University City, MO Article III Public Right-Of-Way Use Regulations

Section 505.210 Property Owners Authorized To Make Certain Improvements — Permit — Supervision — Bond.

[R.O. 2011 §12.04.060; Ord. No. 6303 §1 (part), 2001]

A. The Director of Public Works and Parks is authorized to grant permission to the owners of property fronting upon or adjoining any street, avenue, public highway or alley to grade, construct or reconstruct the curbing, roadway, paving or sidewalk paving of such street, avenue, public highway or alley, and sewers therein, at such property owner's own cost and expense, and such work shall be done under the supervision of, and according to plans and specifications approved by, the Director of Public Works and Parks.

B. Before a written permit to do the work is issued by the Director of Public Works and Parks after application therefor is made, the applicant shall pay a filing fee in the amount of fifty dollars ($50.00) to the Director of Public Works and Parks. The amount of the filing fee may be adjusted by the Director of Public Works and Parks from time to time to reflect the average cost of the actual time expended in the administration, inspection and superintendence of such work.

C. Before such permit is issued, the applicant shall deposit with the Director of Public Works and Parks a sum of cash, and shall file with the Director of Public Works and Parks a continuing bond with good and sufficient sureties payable to the City, both conditional upon the faithful performance of all the requirements of the permit and the law, and the restoration of the street, avenue, public highway or alley, and the sewers therein, in as good a condition as it was before the work was done. The amount of the deposit and bond shall be sufficient, in the judgment of the Director of Public Works and Parks, to ensure the faithful performance of such conditions, and in no case shall the deposit be less than two hundred fifty dollars ($250.00) nor the bond be less than one thousand dollars ($1,000.00). All cash so deposited shall be kept in a special fund in the City depository and shall be repaid after all deductions, if any, have been made by the Director of Public Works and Parks to satisfy such conditions. Upon completion of the work to the satisfaction of the Director of Public Works and Parks, the Director of Public Works and Parks shall authorize the termination of the bond.

D. If the work is not commenced within thirty (30) days after the issuance date of the permit, or if the work is suspended or substantially abandoned for a period of thirty (30) days after the time of commencing work, the permit shall become invalid unless an application to extend this time is received prior to the expiration of the period and the Director of Public Works and Parks grants a time extension for good cause. All work must be completed by the expiration date specified in the permit, which shall be set based upon the amount of time the Director of Public Works and Parks deems necessary to complete the work, provided that the Director of Public Works and Parks may grant an extension of the expiration date for good cause. The permit and all approved plans and specifications shall be available at the work site at all times, and shall be produced for the Director of Public Works and Parks upon request.

E. Upon notice from the Director of Public Works and Parks that the work is being prosecuted contrary to the permit or in an unworkmanlike or unsafe manner, such work shall immediately stop. The stop work order shall be in writing and shall be given to the person doing the work or posted at the work site.

F. The Director of Public Works and Parks is authorized to adopt and promulgate rules and regulations to interpret and implement the provisions of this Section to secure the intent thereof and to promote the public health, safety and general welfare.

Section 505.220 Right-Of-Way Management.

[R.O. 2011 §12.04.070; Ord. No. 6467 §1, 2003]

A. Applicability And Administration. This Section shall apply to all persons desiring to construct, reconstruct, restore, repair, replace, operate, maintain, excavate or occupy, or obtain any easement on any public rights-of-way within the City. The Director of Public Works and Parks is authorized to administer right-of-way permits for work, occupation, and excavations made in the right-of-way, and is authorized to adopt and promulgate rules and regulations to interpret and implement the provisions of this Section to secure the intent thereof and to promote the public health, safety and general welfare. The rights granted to use the right-of-way shall be for the sole use of the right-of-way user and are limited to the use as set forth by the right-of-way user in its permit application and related documents filed with the Public Works and Parks Department in accordance with this Section. Except as otherwise expressly permitted by State or Federal law, no other person may use the right-of-way user's right, unless authorized by the City. All right-of-way users shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power, and are subject to all applicable laws, orders, rules and regulations adopted by governmental entities now or hereafter having jurisdiction. In addition, the right-of-way 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, utility location, construction coordination, surface restoration, and other requirements on the use of the right-of-way.

B. Definitions And Word Usage. For the purposes of this Section, the following terms, phrases, words, and abbreviations shall have the meanings given herein:

ABANDONED FACILITIES

Those facilities owned by the right-of-way user that are not in use and will not be utilized by the owner in the future.

APPLICANT

Any person requesting permission to occupy, use or to excavate the right-of-way.

CITY

The City of University City, Missouri, a municipal corporation, and any duly authorized representative thereof.

CONSTRUCT

To construct, install, erect, build, affix or otherwise place any fixed structure or object in, on, under, through or above the right-of-way.

DAY

Calendar day unless otherwise specified.

DIRECTOR OF PUBLIC WORKS AND PARKS

The Director of Public Works and Parks for the City, or any authorized representative.

EMERGENCY

An unexpected or unplanned outage, cut, rupture, break, leak or any other public hazard condition (i.e., sewage backup) or as specifically defined by State law for utilities.

EXCAVATE

Any cutting, digging, excavating, tunneling, boring, grading or other alteration of the surface or subsurface material or earth in the right-of-way.

FACILITY OR FACILITIES

Lines, pipes, irrigation systems, wires, cables, conduit facilities, poles, towers, vaults, pedestals, boxes, appliances, antennae, transmitters, gates, meters, rails, appurtenances or other equipment.

PAVEMENT

Includes Portland cement concrete pavement, asphalt concrete pavement, asphalt treated road surfaces and any aggregate base material.

PERMITTEE

Any person to whom a right-of-way permit is issued.

PERSON

Any natural or corporate person, business association or business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.

PUBLIC IMPROVEMENT

Any project undertaken by the City for construction, reconstruction, maintenance, or repair of any public infrastructure.

PUBLIC WORKS AND PARKS DEPARTMENT

The Department of Public Works and Parks of the City.

REGISTRATION

The permit application process of a service provider, the approval of the application by the City, and the authorization of the service provider to use any portion of the right-of-way within the City to provide service within the City limits.

REPAIR

The temporary construction work necessary to make the right-of-way usable.

RESTORATION

The process by which an excavated or occupied right-of-way and surrounding area, including pavement and foundation, is returned to the same or better condition that existed before the commencement of the work.

RIGHT-OF-WAY

The area on, below or above the present and future City streets, alleys, bridges, bikeways, tree lawn or green space, sidewalks, curbs and aprons.

RIGHT-OF-WAY MANAGEMENT COSTS

The fee charged by the City to recover its cost incurred for right-of-way management, including, but not limited to, costs associated with registering applicants; issuing, processing, and verifying right-of-way permit applications; inspecting job sites and restoration of projects; protecting or moving user construction equipment; restoring right-of-way work inadequately performed, determining the adequacy of right-of-way restoration or occupation; revoking right-of-way permits; and other costs the City may incur in managing the right-of-way.

RIGHT-OF-WAY PERMIT

The authorization to occupy or excavate for the construction, installation, repair, restoration or maintenance of any type of facility within the right-of-way.

RIGHT-OF-WAY USER

A person or entity that uses or occupies the right-of-way for purposes of work, excavation, provision of services, or to install, construct, maintain or repair facilities thereon.

SERVICE

A commodity provided to a person by means of a delivery system that is comprised of facilities located or to be located in the right-of-way, including, but not limited to, gas, telephone, cable television, Internet services, alarm systems, electric, water, telegraph, transportation systems, data transmission, sanitary sewerage, or other utility or service.

SERVICE PROVIDER

Any entity that is a provider of a service for or without a fee.

STREET

The pavement and subgrade of a City residential, collector or arterial roadway.

TREE LAWN OR GREEN SPACE

The area between a property line and the street curb, sometimes called boulevard, tree-shelf or snow-shelf.

C. Agreement Required; User Fee.

[Ord. No. 7068, 12-11-2017]

1. Right-Of-Way Use Agreement, License, Or Franchise Required. Except where otherwise authorized or required by applicable law, no Person may own, control, lease, maintain, use, or install Facilities in the Right-of-Way without a valid Franchise, License, or Right-of-Way Use Agreement with the City as provided herein and as follows:

a. Franchise. A Franchise shall be obtained in conformance with all applicable Franchise procedures for any Right-of-Way User seeking to use the Right-of-Way for the purpose of providing, transporting or distributing electricity, gas, water, steam, lighting, energy, or sewer service to any Person or area within the City's limits and boundaries.

b. Right-Of-Way Use Agreement. A Right-of-Way Use Agreement shall be required for all other Right-of-Way Users, except as provided herein or otherwise required by law. A Right-of-Way Use Agreement shall conform to all applicable laws and requirements, including as provided herein, but shall not be subject to procedures applicable only to Franchises.

c. License For Incidental Uses. Persons desiring to install an incidental use, which includes installation of temporary structures or minor incidental uses in the Right-of-Way, such as driveway aprons, ingress or egress facilities, and similar incidental uses, that utilize a small area of the Right-of-Way and serves the principal structure, may be permitted without a Franchise or Right-of-Way Use Agreement pursuant to a License issued by the Director of Public Works and Parks. The Director of Public Works and Parks shall have discretion to establish such application, requirements, and conditions applicable to such uses consistent with the purposes of this Chapter or as otherwise established by law. Any Person granted a License hereunder shall be subject to the applicable requirements of this Chapter. Unless otherwise stated in the License, a License shall be for an indefinite term and shall be revocable at any time on written notice in the public interest by the City.

2. Application Required. An application for a Franchise or Right-of-Way Use Agreement, shall be provided to the City on City forms and shall include all such information as is required by this Section and as determined necessary by the Director of Public Works and Parks. An application deposit of five hundred dollars ($500.00) is hereby established and 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; any amount not used by the City for its actual lawfully reimbursable costs will be refunded upon request after execution of a Right-of-Way 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 Right-of-Way Use Agreement or Franchise that may reasonably exceed the application deposit amount. The Right-of-Way User shall be responsible for accurately maintaining the information in the application during the term of any Franchise or Right-of-Way 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.

3. Condition Precedent To Right-of-Way Permit. Unless otherwise required by applicable law, no Right-of-Way permit may be issued unless such person has a valid Franchise or Right-of-Way Use Agreement with the City.

4. Grant And Nature Of Approval; Terms. The authority granted by the City in any Right-of-Way Use Agreement, License or Franchise shall be for non-exclusive use of the Right-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 Right-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 Right-of-Way Use Agreement, License or Franchise shall not be deemed to create any property interest of any kind in favor of the Right-of-Way User nor shall it create any relationship of agency, partnership, joint venture, or employment between the parties. All Franchises and Right-of-Way Use Agreements shall be approved by ordinance or resolution of the City Council on a non-discriminatory basis provided that the Person is in compliance with all applicable requirements.

5. No Warranty. 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 Right-of-Way and shall not be liable for any damage therefrom. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon the Right-of-Way User. The Right-of-Way User shall be solely liable for any damages to Facilities or other property due to excavation or other Right-of-Way work performed prior to obtaining the location of all Facilities within the work area. The Right-of-Way 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.

6. Use Of City Or Third-Party Facilities. No Right-of-Way Use Agreement, License, or Franchise shall grant the right to use Facilities owned or controlled by the City or a third party, and no such use shall occur, without the express written consent of such party (on file with the City and subject to other applicable requirements), nor shall any Right-of-Way Use Agreement, License, or Franchise 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.

7. Lease Required For Public Lands. Unless otherwise provided, use or installation of any Facilities in non-Right-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, and subject to Charter Chapter C, Article XI, Section 98, limiting the use of designated Public Park or Recreational Facility in Section 115.270.

8. Right-Of-Way User Fees.

a. User Fee. Unless otherwise established by the City Council or applicable law, each Right-of-Way User shall pay to the City as compensation for the use of the public way, and including as referenced in Section 505.220(G)(4), a user fee as follows:

[Ord. No. 7093, 1-14-2019; Ord. No. 7136, 12-14-2020]

(1) Linear Foot Fee: one thousand dollars ($1,000.00) per month for the first mile of linear facilities, or part thereof, plus a monthly payment of $0.165 per linear foot of facilities located in the right-of-way, for an annual amount of one dollar and ninety-eight cents ($1.98) per linear foot of facilities in the right-of-way; provided that all right-of-way users shall be entitled to a credit against the user fee due hereunder equal to the payment(s) from such right-of-way user in accordance with Section 67.1846, RSMo.; provided, however, such credit cannot exceed the amount due under this Subsection and may not be carried forward or back to any other time period, and a credit shall not apply to any taxes paid under protest or otherwise paid with qualification unless so required by law. Beginning January 1, 2021, and each year thereafter on January 1, the Linear Foot Fee rate of $0.165 per linear foot for each foot after the first mile, as outlined above, shall automatically increase by two percent (2%) annually. This rate, and any annual increases that occur beginning January 1, 2021, or thereafter, shall also apply to all new ROW Users upon execution of a ROW Use Agreement and City Council approval.

b. Bundled Services. The Right-of-Way User expressly acknowledges and agrees that to the extent it markets bundled services, including combination of goods or services, it will fairly reflect to the City an appropriate and reasonable division of services among the various services offered based on the actual value of each separate service. Whether or not the Right-of-Way User separates services on a subscriber's bill, it will provide to the City notice of any such allocation sufficient for City verification. Should the Right-of-Way User engage in billing or payment practices that, in the reasonable determination of the City, do not fairly reflect a fair and appropriate allocation, the City may nullify such allocation and require payment applicable to the full receipts.

c. Timing Of Payment Of User Fees. Unless otherwise agreed to in writing, all Right-of-Way User fees shall be due and payable every month of each calendar year within thirty (30) days after the end each such month. The Rights-of-Way User Fees due to the City shall be paid based on the sum of the actual Linear Foot of Facilities installed in the City's ROW and any additional Linear Foot approved by permit for installation. A credit of the applicable gross receipts tax for that same period may be taken against the linear foot payment for that month.

[Ord. No. 7136, 12-14-2020]

d. Interest Of Late Payments And Under Payments. If any right-of-way user fee, or any portion thereof, is not postmarked or delivered on or before the due date, interest on the payment and interest on the unpaid balance shall accrue from the due date until received, at the rate of one and one-half percent (1.5%) per month, of the total amount past due, unless such other maximum rate is established by law.

[Ord. No. 7093, 1-14-2019]

e. Fee Statement; Retroactive Adjustments. Each Right-of-Way User fee payment shall be accompanied by a statement, certified as true, showing the manner in which the Right-of-Way User fee was calculated including the total number of feet of Right-of-Way occupied by the Right-of-Way User's Facilities and number of antennas in the Right-of-Way, the per foot linear foot rate applied, any credit or adjustment taken (including setting forth the prior month's gross revenue and describing what revenues or receipts were included and excluded in the fee paid), and the payment of the user fee made. If any fee statement is determined to understate the fee owed, then such additional amount owed shall be made with a corrected statement, including interest on said amount as provided herein. No refund, credit or offset shall be granted for any claimed payment or overstatement of the amount due or certification of facilities reported, provided that a corrected payment or report may be filed within the time for the original time for payment.

f. No Accord And Satisfaction. No acceptance by the City of any use fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any use fee payment be construed as a release of any claim of the City.

g. Maintain Records. Right-of-Way Users shall at all times maintain complete and accurate books of account and records of the business, ownership, and operations of the Right-of-Way User with respect to the Facilities in a manner that allows the City to determine whether the Right-of-Way User has properly calculated its user fee in compliance with this Section. Should the City reasonably determine that the records are not being maintained in such manner, the Right-of-Way User shall correct the manner in which the books and/or records are maintained so that the Right-of-Way User comes into compliance with this Section. All financial books and records which are maintained in accordance with FCC regulations and the regulations of any governmental entity that regulates utilities in Missouri, and generally accepted accounting principles shall be deemed to be acceptable under this Section. Such books and records shall be maintained for a period of at least three (3) years.

h. Right Of Inspection. The City or its designated representatives shall have the right to inspect, examine, or audit, during normal business hours and upon seven (7) calendar days' notice, all documents, records, or other information that pertains to the Facilities within the Right-of-Way and/or Right-of-Way User's user fee obligations. In addition to access to the records of the Right-of-Way User for audits, upon request, Right-of-Way User shall provide reasonable access to records necessary to verify compliance with the terms of this Section.

i. Fees And Compensation Not A Tax. The fees and costs provided for in this Section, and any compensation charged and paid for the use of the Right-of-Way as provided for in this Section, are separate from, and additional to, any and all Federal, State, City or other local taxes as may be levied, imposed, or due.

9. No Cause Of Action Against The City. A Right-of-Way 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, License, Franchise, or other written authorization or because of the enforcement thereof by said City, or from the use of the Rights-of-Way. Nothing herein shall preclude the Right-of-Way User from seeking injunctive or declaratory judgment relief against the City where such relief is otherwise available and the requirements therefor are otherwise satisfied.

10. Compliance With Laws. Each Right-of-Way 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. Right-of-Way 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, safety, and building code requirements. For applications for installation of wireless Facilities in the Rights- of-Way: (1) the most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the official zoning map, and (2) no application shall be submitted for approval without attaching the City's consent to use the Rights-of-Way for the specific construction application in accordance with Chapter 67, RSMo.

11. Indemnification. Every right-of-way user, as a condition of use of the right-of-way, shall at its sole cost and expense fully indemnify, protect, defend (with counsel for the City 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 right-of-way user, its agents, representatives, employees, contractors, subcontractors, or any other person for whose acts the right-of-way user may be liable, in constructing, operating, maintaining, repairing, restoring or removing facilities, or use of the right-of-way or the activities performed, or failed to be performed, by the right-of-way user under this Section or applicable law, or otherwise, except to the extent arising from or caused by the sole or gross negligence or willful misconduct of the City, its elected officials, officers, employees, agents, or contractors. Nothing herein shall be deemed to prevent the City or any agent from participating in the defense of any litigation by their own counsel at their own expense. Such participation shall not, under any circumstances, relieve the person from the duty to defend against liability or its duty to pay any judgment entered against the City or its agents; provided, however, that in accordance with Section 67.5121(2), RSMo., a right-of-way user solely to the extent a right-of-way user is operating a "small wireless facility" as defined in the Uniform Small Wireless Facility Deployment Act within the right-of-way shall only indemnify and hold the City, its officers and employees harmless against any damage or personal injury caused by the negligence of the right-of-way user, its employees, agents, or contractors. This exception shall only apply to the right-of-way user's small wireless facilities and shall not otherwise alter the obligations of a right-of-way user to provide indemnification to the City for any other activities or operations.

[Ord. No. 7093, 1-14-2019]

12. Right-Of-Way User Responsible For Costs. The Right-of-Way User shall be responsible for all reasonable costs borne by the City that are directly associated with Right-of-Way 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 a permit fee, 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 Right-of-Way User.

D. Right-Of-Way Permit Required.

1. No right-of-way user may excavate or occupy any right-of-way or conduct any repair, construction, or reconstruction of facilities located within the right-of-way without first having obtained the appropriate right-of-way permit. No person shall make or cause to be made, or help, aid or assist another person make, any excavation on any public right-of-way, before a written permit to make the excavation is issued by the Director of Public Works and Parks after application is made therefor.

2. No person owning or occupying any land abutting on a public right-of-way shall construct, maintain, or permit in or on the portion of the public right-of-way to which such land is adjacent any fixed structure, material or object other than a U.S. mailbox without having obtained the appropriate right-of-way permit. Owners of property fronting upon or adjoining any public right-of-way, at their own expense, may grade, construct or reconstruct the curbing, roadway, paving or sidewalk paving of the right-of-way only with the permission of and under the supervision of the Director of Public Works and Parks. All plans and specifications must be approved by the Director of Public Works and Parks.

3. No person shall construct, alter, or repair a building or facility or cause the same to be done, or help, aid, or assist another person construct, alter or repair a building or facility upon public right-of-way, before a written permit to do such work is issued by the Director of Public Works and Parks, after application is made therefor.

4. A right-of-way permit is required for emergency situations. If, due to an emergency, it is necessary for the right-of-way user to immediately perform work in the right-of-way, and it is impractical for the right-of-way user to first get the appropriate permit, the work may be performed, and the required permit shall be obtained during the next business day. The right-of-way user shall call the Public Works and Parks Department and give notification of the emergency on the day it occurs, and on the next business day after, the right-of-way user shall apply for a right-of-way permit (all applicable fees apply) in order to continue working.

5. A right-of-way permit is not required for the following:

[Ord. No. 7093, 1-14-2019]

a. Routine maintenance on previously approved small wireless facilities, as defined by Section 400.1382;

b. Replacement of such small wireless facilities that are the same or smaller in size, weight, and height; or

c. Installation placement, maintenance, operation, or replacement of micro wireless facilities, as defined by Section 67.5111, RSMo., that are strung on cables between utility poles in compliance with applicable safety and building codes;

when such work will not involve excavation, affect traffic patterns, obstruct traffic in the right-of-way, or materially impede the use of a sidewalk, and provided the right-of-way 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 right-of-way.

E. Permit Applications.

1. Application for a right-of-way permit shall be submitted to the Director of Public Works and Parks by the person who will do the work and/or excavation in the right-of-way. The Director of Public Works and Parks shall have the right to review and approve the location, design and nature of the facility/project prior to installation and issuance of a permit. A right-of-way user shall not construct or reconstruct any of its facilities located upon, over, under or within the City right-of-way without first having submitted in writing a description of its planned improvement to the Director of Public Works and Parks and having received a permit for such improvement. The right-of-way user shall coordinate the placement of facilities in a manner that minimizes adverse impact on any public improvement, as determined by the Director of Public Works and Parks. The right-of-way user's use of the right-of-way shall in all matters be subordinate to the City's use or occupation of the right-of-way.

2. Right-of-way applications shall contain and be considered complete only upon receipt of the following: submission of a completed permit application form, including all required attachments and drawings showing the location and area of the proposed project and the location of all existing and proposed facilities at such locations, and any other project information requested by the Director of Public Works and Parks; a traffic control plan; payment of all money due to the City for permit fees and costs, and for the current permit and prior permit costs, and for any loss, damage or expense suffered by the City because of the applicant's prior excavations of the right-of-way, or for any emergency actions taken by the City, unless the payment of such money is in dispute and timely appealed as provided hereafter; and a commitment from the applicant to contact the Missouri One Call program or comparable successor program.

F. Liability Insurance.

[Ord. No. 7068, 12-11-2017; Ord. No. 7093, 1-14-2019]

1. Except as provided in this Section, each right-of-way user shall provide, at its sole expense, and maintain during the term of an agreement or franchise, 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 right-of-way user, the City, and the City's officials, officers, and employees from claims which may arise from operations under an agreement or franchise, whether such operations are by the right-of-way user, its officers, directors, employees and agents, or any subcontractors of the right-of-way 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 right-of-way 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 at least two million eight hundred sixty-five thousand three hundred thirty dollars ($2,865,330.00), but 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 shall be provided which states that the City is listed as an additional insured 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 of Public Works and Parks. 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 right-of-way user to the extent and for such period during an agreement or franchise as a right-of-way 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 right-of-way user has twenty-five million dollars ($25,000,000.00) in net assets and is otherwise, therefore, so exempted unless otherwise provided by agreement or franchise. Additionally, in accordance with Section 67.5121(3), RSMo., a self-insured right-of-way user shall not be required to obtain insurance naming the City as an additional insured solely to the extent such right-of-way user is utilizing "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act within the right-of-way. This exception to the City's insurance requirements shall only apply as related to such small wireless facilities and shall not otherwise alter the obligations of a right-of-way user to provide appropriate insurance to the City for any other activities or operations. The City reserves the right to waive any and all requirements under this Section when deemed to be in the public interest.

2. A copy of the liability insurance certificate, or other proof of compliance if otherwise requested by the City shall be delivered by the Right-of-Way User to the city clerk.

G. Right-Of-Way Permit Fees.

1. The applicant shall pay a non-refundable filing fee in the amount of fifty dollars ($50.00) to the Director of Public Works and Parks. The amount of the filing fee may be adjusted by the Director of Public Works and Parks from time to time to reflect the average cost of the actual time expended in the administration, inspection and superintendence of such work.

2. The applicant shall pay an excavation fee to the City equal to the number of square feet of the excavation cut multiplied by one dollar fifty cents ($1.50). The excavation fee may be adjusted by the Director of Public Works and Parks from time to time to reflect changes in the average cost to manage and inspect the City's right-of-way.

3. The applicant shall pay additional management, administrative and inspection fees to be determined by the Director of Public Works and Parks based on the actual time expended in the management, administration, inspection and superintendence of such work. A current fee schedule shall be maintained in the rules and regulations on file in the office of the Director of Public Works and Parks.

4. The applicant shall pay an additional fair and reasonable linear foot fee or antenna fee for use of the right-of-way. A current fee schedule shall be maintained in the rules and regulations on file in the office of the Director of Public Works and Parks.

H. Deposit, Performance Bond Requirements. Before a permit is issued, the applicant shall deposit with the Director of Public Works and Parks a sum of cash, and shall file with the Director of Public Works and Parks a continuing bond with good and sufficient sureties payable to the City, both conditional upon the performance of all the requirements of the permit and the law, and the restoration, to the satisfaction of the Director of Public Works and Parks, of the public street, avenue, highway, alley, tree, lawn or other public place, easement or right-of-way in as good a condition as it was, or better, before the work was done. Each permit shall have a separate cash deposit and performance bond to guarantee backfilling, paving, and/or site restoration of the particular project. The performance bond shall list the specific project for which the applicant is requesting a permit. The bond shall continue in full force and effect for a period of forty-eight (48) months following completion of the work. 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." The approximate cost of granular backfill, repaving operations, and general site restoration will be estimated by the Director of Public Works and Parks at the time an application for a right-of-way permit is submitted, and the cost so estimated shall be deposited with the City prior to permit issuance. The amount of the deposit shall be reasonably sufficient to secure the City against any damage or expense that may result from the applicant's failure to comply with the provisions of the permit. The amount of such deposit shall be based upon the location, purpose, and extent of the work. The amount of the cash deposit and bond shall vary. The minimum deposit shall be two hundred fifty dollars ($250.00). The minimum bond shall be at least one thousand dollars ($1,000.00). Any occupation/blockage of the right-of-way for four (4) hours or longer shall result in a minimum deposit of two hundred fifty dollars ($250.00) and a minimum bond of three thousand dollars ($3,000.00). The individual permit bond requirement may be waived for applicants having on file with the City an unexpired annual bond of ten thousand dollars ($10,000.00) for work requiring right-of-way permits in University City, with good and sufficient sureties payable to the City. If a right-of-way user fails to complete the work in a safe, timely, and competent manner or if the completed restorative work fails without remediation (as determined by the Director of Public Works and Parks) within the time period for the bond, 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 right-of-way user and the cost of completing work in or restoring the right-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. Right-of-way users with twenty-five million dollars ($25,000,000.00) in net assets and who do not have a history of permitting non-compliance within the City as defined by the Director of Public Works and Parks shall not be required to provide construction performance bonds or liability insurance coverage. 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 right-of-way of a right-of-way 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 right-of-way user to provide appropriate bonds to the City for any other activities or operations.

[Ord. No. 7093, 1-14-2019]

I. Issuance Of Permit. If the Director of Public Works and Parks determines that the applicant has satisfied all requirements, the Director of Public Works and Parks shall issue a right-of-way permit. The Director of Public Works and Parks may impose conditions upon the issuance of a right-of-way permit and the performance of the permittee in order to protect the public health, safety and welfare; to ensure the structural integrity of the right-of-way; to protect the property and safety of other users of the right-of-way; and to minimize the disruption and inconvenience to the public. A right-of-way permit shall have an effective date and an expiration date. Establishment of the expiration date shall be in the discretion of the Director of Public Works and Parks, which discretion shall be reasonably exercised to achieve the City's policy of minimizing disruption of the public right-of-way. No permittee may excavate the right-of-way beyond the date or dates specified in the right-of-way permit unless the permittee makes a request for an extension of the right-of-way permit before the expiration of the initial permit and a new right-of-way permit or permit extension is granted. Right-of-way permits issued shall be conspicuously displayed by the permittee at all times at the indicated work site and shall be available for inspection by the Director of Public Works and Parks, other City employees and the public. Installation and co-location of a small wireless facility shall be completed within one (1) year of issuance of the right-of-way permit or the right-of-way permit shall become null and void and shall no longer authorize installation or co-location of the small wireless facility.

[Ord. No. 7093, 1-14-2019]

J. Permitted Work Hours. The permittee shall comply with all the rules and regulations set forth by the Director of Public Works and Parks. Work is permitted Monday through Friday from 7:00 A.M. until 8:00 P.M., unless permission is granted by the Director of Public Works and Parks for other work hours.

K. Right-Of-Way Repair And Restoration. All earth, materials, sidewalks, paving, crossing, utilities, public improvements or improvements of any kind removed or damaged by the permittee shall be fully repaired or replaced promptly by the right-of-way user at its sole expense and to the satisfaction of the Director of Public Works and Parks. If the permittee fails to restore the right-of-way in the manner and to the condition required by the Director of Public Works and Parks, or fails to satisfactorily and timely complete all restoration, the City may complete the work at the expense of the permittee, and the permittee and its surety shall be liable to the City for any and all cost incurred by the City by reason of such completion. Every right-of-way user to whom a right-of-way permit has been granted shall guarantee for a period of four (4) years the restoration of the right-of-way in the area where such right-of-way user conducted excavation and performed the restoration. In the event the restoration is not completed within the time established by the Director of Public Works and Parks, the permittee shall pay to the City the sum of one hundred dollars ($100.00) per day as liquidated damages, and not as a penalty, to be deducted from the deposit of the permittee, if sufficient.

L. Stop Work Orders. Any excavation, backfilling, repair and restoration, and all other work performed in the right-of-way shall be done in conformance with the City's rules and standards as promulgated by the Director of Public Works and Parks. The Director of Public Works and Parks may issue a citation to the permittee or right-of-way user for any work which does not conform to the applicable standards, conditions, code or terms of the permit. The Director of Public Works and Parks may choose to inspect the ongoing permitted work in the right-of-way at any time to ensure that all requirements of the approved permit are being met by the permittee. Any right-of-way user who is found to be working in the public right-of-way without a permit or contrary to the permit requirements will be directed to stop work until a permit is issued and properly posted at the work site, or until the permit requirements are met to the satisfaction of the Director of Public Works and Parks. Any permittee found to be working without providing for required safety and traffic control will be directed to stop work until the appropriate measures are implemented in accordance with the current edition of the Manual on Uniform Traffic Control Devices. The Director of Public Works and Parks may order the immediate cessation of any work which poses a threat to the life, health, safety or well-being of the public.

M. Denial, Revocation And Appeal Of Permit.

1. Permit denial. The Director of Public Works and Parks may deny a permit to protect the public health, safety and welfare; to prevent interference with the safety and convenience of ordinary travel over the right-of-way; or when necessary, to protect the right-of-way and its users. Except in the case of an emergency, the Director of Public Works and Parks may automatically deny a permit for an applicant in the following events: facilities work is sought which requires excavation of any portion of the paved public right-of-way which was constructed or reconstructed in the preceding five (5) years, or has a Pavement Surface Evaluation and Rating (PASER) system surface rating of nine (9) or above, as determined by the Director of Public Works and Parks; the applicant, contractor or facilities owner owes undisputed past-due fees from prior permits, or is in violation of the provisions of this Section; the applicant, contractor or facilities owner has failed to return the public right-of-way to its previous and acceptable condition under previous permits; the facilities work will cause undue disruption to existing or planned utilities, transportation, public or City use; or failure to pay for damages caused to any City facilities from prior facilities work by the applicant or facilities owner. The Director of Public Works and Parks, at his or her discretion, may consider one (1) or more of the following factors in denial of the permit: the extent to which the right-of-way space where the permit is sought is available; the competing demands for the particular space in the right-of-way; the availability of other locations in the affected right-of-way or in other rights-of-way for the facilities of the applicant; the applicability of any ordinance or other regulations that affect location of facilities in the right-of-way; the degree of compliance of the applicant with the terms and conditions of any right-of-way use agreement with the City, this Section and other applicable ordinances and regulations; the degree of disruption to surrounding communities and businesses that will result from the use of that part of the right-of-way; the condition and age of the right-of-way, and whether the right-of-way was constructed or reconstructed within the preceding five (5) years; the balancing of the costs of disruption to the public and damage to the right-of-way, against the benefits to that part of the public served by the construction in the right-of-way; whether the applicant has failed within the last three (3) years to comply with, or is presently not in full compliance with, the requirements of this Section; whether the applicant owes monies to the City; whether the issuance of a right-of-way permit for the particular dates and/or time requested would cause a conflict or interfere with an exhibition, celebration, festival, or any other event. In exercising this discretion, the Director of Public Works and Parks shall be guided by the safety and convenience of anticipated travel of the public over the right-of-way. Notwithstanding the above provisions, the Director of Public Works and Parks may, in his or her discretion, issue a right-of-way permit in any case where the permit is necessary to prevent substantial economic hardship to a user of the applicant's service, and allow such user to materially improve the service provided by the applicant.

2. Permit revocation. The Director of Public Works and Parks may revoke any right-of-way permit, without refund of the permit fee, in the event of a substantial breach of the terms and conditions of any law or the right-of-way permit. A substantial breach shall include, but not be limited to, the following: the violation of any material provision of the right-of-way permit; an evasion or attempt to evade any material provision of the right-of-way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its residents; any material misrepresentation of any fact in the permit application; the failure to maintain the required bond or insurance; the failure to complete the work in a timely manner; the failure to correct a condition indicated on an order issued by the Director of Public Works and Parks; repeated traffic control violations; or failure to repair facilities damaged in the right-of-way to the satisfaction of the Director of Public Works and Parks. If a right-of-way permit is revoked, the permittee shall reimburse the City for the City's reasonable costs, including administrative costs, restoration costs, the costs of collection and reasonable attorneys' fees incurred in connection with such revocation.

3. Permit appeal. Whenever a permittee shall deem itself aggrieved by any decision or action taken by the Director of Public Works and Parks, the permittee may file an appeal to the City Manager within ten (10) calendar days of the date of notice of such decision or action. The permittee shall be afforded a hearing on the matter before the City Manager within thirty (30) days of filing the appeal. The City Manager's decision shall be final.

4. The violation of any provision of this Section is hereby deemed to be grounds for revocation of any City-issued permits and denial of future permits by the City.

N. State Public Right-Of-Way Law. If any provision of this Section or a rule or regulation adopted pursuant to this Section conflicts with State law on the public right-of-way, Sections 67.1830 to 67.1846, RSMo., such State law shall prevail to the extent required by law, and the City's authority shall be limited to that permitted thereunder.

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

[Ord. No. 7068, 12-11-2017; Ord. No. 7093, 1-14-2019]

1. Exclusion Of Certain Locations/Facilities. To the extent permitted by applicable law, the Director of Public Works and Parks may designate certain locations or facilities in the right-of-way to be excluded from use by the right-of-way user, including, but not limited to, ornamental or similar specially designed street lights or other facilities or locations which, in the reasonable judgment of the Director of Public Works and Parks, cannot safely bear the weight or wind loading thereof, or any other facility or location that in the reasonable judgment of the Director of Public Works and Parks would be rendered unsafe or unstable by the installation. The Director of Public Works and Parks may further exclude certain other facilities that have been designated or planned for other use or are not otherwise available for use by the right-of-way 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 right-of-way user, the City will cooperate in good faith with the right-of-way 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 right-of-way user.

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

a. Review Required. The design, location, and nature of all facilities shall be subject to the review and approval of the Director of Public Works and Parks to the extent permitted by law. 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 right-of-way shall be applicable to all facilities. The Director of Public Works and Parks may establish regulations or policies as may be deemed necessary or appropriate to effect this provision.

b. 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 facilities above the surface of the right-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 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 City Council 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 right-of-way exists, the right-of-way 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 right-of-way 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 right-of-way. 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:

(1) When and where nearby utility poles exist that are spaced closer than two hundred (200) feet apart;

(2) When conditions are such that no existing structure is available for placement of facilities; and

(3) The utility pole can be placed to be minimally visually intrusive.

3. Wireless Antennas And Facilities. Pursuant to City authority, including Section 67.1830(6)(f), RSMo., and the Uniform Small Wireless Facility Deployment Act (§ 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 the additional requirements set forth in this Subsection for wireless antennas and facilities.

a. General Conditions. Any wireless facility in the right-of-way shall be subject to conditions relating to the location (including prohibited or limited locations), design, height, appearance, safety, radio-frequency, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the Director of Public Works and Parks 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 right-of-way as set forth in this Subsection, including a right-of-way 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 Chapter 400.

b. Specific Conditions.

(1) Small Wireless Facilities. Any small wireless facility meeting the requirements for a small wireless facility as defined by Section 400.1382 and as provided in Section 400.1390 of the Zoning Code shall be authorized to be located in the right-of-way with approval of the Director of Public Works and Parks subject to the following additional requirements:

(a) If proposing to install a new utility pole, compliance with the spacing requirements in Subsection (O)(2)(b) of this Section;

(b) Compliance with Section 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 400.1382 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 small wireless facility" as defined by Section 400.1382, and as provided in Section 400.1392 of the Zoning Code, may be authorized to be located in the right-of-way with approval of the Director of Public Works and Parks 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 400.1382 of the Zoning Code;

(b) Only one (1) fast-track small wireless facility shall be permitted per structure or utility pole in the right-of-way;

(c) No ground equipment shall be authorized;

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

(e) Compliance with the spacing requirements in Subsection (O)(2)(b) of this Section 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 a utility pole or existing structure as defined in Section 400.1382, but not meeting the requirements of Subsection (O)(3)(b)(1), Small Wireless Facilities or Subsection (O)(3)(b)(2), Fast-Track Small Wireless Co-location above, may be approved, subject to conditions as may be imposed consistent with the purposes of this Section, only upon approval by the Council upon a determination by the Council 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, right-of-way, and other applicable requirements.

c. Wireless Facility Compensation. 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. Nothing herein shall limit, waive, or otherwise affect the applicability of linear foot fees as may be required by a grandfathered political subdivision pursuant to Section 67.1846, RSMo.

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

(1) Installation of any facilities in the right-of-way as set forth in this Section;

(2) The requirements of this Subsection; and also include;

(3) Requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (§ 67.5090 et. seq., RSMo.) or other applicable law, including written proof of consent of the landowner (copy of the right-of-way agreement) and of the structure owner (document authorizing use of the structure).

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

[Ord. No. 7068, 12-11-2017; Ord. No. 7093, 1-14-2019]

Q. No Interference. All right-of-way users shall construct and maintain its facilities so as not to interfere with other users of the right-of-way. The right-of-way user shall not interfere with or alter the facilities of the City or other right-of-way user without their consent and shall be solely responsible for such. Except as may otherwise be provided or as determined by the Director of Public Works and Parks, the right-of-way 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 right-of-way user or its subcontractors shall be performed in accordance with industry standards. The right-of-way user shall, in the performance of any excavation, facilities maintenance, or other right-of-way work, limit such work to that necessary for efficient operation and so as not to interfere with other users of the right-of-way. All facilities and other structures shall be installed and located to cause minimum interference with the rights and convenience of property owners, right-of-way 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 of Public Works and Parks may require as alternatives to the proposed work either less-disruptive methods or different locations for facilities consistent with applicable law.

[Ord. No. 7093, 1-14-2019]

R. Subordinate Uses. The right-of-way user's use shall be in all situations subordinate and subject to public municipal use.

[Ord. No. 7093, 1-14-2019]

S. Sight Triangle Maintained. Right-of-way 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 right-of-way lines and a line connecting them at points thirty (30) feet from their point of intersection or at equivalent points on a private street.

[Ord. No. 7093, 1-14-2019]

T. Relocation.

[Ord. No. 7093, 1-14-2019]

1. City-Required Relocation. The right-of-way user shall promptly remove, relocate, or adjust any facilities located in the right-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 right-of-way user. Such removal, relocation, or adjustment shall be performed by the right-of-way user within the time frames established by the City and at the right-of-way 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 right-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 right-of-way as soon as practicable.

3. Third-Party Relocation. A person having facilities in the right-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 right-of-way taking such action may require such payment in advance.

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

5. Right-Of-Way User Responsible For Damage. Any damages suffered by the City, its agents or its contractors to the extent caused by the right-of-way 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 right-of-way user. Where the right-of-way user shall fail to relocate facilities as required by the City, the City may, but shall not be required to, upon notice to the right-of-way user remove the obstructing facilities with or without further delay, and the right-of-way user shall bear all responsibility and liability for the consequences therefrom, and the City shall bear no responsibility to the right-of-way user or others for damage resulting from such removal.

U. 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 right-of-way shall be a vested interest or property right.

[Ord. No. 7093, 1-14-2019]

V. Abandoned Facilities; Removal. A person owning abandoned facilities in the right-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 of Public Works and Parks may upon written application and written approval allow underground facilities or portions thereof to remain in place if the Director of Public Works and Parks 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.

[Ord. No. 7093, 1-14-2019]

W. Nuisance. Facilities abandoned or otherwise left unused in violation of this Section 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 useable function; or

3. Requiring the removal of the facility by the right-of-way user.

[Ord. No. 7093, 1-14-2019]