt and mud on the sidewalks, curbs, gutters, streets, and the rights-of-way resulting from work must be removed.

D. Cleaning Up; Removing Mud From Vehicles. The person doing the excavating or other ROW work under the requirements of this Chapter shall immediately, after the work is completed and the refill is made, clean up and haul away all surplus earth, rock, debris, or other rubbish. The ROW user shall remove dirt from the wheels of all vehicles leaving any site where mud has accumulated on the wheels before such vehicles enter any public street of the City. It shall be unlawful for any ROW user to permit any vehicles to leave such place with mud on the wheels which is liable to be dispersed over any public street of the City, and it shall be unlawful for any driver of a vehicle to enter upon the public streets of the City without having removed or had mud removed from the wheels prior to such entry. Each occurrence shall be a separate offense. The ROW user shall be responsible for damages to the City, or its contractors, resulting from such failure and shall indemnify the City and its contractors as provided herein and pay the costs for remedying such failure.

E. Spilling Materials Onto Rights-Of-Ways. The ROW user shall load materials on any vehicle so no portion thereof shall be spilled or be liable to be spilled on the streets of the City. It shall be unlawful for any ROW user to permit any vehicle to enter upon the streets of the City loaded in violation of this provision and it shall be unlawful for any person to operate a vehicle on the streets of the City which is loaded in such manner that it spills or is liable to spill mud, dirt, or other materials on the streets.

F. Hours Of Activity. 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.

G. Methods Of Pavement Removal, Excavation, And Backfill. The person making an excavation shall abide by the following conditions:

1. The initial cut in a street pavement shall be equal to the width of the trench with the option of being jack hammered or saw cut. The final cut in an asphaltic concrete street pavement shall be one (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 center line) 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 City and the ASTM International (American Society for Testing and Materials). If inspections were not requested or a valid excavation permit obtained, the City may require compaction testing by a registered professional engineer licensed in the State of Missouri at the ROW user's expense.

Section 515.130 Standards For All Work Within The ROW.

[Ord. No. 18-06, 2-21-2018]

A. Property Repair And Alterations.

1. No Damage. During any work, the person doing the work shall protect from damage any and all existing structures and property belonging to the City and any other person. Any and all rights-of-way, public property, or private property disturbed or damaged during the work shall be repaired or replaced by the person doing the work or the person on whose behalf the work is being done, and such person shall immediately notify the owner of the fact of any damaged property. Such repair or replacement shall be completed within a reasonable time specified by the Director and to his/her satisfaction.

2. Alterations. Any alteration to the existing water mains, sewerage or drainage system, or to any City, State, or other public structures or facilities in the rights-of-way required on account of the construction, installation, repair, or maintenance of facilities in the rights-of-way shall be made at the sole cost and expense of the owner of such facilities.

B. Specifications And Conditions For Work.

1. Barricades And Safety Devices. The ROW user assumes the sole responsibility for maintaining proper barricades, plates, safety fencing, and/or lights as required from the time of opening of the ROW until the excavation is surfaced and opened for travel. All excavations and facilities maintenance that disturb traffic or pedestrian travel shall be barricaded in such a manner as to protect both pedestrians and vehicular traffic. Such excavations, facilities maintenance, and barricades shall be lighted at night with danger signals in such a manner that all traffic may be warned of the existence and location of such excavations, facilities maintenance, and barricades.

2. Traffic Control. Whenever there is an excavation or facilities maintenance by the ROW user, the ROW user shall be responsible for providing adequate traffic control to the surrounding area as determined by the Director. All traffic control devices shall be in compliance with the current version of the standard specifications and the Manual of Traffic Control Devices (MUTCD), unless otherwise agreed to by the City. All surplus excavation materials, tools, or supplies at the site of the excavation or facilities maintenance shall be barricaded and lighted at night in the manner described in this Section. In the event the excavation or facilities maintenance is not completed in a reasonable period of time, the ROW user may be liable for actual damages to the City for delay caused by the ROW user pursuant to this Chapter.

3. Specifications And Restoration. All work and maintenance shall comply with all such specifications as may be established by the Director. The ROW user shall restore the rights-of-way and surrounding areas and shall comply with other reasonable conditions of the Director. Restoration of the rights-of-way shall be completed within the dates specified in the ROW permit unless the Director issues a waiver, extension, or a new or revised ROW permit.

4. Failure To Restore. If a ROW user fails to restore the rights-of-way to their reasonable before condition (including placement of sod to restore any grassy areas unless such requirement is waived by the Director in his/her sole discretion based on area disturbed and weather conditions) within the date specified either by the ROW permit or any extension thereof as granted by the Director, the City may perform its own restoration. If the City performs the restoration, the ROW user shall be responsible for reimbursing the City's reasonable actual restoration costs within thirty (30) days of invoice. The City may use the required performance bond to repair the same, if necessary. The ROW user shall not be relieved of the obligation to complete the necessary rights-of-way restoration and maintenance because of the existence of any performance bond required by this Chapter.

5. Inspection. When an excavation has been made in the ROW, and after the same has been properly backfilled, the person making the excavation shall notify the Director that the same is ready for final repair. The Director or his/her duly authorized agent shall inspect the same. The judgment of the Director or his/her authorized agent as to when an excavation has been properly backfilled to permit final repair shall be conclusive. If any person fails to contact the Director for an inspection within a reasonable time, as determined by the excavation permit issued for the excavation, after completion of the work, to ensure that the rights-of-way or other public place has been restored to as good a condition as it was previous to such excavation being made, the excavation shall not be deemed complete, and the ROW user shall be in violation of this Chapter.

6. Notice Of Completion. The ROW user shall notify the Director upon completion of the excavation or facilities maintenance authorized by the excavation permit.

7. Guarantee Of Work. Every ROW user, in restoring the rights-of-way, shall guarantee its work and shall maintain it for forty-eight (48) months following its completion and in accordance with § 67.1834, RSMo. During the forty-eight (48) months, the ROW user shall, upon notification from the Director, correct all restoration work to the extent necessary, using any method as required by the Director. Said work shall be completed within a reasonable time, not to exceed thirty (30) calendar days, of the receipt of notice from the Director (not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable). In the event the ROW user is required to perform new restoration pursuant to the foregoing guarantee, the Director shall have the authority to extend the guarantee period for such new restoration for up to an additional forty-eight (48) months, or other greater period allowed by law, from the date of the new restoration requirements. The guarantee period shall be applicable to failure of the pavement surface as well as failure below the pavement surface.

Section 515.140 Curb, Gutter, And Sidewalk Requirements.

[Ord. No. 18-06, 2-21-2018]

A. Access Via Curb Cut Only. No new vehicular access shall be permitted to any lot abutting a City street without properly constructed curb cuts, gutters, and sidewalks. Construction of curbs, gutters and sidewalks shall meet the requirements and specifications of Section 405.120 and, in residential districts, Section 400.390, and as provided herein. In instances where vehicular access already exists due to prior development, any new development taking place on such lot shall also be required to comply with this Section and have a properly constructed curb cut, gutter, and sidewalk.

[Ord. No. 23-15, 10-18-2023]

B. Permit. Prior to commencement of construction of any curbs, gutters and sidewalks, the property owner or his/her agent shall apply for and receive a permit pursuant to the terms of Section 515.070 and deliver to the City the associated inspection fee and deposit to guarantee backfilling, restoration and safety.

C. Notice. No construction work shall commence on or in any public right-of-way, nor shall any sidewalks, curbs and gutters on any public right-of-way be cut until at least forty-eight (48) hours' notice of intention to commence work is given to the Code Enforcement Officer by the owner, developer or contractor. Said notice may be waived by the Code Enforcement Officer by the issuance of a permit.

D. Inspection. The City may cause the City Engineer or other qualified inspector to be present during the construction of such street, sidewalk, curb, way, alley or driveway entrance, and the City Engineer or the inspector on the job shall have authority to condemn any material not meeting standards specified by the City Engineer or the inspector. If any portion of the work in the right-of-way fails to meet the minimum requirements, the City Engineer or the designated inspector on the job shall cause all work on the right-of-way to be stopped until the unsatisfactory conditions are remedied.

E. Removal Of Substandard Work. If any portion of any street, sidewalk, curb, right-of-way, alley or driveway entrance is constructed contrary to the provisions of this Section, the City Engineer may order the installed material removed unless the owner, contractor, builder or developer shall cause bores and other tests, according to the requirements of the City Engineer, which satisfy the City Engineer that the work done is in conformity with the applicable specifications.

F. City's Right to Restore Surface. If the permittee shall have failed to restore the surface of the street to its original and proper condition or shall otherwise have failed to complete the excavation work covered by such permit, the Code Enforcement Officer, upon the advice of the City Engineer, may do all work and things necessary to restore the street and to complete the excavation work. The permittee shall be liable for the actual cost thereof and twenty-five percent (25%) of such cost in addition for general overhead and administrative expenses. The City shall have a cause of action for all fees, expenses and amounts paid out and due for such work and shall apply, in payment of the amount due it, any funds of the permittee deposited as herein provided, and the City shall also enforce its rights under the permittee's surety bond/escrow provided pursuant to this Chapter.

G. Specifications for Driveway Aprons. No new driveway apron shall be constructed except in compliance with City specifications and shall not be constructed of any material other than asphalt or concrete in compliance with applicable specifications. No new driveway apron may be constructed of rock or gravel.

[Ord. No. 23-15, 10-18-2023]

H. Specifications for Curbs, Gutters, and Sidewalks. All new developments or redevelopments abutting City streets shall be required to submit a preliminary plat to the City Clerk's office as required by Section 405.050; provided, however, when property is being developed or redeveloped but not being subdivided or which is not in the jurisdictional limits of the City but will access City streets, improvement plans shall be submitted to the City Clerk's office demonstrating the proposed improvements comply with the City's minimum standards of design and development found in Section 405.120. For property developed or redeveloped but not being subdivided or which is not in the jurisdictional limits of the City, City approval of preliminary/final plats shall not be required. In all cases, the owner, contractor, builder, or developer shall construct, at its sole expense, a curb, gutter, and sidewalk in compliance with City requirements, including following the St. Louis County Design Criteria, Federal requirements, including the Americans with Disabilities Act ("ADA"),[1] and any applicable Missouri Department of Transportation ("MoDOT") requirements, pertinent to curbs, gutter, and sidewalk construction. The owner, contractor, builder, or developer shall meet the requirements of Sections 515.120 and 515.130 in constructing the necessary gutter and sidewalk, as if the owner, contractor, builder, or developer met the definition of an "ROW user" within Chapter 515. Failure to submit construction drawings/plans to the City for the construction of curb, gutter and sidewalk improvements in compliance with this Section shall result in the denial of a curb cut.

[Ord. No. 23-15, 10-18-2023]

[1] Editor's Note: See 42 U.S.C.A. § 12101 et seq.

Section 515.150 Jurisdiction, Inspection, Stop-Work Orders, Appeals, And Penalties.

[Ord. No. 18-06, 2-21-2018]

A. Inspections. All work and facilities shall be subject to inspection by the City and the supervision of all federal, state, and local authorities having jurisdiction in such matters to ensure compliance with all applicable laws, ordinances, departmental rules and regulations, and the permit.

B. Stop-Work Orders. The Director shall have full access to all portions of the work and may issue stop-work orders and corrective orders to prevent unauthorized work or substandard work as established herein. Except in cases of an emergency or with approval of the Director, no work may be done in violation of a stop-work order issued by the Director.

C. Repairs When Defective. All violations of the standards and requirements herein shall be corrected within the time specified in the issuance of a written notice to correct. Action to correct violations which require immediate action shall be taken upon notification to the person by the City. Every person failing to comply with the oral or written notice shall be deemed in violation of this Chapter. If the action is not taken within the time period specified by notice and in addition to any other remedy, the Director may have the violation, including, but not limited to, the existence of mud or debris on the rights-of-way, immediately remedied, and the City's costs shall be reimbursed by the ROW user through the surety or otherwise. Nothing in this Subsection shall prevent prosecution of violation of this Chapter in the absence or in addition to the issuance of notice of violation.

D. Appeals. Unless otherwise required by law, the review procedures set forth in Chapter 150 shall govern appeals by an aggrieved person of a final action of the Director or any other City Official, officer, council, board, or commission that are claimed by an aggrieved person to be unlawful or an unconstitutional taking of property without compensation. To the fullest extent permitted by law, the review procedures of Chapter 150 shall be exhausted before any action may be filed in any court against the City or its officers, employees, boards, officials or commissions.

E. Enforcement; Attorneys' Fees. The City shall be entitled to enforce any provision of this Code through all remedies lawfully available, and any person determined to have violated the terms of this Code shall further be liable to pay the City's costs and attorneys' fees in enforcing such Code provisions. Additionally, any user of City services, rights-of-way, or other City facilities or property, shall, as a condition of such use or continued use, to the full extent permissible by law, be liable to pay the City's costs and attorneys' fees incurred in enforcing any lawful requirement applicable to such use, whether arising in contract, statute, ordinance, or other enforceable duty as to such use.

F. Penalties. In addition to any other penalties and remedies for violations that may exist in law or equity, any person that violates any provision of this Chapter shall be subject to such penalties as set forth in Section 100.220 of the City Code per day for each and every day the violation exists or continues.

Section 515.160 Reservation Of Rights.

[Ord. No. 18-06, 2-21-2018]

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.