City of Fenton, MO Article II Rights-Of-Way Management

Section 510.030 General Rights-Of-Way Obligations.

[R.O. 2009 § 510.030; Ord. No. 3663 § 2, 2-23-2017]

A. 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. Installation of all facilities in the rights-of-way are subject to and must be in compliance with all zoning and safety and building code requirements. For applications for installation of any facility in the rights-of-way: (1) the most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the Official Zone District Map, and (2) no application for a wireless facility shall be submitted for approval without attaching the City's consent to use the rights-of-way for the specific construction application in accordance with Chapter 67, RSMo., and compliance with this Chapter, specifically Section 510.050.

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

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

D. Agreement, Franchise, Or License Required. Except where otherwise authorized or required by applicable law, no person may own, control, lease, use, or install facilities or other structures in the rights-of-way without a franchise, ROW agreement, or license with 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 Agreement. A ROW agreement shall be required for all other ROW users, except as provided herein or otherwise required by law. Such ROW agreement shall conform to all applicable laws and requirements, but shall not be subject to procedures applicable to franchises.

3. License For Incidental Uses. Persons desiring to install an incidental use, which includes installation of temporary structures or minor incidental uses in the rights-of-way, such as driveway aprons, ingress or egress facilities, and similar incidental uses that utilize a small area of the rights-of-way and serves the principal structure, may be permitted without a franchise or ROW agreement pursuant to a license issued by the Director. The Director shall have discretion to establish such application form and the terms and conditions applicable to each license based on the proposed use consistent with the purposes of this Chapter or as otherwise established by law, including maintenance, indemnification, bonds, and insurance requirements. The applicant shall be required to pay an application fee and an inspection fee as established by the City. Any person granted a license hereunder shall be subject to the applicable requirements of this Chapter.

E. Grant And Nature Of Approval; Terms And Compensation. The authority granted by the City in any ROW agreement, license, or franchise shall be for non-exclusive use of the rights-of-way. Such grant does not in any way limit the continuing authority of the City through the proper exercise of its statutory powers to adopt and enforce ordinances necessary to provide for the health, safety, and welfare of the public. The City specifically reserves the right to grant, at any time, such additional agreements or other rights to use the rights-of-way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable laws. The granting of any agreement, license, or franchise shall not be deemed to create any property interest of any kind in favor of the ROW user. All franchises and ROW agreements shall be approved by ordinance or resolution of the Board of Aldermen 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 agreement shall include terms of use and be deemed to incorporate the terms of this Chapter and other applicable laws of the City, except as may be expressly stated in such ROW agreement, license, or franchise. The City may require compensation for use of the rights-of-way or other public property as may be reasonably required by the Board of Aldermen, subject to applicable law.

F. Use Of City Or Third-Party Facilities. No ROW 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 agreement or license excuse such person from first obtaining a pole attachment agreement or other express consent for such right or use before locating on facilities controlled or owned by the City or a third party.

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

H. 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 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.

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

J. No Cause Of Action Against The City. 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 agreement or franchise, or because of the enforcement thereof by said City, or from the use of the rights-of-way. Nothing herein shall preclude the ROW user from seeking injunctive or declaratory judgment relief against the City where such relief is otherwise available and the requirements therefor are otherwise satisfied.

K. 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 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 agreement, franchise, or license, and all rights hereunder shall cease, terminate, and become null and void, provided that said forfeiture shall not take effect until the City shall carry out the following proceedings: Before the City declares the forfeiture or revocation of a ROW agreement, franchise, or license, it shall first serve a written notice upon the person setting forth in detail the neglect or failure complained of, and the person shall have thirty (30) days thereafter, or such other reasonable period established by the Director, in which to cure the default by complying with the conditions of the such ROW 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 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.

L. 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 agreement, franchise, or license they are reserved, whether or not expressly enumerated.

Section 510.040 Franchise And ROW Agreement Requirements; Application.

[R.O. 2009 § 510.040; Ord. No. 3663 § 2, 2-23-2017]

A. Application Requirements.

1. Application Form. An application for a franchise or ROW agreement shall be submitted on a form provided by the City to the Director in writing and shall include all such information as is required herein and all such information required to determine compliance with this Chapter. The ROW user shall be responsible for accurately maintaining the information in the application during the term of any franchise or ROW 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. Each application shall at minimum contain the following information, unless otherwise waived by the Director:

a. The identity and legal status of the proposed applicant;

b. The name, address, email, fax, and telephone number 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 notice shall be sent, and shall be responsible for facilitating all necessary communications, including, but not limited to, certification to the City of any material changes to the information provided in such completed application during the term of any franchise or agreement;

c. The name, address, email, fax, and telephone number of a local officer whom the City may notify or contact at any time (i.e., twenty-four (24) hours per day, seven (7) days per week) concerning ROW work;

d. Proof of any necessary permit, license, certification, grant, registration, franchise, or any other authorization, required by any appropriate governmental entity, including, but not limited to, the FCC or the PSC;

e. A description of 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 ROW user;

f. A list of authorized agents, contractors, and subcontractors eligible to obtain ROW permits on behalf of the applicant. An application may be updated to add such person at the time of ROW permit application if the updated information on the application is submitted by an authorized representative of the applicant;

g. Information sufficient to determine the amount of net assets of the applicant;

h. 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 City;

i. 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.), Chapter 430, Art. VIII, Wireless Communications Facilities, of this Code, and other applicable laws or ordinances; and

j. Such other information as may be reasonably required by the City to determine requirements and compliance with applicable regulations.

k. Deposit Fees. Each such application for a franchise or ROW agreement shall be accompanied by a two hundred dollar ($200.00) application deposit fee for review, documentation, and approval of such agreement or franchise to recover any actual costs anticipated and incurred by the City in reviewing, documenting, or negotiating such 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 City approval after written notice from the City, subject to applicable law.

2. Standard For Approval Or Renewal. In reviewing an application for a new or renewal ROW 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 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.

3. Approval Process. After submission by the applicant of a duly executed and completed application, application deposit fee, and executed franchise or ROW 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 agreement (or a modified agreement otherwise acceptable to the City consistent with the purposes of this Chapter) and such executed franchise or ROW 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 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 510.050 Work And Facilities Regulations In The ROW.

[R.O. 2009 § 510.050; Ord. No. 3663 § 2, 2-23-2017]

A. No Interference. Every ROW user shall construct and maintain its facilities so as not to interfere with other users of the rights-of-way. The ROW user shall not interfere with or alter the facilities of the City or other ROW user without their consent and shall be solely responsible for such. Except as may otherwise be provided or as determined by the Director and Public Works Director, the ROW user shall, prior to commencement of ROW work, execute a City-approved resident-notification plan to notify residents affected by the proposed work. All construction and maintenance by the ROW user or its subcontractors shall be performed in accordance with industry standards. All facilities and other structures shall be installed and located to cause minimum interference with the rights and convenience of property owners, ROW users, and the City. Facilities and other structures shall not be placed where they will disrupt or interfere with other facilities, structures, or public improvements or obstruct or hinder in any manner the various utilities serving the residents and businesses in the City or public improvements. Above-ground facilities shall be constructed and maintained in such a manner so as not to emit any unnecessary or intrusive noise. When reasonable and necessary to accomplish such purposes, the Director and Public Works Director may require as alternatives to the proposed ROW work either less disruptive methods or different locations for facilities, provided that any required alternative:

1. Shall not increase expenses by more than ten percent (10%) of the applicant's costs for the work as proposed,

2. Shall not result in a decline of service quality, and

3. Shall be competitively neutral and non-discriminatory.

B. Subordinate Use. The ROW user's use shall be, in all situations, subordinate and subject to public municipal use. In situations where multiple users are in the same location, first the municipal use shall have priority followed by persons with a valid and current ROW agreement, franchise, or license with the City, followed by all others.

C. Wireless Antennas And Facilities. Pursuant to City authority, including Section 67.1830.6(f), RSMo., and the Uniform Small Wireless Facility Deployment Act (Sections 67.5110, et seq., RSMo.), and to properly manage the limited space in the City's right-of-way, minimize obstructions and interference with the use of the right-of-way by the public, and to ensure public safety, while also seeking to facilitate delivery of broadband technologies to City residents and businesses, wireless facilities shall be permitted in the right-of-way in compliance with the requirements applicable to other facilities and users in the right-of-way, and subject to the additional requirements set forth in this Section for wireless antennas and facilities.

[Ord. No. 3761 § 2, 12-18-2017; Ord. No. 3888, 12-20-2018]

1. General Conditions. Any wireless facilities shall be subject to conditions relating to the location (including prohibited or limited locations), design, height, appearance, safety, radio frequency, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the City to address changing infrastructure, technology, and uses of the right-of-way and/or City facilities. A wireless facility shall not be located or installed in a manner that results in interference with or impairs the operation of existing utility facilities or City or third-party attachments. Wireless antennas or facilities shall further comply with: (1) all applicable requirements for installation of any facilities in the ROW as set forth in this Chapter including a ROW permit, (2) the requirements of this Section, and (3) requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Sections 67.5090, et seq., RSMo.), Uniform Small Wireless Facility Deployment Act (Sections 67.5110, et seq., RSMo.), applicable zoning, building, and other regulations and approvals, specifically including Chapter 430, Art. VIII, Wireless Communications Facilities.

a. Specific Conditions.

(1) Small Wireless Facilities. Any "small wireless facility" meeting the requirements for "small wireless facility" as defined by Section 430.570 and as provided in Section 430.610 of the Zoning Code shall be authorized to be located in the right-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 Section 67.5113.3(9), RSMo., to the satisfaction of the City;

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

(d) Attestation that the proposed "small wireless facility" meets the volumetric requirements to meet the definition of a "small wireless facility" in Section 430.570 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 (Sections 67.5110, et seq., RSMo.).

(2) "Fast-Track" Small Wireless Collocation. Any wireless facility meeting the requirements of a "fast-track" small wireless facility as defined by Sections 430.570 and 430.610 of the Zoning Code, may be authorized to use and be located in the right-of-way with approval of the Director, subject to the following additional requirements:

(a) Attestation that the proposed facilities meet the volumetric requirements to meet the definition of "fast-track" in Section 430.570 of the Zoning Code;

(b) No ground equipment shall be authorized, unless placed underground;

(c) No "fast-track" facility shall be located in a manner which obstructs or causes a safety concern for vehicle or pedestrian traffic;

(d) If the proposed structure where the applicant proposes to locate its "fast-track" facility is not structurally sound, but the Director finds such to be a desired location, the Director can require the applicant to install a new substantially similar structure at its cost; and

(e) Compliance with the spacing requirements herein if granted a waiver under the "fast-track" zoning procedure to install a new structure.

(3) All Other Wireless In Right-Of-Way. Any wireless facility located on an "existing structure," as defined by Section 430.570 but not meeting the requirements of Subsection (C)(1)(a)(1), Small Wireless Facilities, or Subsection (C)(1)(a)(2), "Fast-Track" Small Wireless Collocation, above, may be approved, subject to reasonable and non-discriminatory 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 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 applicable zoning, right-of-way, and other applicable requirements.

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

3. Application Requirements. Any application including one (1) or more wireless antennas or facilities shall include all applicable and lawful requirements for:

a. Installation of any facilities in the right-of-way as set forth in this Section;

b. The requirements of this Subsection; and

c. Requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Section 67.5090, et. seq., RSMo.), Article VIII of Chapter 430, and other applicable law, including written proof of consent of the landowner and of the structure owner.

D. Underground Facilities And Above-Ground Facilities.

[Ord. No. 3888, 12-20-2018]

1. Underground And Collocation Of Facilities Required; Exceptions. In conjunction with the City's long-standing policy favoring underground facilities, no person may erect, construct, or install facilities above the surface of the right-of-way without the written permission of the City based on good cause established by applicant and found by the City, except as provided for herein or where prohibited by applicable law. 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 right-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 right-of-way in the public interest except where preempted by law or where good cause is established and written permission granted by the City. Such permission may be granted by the Board of Aldermen when other similar facilities exist above-ground and conditions are such that underground construction is impossible, impractical, or unfeasible, as determined by the City, and when in the City's judgment the above-ground construction has minimal aesthetic impact on the area where the construction is proposed. Where reasonable and appropriate and where adequate right-of-way exists, the ROW user shall place above-ground facilities underground in conjunction with City capital improvement projects and/or at specific locations requested by the City provided that such placement is practical, efficient, and economically feasible. New utility poles and related ground mounted equipment shall be permitted to be installed above ground; provided, however, that to ensure unobstructed pedestrian use and City maintenance of the ROW and minimize visual obstructions for vehicular traffic, a new utility pole and any ground mounted equipment related to that utility pole or the equipment thereon shall not be installed within one hundred and fifty (150) feet of another utility pole or other ground mounted equipment on the same side of the ROW. A replacement utility pole that is installed in lieu of an existing utility pole and is installed within ten (10) feet of the existing utility pole, shall not be considered a new utility pole subject to the spacing requirements herein. Such spacing regulations as applied to that specific site may be altered by the Board of Aldermen.

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

3. Excluded Facilities. To the extent permitted by applicable law, the Director and Public Works Director may designate certain locations or facilities in the right-of-way to be excluded from use by the applicant for its facilities. 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. Such exclusions, include, but are not limited to:

a. Ornamental or similar specially designed streetlights;

b. Designated historic areas;

c. Facilities, equipment, structures, or locations that do not have electrical service adequate or appropriate for the proposed facilities or cannot safely bear the weight or wind loading thereof; provided, however, that a wireless provider, as defined by Section 67.5111, RSMo., shall be permitted to replace decorative poles when necessary to collocate a small wireless facility so long as any such replacement pole reasonably conforms to the design aesthetics of the decorative poles being replaced;

d. Facilities, equipment, structures, or locations that in the reasonable judgment of the Director and Public Works Director are incompatible with the proposed facilities or would be rendered unsafe or unstable by the installation; and

e. Facilities, equipment, structures, or locations that have been designated or planned for other use or are not otherwise available for use by the applicant due to engineering, technological, proprietary, legal, or other limitations or restrictions.

4. Location; Design. The design, location, and nature of all facilities shall be subject to the review and approval of the Director and Public Works Director. Such review shall be on a non-discriminatory basis in application of City policy and approvals shall not be unreasonably withheld. Above-ground facilities shall be a neutral color and shall not be bright, reflective, or metallic. Black, gray, and tan shall be considered neutral colors, as shall any color that blends with the surrounding dominant color and helps to camouflage the facilities. Facilities shall be located in such a manner as to reduce or eliminate their visibility. 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 City. City height limitations, applicable zoning restrictions, and general City policies with regard to all users of the right-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 affect this provision.

5. Exception. If the application of this Section excludes locations for above-ground facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant or State or Federal law, the Director and Public Works Director shall cooperate in good faith with the applicant to attempt to find suitable alternatives, but the City shall not be required to incur any financial cost or to acquire new locations for the applicant.

E. Relocation Of Equipment And Facilities.

1. 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.

2. 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.

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

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

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

6. 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.

F. Removal, Abandonment, And Transfer Of Facilities.

1. Abandonment. If a person having facilities in the rights-of-way:

a. Installs the facilities in the rights-of-way without having complied with the requirements of this Chapter, or

b. Abandons the facilities,

the City may require the removal of the facilities, remove the facilities at the expense of the person having facilities in the rights-of-way, take possession of the facilities in accordance with applicable law, or require the transfer of the facilities as provided herein.

2. Removal Required. If the City requires removal of the facilities, the person shall obtain a ROW permit and shall abide by all requirements of this Chapter. The liability, indemnity, insurance, and bonding requirements required herein shall continue in full force and effect during and after the period of removal and restoration and until full compliance by the person with the terms and conditions of the ROW permit and the requirements of this Chapter.

3. Failure To Remove — Abandonment. If the person fails to remove the facilities after having been directed to do so, the City may, to the extent permitted by law, have the removal done at the person's expense. Alternatively, the City may permit the abandonment, without removal of the facilities, if the Director and Public Works Director determines that abandonment is not likely to prevent or significantly impair the future use, repair, excavation, facilities maintenance, or construction of the rights-of-way.

4. Failure To Remove — Transfer. If the person fails to remove the facilities after having been directed to do so, the City may, to the extent permitted by law, decide that the ownership of the facilities should be transferred to the City or to such person as directed by the City. In either case the owner of the facilities shall submit a written instrument, satisfactory in form to the City, transferring to the City, ownership of the facilities. The City may sell, assign, or transfer all or part of the facilities so transferred.

5. Notice Required. Except when safety requires it, the City shall not remove or seek to possess or transfer the facilities until thirty (30) days have passed following written notice by the Director to the person having facilities in the rights-of-way of the City's intent to so act. The Director may choose not to act on good cause shown by the person having facilities in the rights-of-way.

6. 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, those set forth in this Subsection (F) of this Section.

G. City Facilities. To the extent permitted by law, during ROW work by a ROW user, the City shall have the right to install and to thereafter maintain, at its own cost, any parallel City facilities of its own that do not unreasonably interfere with the operations of other facilities.

H. Tree Trimming. Upon ten (10) days' written notice and with the supervision of the City or as otherwise provided by law or agreement, the City may permit a ROW user to trim trees that overhang rights-of-way of the City so as to prevent the branches of such trees from coming in contact with facilities in the ROW, at its own expense, subject to the supervision and direction of the City. Nothing in this paragraph shall authorize the trimming of trees on private property without permission of the property owner. All cut materials shall be properly disposed. Unless otherwise approved in writing by the City, a ROW user shall not remove, cut or damage any trees or their roots in the rights-of-way.

I. Crossing Curbs.

1. Operator Prohibition. No person who operates or drives any heavy equipment or other vehicle used for construction purposes shall traverse, cross or otherwise drive over, or attempt to traverse, cross or otherwise drive over, a curb, sidewalk, or crossing in the rights-of-way at any point other than a properly installed curb cut, unless the applicable curb, sidewalk, or crossing is sufficiently and fully protected by the laying down of planks or materials which will prevent injury thereto.

2. Property Owner Prohibition. No owner or occupant of any real property shall cause, authorize, or allow any person who operates or drives any heavy equipment or other vehicle used for construction purposes to traverse, cross, or otherwise drive over, or attempt to traverse, cross, or otherwise drive over, a curb, sidewalk, or crossing in the rights-of-way on or abutting the real property of such owner or occupant at any point other than a properly installed curb cut, unless the applicable curb, sidewalk, or crossing is sufficiently and fully protected by the laying down of planks or materials which will prevent injury thereto.

3. Responsible For Damages. Any person who causes damage to the curb, sidewalk, crossing or rights-of-way as a result of the traversing, crossing, or otherwise driving over, or attempting to traverse, cross, or otherwise drive over the curb, sidewalk, or crossing with any heavy equipment or other vehicle used for construction purposes shall be held responsible to the City for the cost of repairing any break or injury and be in violation of Section 205.1040 (Property Damage), as well as this Chapter.

J. Landscaping In Rights-Of-Way. Shrubs, bushes, flowers, or ornamental grasses may be permitted within the rights-of-way as long as such does not obstruct the view of vehicle or pedestrian traffic. New trees shall not be authorized to be planted within the rights-of-way. 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 City shall remove such vegetation to protect the general welfare of the public at the sole cost of the person that severely damaged of disturbed the same. If a natural event shall severely disturb or damage a tree or other landscaping in the rights-of-way, the City shall remove the same but shall not be obligated to replace the same. In reviewing any ROW 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.

Section 510.060 Performance And Maintenance Bonds.

[R.O. 2009 § 510.060; Ord. No. 3663 § 2, 2-23-2017]

A. Performance And Maintenance Bonds.

1. Bond Required. Prior to any ROW 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 510.080(B)(6). The bond shall continue in full force and effect for a period of forty-eight (48) months following completion of the work. The Director may waive this requirement when the work involves, as determined in the sole discretion of the Director, no or only minor disruption or damage to the rights-of-way. The bond requirement herein shall not apply to a ROW user who has on file with the City an affidavit certifying that it has twenty-five million dollars ($25,000,000.00) in net assets and is otherwise therefore so exempted.

2. Failure To Satisfactorily Complete Restoration. If a ROW user fails to complete the ROW 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 and Public Works 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. Release Of Bond. Upon completion of ROW work to the satisfaction of the Director and Public Works Director and upon lapse of the bond period, including any extension by the Director, the City shall release the bond.

4. Bond Terms. The bond shall be issued by a surety with an "A" or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition, shall be subject to the approval of the City's Attorney and shall contain the following endorsement: "This bond may not be cancelled or allowed to lapse until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."

5. Exceptions. In lieu of the bond required herein, the ROW user may establish in the City's favor such other security as the Director may determine to be commensurate with the noted bonding requirements, including, but not limited to, an annual bond to be maintained in the minimum amount of twenty-five thousand dollars ($25,000.00). Additionally, in accordance with Section 67.5121(4), RSMo., the bonds required for "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act shall not exceed one thousand five hundred dollars ($1,500.00) per "small wireless facility" or more 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.

[Ord. No. 3888, 12-20-2018]