[Ord. No. 1090, § 2 (Exh. A), 2-5-2019[1]]
(a) 
Administration. The City Administrator shall be the principal City official responsible for administration of this rights-of-way management code and the permitting processes hereunder. The City Administrator may delegate any and all duties hereunder as may be appropriate.
(b) 
Applicability. Except as provided for herein and where limited by applicable law, this chapter shall apply to all excavations and use, construction, operation, and maintenance of facilities or structures, in the ROW of the City. No person shall commence or continue with the operation of any facilities or structures in the ROW except as provided and in compliance with this chapter. Because numerous types of users and uses of the ROW may be subject to various or changing regulatory schemes under federal or state law, any such limitation or qualification that may be applicable to less than all users and uses of the ROW are not duplicated herein, but are nevertheless incorporated herein, whenever application is so required by law, including but not limited to applicable provisions of RSMo ch. 67 and other applicable state and federal law.
(c) 
Preemption. No provision of this chapter shall apply to any circumstance in which such application shall be unlawful under superseding federal or state law and furthermore, if any section, subsection, sentence, clause, phrase, or portion of this chapter is now or in the future superseded or preempted by state or federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and applied as required by law.
[1]
Editor's Note: This ordinance also repealed former Art. III, which pertained to similar subject matter and derived from Ord. No. 808, adopted 1-18-2005, as amended.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
For purposes of this chapter, the following terms, phrases, words, and their derivatives shall have the meanings set forth in this section, unless the context clearly indicates that another meaning is intended.
ABANDONED FACILITIES
Any equipment materials, apparatuses, devices, or facilities that are: (1) declared abandoned by the owner of such equipment or facilities, (2) no longer in active use for a period of six months or more, and the owner of such equipment or facilities fails to respond within 30 days to a written notice sent by the City, (3) the owner allows a franchise, agreement or license to expire and fails to cure within 30 days after notice, or (4) as otherwise may be defined by applicable law.
ANTENNA
Any device that transmits and/or receives electromagnetic wireless radio waves or signals for voice, data or video communications purposes including, but not limited to, television, text, AM/FM radio, microwave, cellular telephone, communications service, or otherwise.
APPLICANT
Any person who has applied for a ROW use agreement, franchise, license, ROW permit, or any permit or other authorization to install, maintain, repair or otherwise physically access facilities in the ROW.
CITY FACILITIES
Any facilities located in the ROW and owned by the City.
COMMUNICATIONS SERVICE
The transmission via facilities, in whole or in part, of any writings, signs, signals, pictures, sounds or other forms of intelligence through wire, wireless, or other means, including, but not limited to, any telecommunications service, enhanced service, information service, or internet service, as such terms are now, or may in the future be, defined under applicable law, and including all instrumentalities, facilities, apparatus (communications facilities), and services (among other things, the receipt, forwarding, and delivery of telecommunications) incidental to such transmission or designed to directly or indirectly facilitate or accept such transmission and shall also include "video services" as defined in RSMo 67.2677. The term "communications service" does not include the rental of conduit or physical facilities.
DIRECTOR
The City Administrator or his/her designees.
EXCAVATION PERMIT
A permit authorizing excavation for the construction or installation of facilities in the City's rights-of-way.
EXCAVATION, EXCAVATING, or EXCAVATE
Any act by which earth, asphalt, concrete, sand, gravel, rock or any other material in or on the ground is cut into, dug, uncovered, removed, or otherwise displaced, by means of any tools, equipment or explosives, except as excluded by applicable law.
EXCESS CAPACITY
The remaining volume or capacity in any existing or future duct, conduit, manhole, handhold or other facility, including dark fiber, in the ROW that is used, or authorized by the ROW user to be used, by others.
FACILITIES MAINTENANCE or MAINTENANCE
The construction, installation, repair, upgrade, or other physical access to the facility in the ROW that does not involve excavation.
FACILITIES MAINTENANCE PERMIT
A permit issued by the City for the ROW user to provide maintenance to its facilities or otherwise perform work in the ROW that does not involve excavation but requires physical access to the facilities in the ROW.
FACILITIES or FACILITY
Any equipment, installation, or structure located in the rights-of-way, including without limitation, cables, wires, lines, poles, towers, antenna, conduit facilities, vaults, pedestals, transmitters, meters, fiber, foundations, and any other equipment, infrastructure, structures or obstruction. Facilities shall not include mailboxes, lawful vehicular parking or use or lawful minor incidental uses such as driveway aprons, private utility connections or other incidental facilities which may be permitted by license issued by the director as provided herein.
FRANCHISE
A binding and accepted ordinance for certain ROW users to occupy the rights-of-way for the purpose of providing, transporting, or distributing electricity, gas, water, steam, lighting, energy, or sewer service to any person or area in the City's limits and boundaries.
LICENSE
The executed agreement between the City and a person to use and occupy the rights-of-way for the purpose of installing incidental temporary facilities within the rights-of-way or incidental uses such as ingress and egress facilities, lateral utility lines, or driveway aprons.
PERMIT
An excavation permit or a facilities maintenance permit.
PERSON
Any corporation, partnership, proprietorship, individual, organization, governmental entity or any natural person.
RESELLER SERVICE PROVIDER
A person does not have its own facilities in the rights-of-way, but instead uses the rights-of-way by interconnecting with or using the network elements of another ROW user utilizing the rights-of-way, and/or by leasing excess capacity from an entity having facilities in the rights-of-way with no right to physically access the facilities or ROW.
RIGHTS-OF-WAY or ROW
The area on, below, or above a public roadway, highway, street or alleyway in which the City has an ownership interest or right of management, and including such adjacent areas within such public ways within such City control, except as may be limited by law.
RIGHTS-OF-WAY USE AGREEMENT or ROW USE AGREEMENT
A document granting consent by the City to use the ROW for the purpose of providing communications service or for such other use for which a franchise or license is not applicable and obtained as provided for herein.
ROW USER
All persons and entities, whether a PSC registered utility or otherwise, owning, controlling, leasing, maintaining, using or installing facilities in the rights-of-way of the City, not otherwise expressly exempted. To the extent permitted by law, ROW user shall not include the City, or reseller service provider.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
ROW use agreement, license, or franchise required. Except where otherwise authorized or required by applicable law, no person may own, control, lease, use, or install facilities or other structures in the rights-of-way without a franchise, license, or ROW use agreement all subject to the requirements of this chapter and issued by the City as provided herein and as follows:
(1) 
Franchise. A franchise shall be obtained in conformance with all applicable franchise procedures for any ROW user seeking to use the rights-of-way for the purpose of providing, transporting or distributing electricity, gas, water, steam, lighting, energy, or sewer service to any person or area in the City's limits and boundaries.
(2) 
ROW use agreement. A ROW use agreement shall be required for all other ROW users, except as provided herein or otherwise required by law. A ROW use agreement shall conform to all applicable laws and requirements, including as provided herein, but shall not be subject to procedures applicable to franchises.
(3) 
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 rights-of-way use agreement pursuant to a license issued by the director. The director shall have discretion to establish such application, requirements, and conditions applicable to such uses consistent with the purposes of this chapter or as otherwise established by law. The applicant shall be required to pay an application fee and an inspection fee as established by the City. Any person granted a license hereunder shall be subject to the applicable requirements of this chapter. Unless otherwise stated in the license, a license shall be for an indefinite term and shall be revocable at any time on written notice in the public interest by the City.
(b) 
Grant and nature of approval; terms and compensation. The authority granted by the City in any ROW use agreement, license or franchise shall be for non-exclusive use of the rights-of-way. Such grant does not in any way limit the continuing authority of the City through the proper exercise of its statutory powers to adopt and enforce ordinances necessary to provide for the health, safety, and welfare of the public. The City specifically reserves the right to grant, at any time, such additional agreements or other rights to use the rights-of-way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable laws. The granting of any ROW use agreement, license or franchise by the City shall not be deemed to create any property interest of any kind in favor of the ROW user nor shall it create any relationship of agency, partnership, joint venture, or employment between the parties. Licenses may be approved by the director on a non-discriminatory basis provided that the person is in compliance with all applicable requirements. Each franchise, license, and ROW use agreement shall include terms of use and be deemed to incorporate the terms of this chapter and other applicable laws of the City, except as may be expressly stated in such use agreement, license or franchise. The City may require compensation for use of the ROW or other public property as may be reasonably required by the City Council, subject to applicable law.
(c) 
Condition precedent to permit. Unless otherwise required by applicable law, no permit may be issued unless or until such person has a valid franchise, license or rights-of-way use agreement with the City that authorizes that person's use of the rights-of-way. Unless prohibited by applicable law, in addition to any other reason provided herein, the director may deny a ROW permit to any person that does not have a valid franchise, ROW use agreement, or license with the City.
(d) 
Transferability. Except as provided in this chapter or as otherwise required by law, no franchise, ROW use agreement, or permit may be transferred or assigned without the written application to and consent of the City based on the requirements and policies of this chapter. The City shall not unreasonably withhold its consent as provided herein, but any costs incurred shall be paid by the ROW user to the extent not prohibited by applicable law. In the case of the City granting consent to transfer, the transferee shall be subject to the terms and conditions of this chapter.
(e) 
Use of City or third-party facilities. No ROW use agreement, franchise, or license shall grant the right to use facilities owned or controlled by the City or a third party, and no such use shall occur, nor shall any franchise, ROW use agreement or license excuse such person from first obtaining a pole attachment agreement or other express consent for such right or use before locating on the facilities controlled or owned by the City or a third party.
(f) 
Lease required for public lands. Unless otherwise provided, use or installation of any facilities in non-rights-of-way public property of the City shall be permitted only if a lease agreement or other separate written approval has been negotiated and approved by the City with such reasonable terms as the City may require.
(g) 
ROW user fees.
(1) 
User fee. Unless otherwise established by the City Council or applicable law, each ROW user shall pay to the City as compensation for use of the public way, a user fee as follows:
a. 
Linear foot fee: A monthly payment of $0.165 per linear foot of facilities located in the rights-of-way, but not less than $1,000 per month, for an annual amount of $1.98 per linear foot of facilities in the rights-of-way; and
b. 
"Fast-track" linear foot fee: A monthly payment of $0.0825 per linear foot of facilities located in the rights-of-way, but not less than $500 per month, for an annual amount of $0.99 per linear foot of facilities in the rights-of-way. The following "fast-track" linear foot fee shall only be applicable to facilities that are located and operating between at least two separate "fast-track" small wireless facilities and shall otherwise be inapplicable to other linear foot facilities in the rights-of-way. If ROW user has more than 1/2 of all its facilities located and operating between "fast-track" small wireless facilities, the "fast-track" linear foot fee minimum monthly amount of $500 per month shall apply; otherwise the minimum $1,000 per month per linear foot of facilities in the rights-of-way shall apply;
Provided that all ROW users shall be entitled to a credit against the user fee due hereunder equal to the payment(s) from such ROW user in accordance with RSMo. 67.1846; 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.
(2) 
Bundled services. The ROW user expressly acknowledges and agrees that to the extent it markets bundled services, including a 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 ROW 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 ROW 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.
(3) 
Timing of payment of user fees. Unless otherwise agreed to in writing, all ROW user fees shall be due and payable every month of each calendar year within 30 days after the end of each such month. A credit of the applicable gross receipts tax for that same period may be taken against the linear foot payment for that month.
(4) 
Interest of late payments and underpayments. If any ROW 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 a rate of 1.5% per month of the total amount past due or at such other lower rate as may be required by applicable law.
(5) 
Fee statement; retroactive adjustments. Each ROW user fee payment shall be accompanied by a statement, certified as true, showing the manner in which the ROW user fee was calculated including the total number of feet of ROW occupied by the ROW user's facilities, the per foot linear foot rate applied, including any "fast-track" linear 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, the 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 to certification of facilities reported, provided that a corrected payment or report may be filed within the time of the original time for payment.
(6) 
No accord and satisfaction. No acceptance by the City of any user 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.
(7) 
Maintain records. ROW users shall at all times maintain complete and accurate books of account and records of the business, ownership, and operations of the ROW user with respect to the facilities in a manner that allows the City to determine whether the ROW 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 a manner, the ROW user shall correct the manner in which the books and/or records are maintained so that the ROW 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 accounted principles shall be deemed to be acceptable under this section. Such books and records shall be maintained for a period of at least three years.
(8) 
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 calendar days' notice, all documents, records, or other information that pertains to the facilities within the ROW and/or ROW user's user fee obligations. In addition to access to the records of the ROW user for audits, upon request, the ROW user shall provide reasonable access to records necessary to verify compliance with the terms of this section.
(9) 
Fees and compensation not a tax. The fees and costs provided for in this section, and any compensation charged and paid for use of the ROW 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.
(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 work performed prior to obtaining the location of all facilities that have been properly identified prior to such work or around. The ROW user shall not make or attempt to make repairs, relocation or replacement of damaged or disturbed facilities without the approval of the owner of the facilities.
(i) 
Forfeiture of agreement and privilege. In case of failure on the part of the ROW user, including its successors and assigns, to comply with any of the provisions of this chapter or a ROW use agreement, franchise, or license, or if the ROW user, its successors and assigns should do or cause to be done any act or thing prohibited by or in violation of this chapter or the terms of the authorization of such use, or otherwise loses authority to provide its service in the City, the ROW user, its successors and assigns shall forfeit all rights and privileges permitted by any ROW use agreement, franchise, or license, and all rights hereunder shall cease, terminate and become null and void, provided that said forfeiture shall not take effect until the City shall carry out the following proceedings: before the City declares the forfeiture or revocation of a rights-of-way use agreement, franchise, or license, it shall first serve a written notice upon the person setting forth in detail the neglect or failure complained of, and the person shall have 30 days thereafter, or such other reasonable period established by the director, in which to cure the default by complying with the conditions of such ROW use agreement, franchise, or license and fully remedying any default or violation. If at the end of such period the City determines that the conditions have not been complied with and that the person did not reasonably and in the public interest require more than the establish time to cure the default, the City shall take action by an affirmative vote of the City Council present at the meeting and voting to terminate the ROW use agreement, franchise, or license, setting out the grounds upon which said authorization is to be forfeited or revoked. Nothing herein shall prevent the City from invoking any other remedy or from declaring immediate forfeiture where the default is incapable of being cured by the ROW user, including where such defaults or violations have repeatedly occurred.
(j) 
No waiver. No action or omission of the City shall operate as a future waiver of any rights of the City under this chapter. Except where rights are expressly granted or waived by a ROW permit, ROW use agreement, franchise, or license they are reserved, whether or not expressly enumerated.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
Application Form. An application for a franchise or ROW use agreement shall be provided to the City on City forms and shall include all such information as is required by this chapter and as determined necessary by the director. The ROW user shall be responsible for accurately maintaining the information in the application during the term of any franchise or ROW use agreement and shall be responsible for all costs incurred by the City due to the failure to provide or maintain as accurate any application information required herein.
(b) 
Application deposit fee. An application deposit of $500, or such other amount determined to be required, shall be submitted with the application, which shall be utilized to at least partly offset the City's costs in reviewing and issuing an agreement, consistent with applicable law provided that no costs shall be included if such inclusion is prohibited by applicable law as to that person; any amount not used by the City for its actual lawfully reimbursable costs will be refunded upon request after execution of a ROW use agreement or franchise. If applicable, the applicant shall be obligated to reimburse the City for its reasonable expenses associated with the review, negotiation, and adoption of an appropriate ROW use agreement or franchise that may exceed the application deposit.
(c) 
Standard for approval or renewal. In reviewing an application for a new or renewal ROW use agreement or franchise, the City may consider prior conduct of the person in performance of its obligations or compliance with the City's ordinances in the past, or the existence of any outstanding violations or deficiencies. The City may deny or condition any ROW use agreement or franchise where the proposed use would interfere with the public use of the rights-of-way or otherwise conflict with the legitimate public interests of the City to fulfill the requirements and objectives of this chapter or as otherwise provided by law. All ROW use agreements or franchises by ordinance or resolution of the City Council and applications shall be decided on a non-discriminatory basis and shall be approved, conditioned or denied based on compliance with all applicable requirements herein, and conformance with applicable law and the public interest.
(d) 
Approval process. After submission by the applicant of a duly executed and completed application, deposit fee, and executed franchise or rights-of-way use agreement as may be provided by the director or as modified by the director in review of the specific circumstances of the application, all in conformity with the requirements of this chapter and all applicable laws, the director shall submit such agreement to the City Council for approval. Upon determining compliance with this chapter, the City Council may authorize execution of the franchise or ROW use agreement (or a modified agreement otherwise acceptable to the City consistent with the purposes of this chapter) and such executed franchise or ROW use agreement shall constitute consent to use the rights-of-way; provided that nothing herein shall preclude the rejection or modification of any executed franchise or ROW use agreement submitted to the City to the extent applicable law does not prohibit such rejection or modification, including where necessary to reasonably and in a uniform or non-discriminatory manner reflect the distinct engineering, construction, operation, maintenance, public work, or safety requirements applicable to the person or use.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
ROW user authority; obligations. A ROW user is authorized, subject to other applicable requirements, to sell or transfer use of excess capacity to reseller service providers or other entities, provided that such entity either: (1) has no right to and does not physically access the facilities while in the ROW, or (2) has a separate franchise or ROW use agreement or other written agreement or consent authorizing the same with the City. In the event of such sale or transfer to a reseller service provider, the ROW user shall notify the City of the same prior to such action so that the City can review compliance regarding doing business in the City. This notice shall not relieve the reseller service provider from its own obligation to register, pay taxes, and obtain any necessary authorization from the City.
(b) 
Registration of reseller service providers and exempt entities.
(1) 
Reseller service provider registration. Prior to providing service (including sale or transfer of product or service) within the City or acquiring or using excess capacity through facilities in the City, reseller service providers shall register with the City the intent to do so and shall include: (1) identity of the reseller service provider and certification of the applicable regulatory approval necessary to undertake such service, (2) the name of the provider(s) owning the facilities within the City through which the service shall be transmitted; (3) name, address, telephone number, and email address of an officer, agent or employee responsible for the accuracy of the registration, and contact information for a person to speak on behalf of the reseller service provider, if different; and (4) such other information as requested by the director. It shall be unlawful for any reseller service provider to have its own facilities in the rights-of-way, have the right to physically access the facilities in the rights-of-way, or to transmit service for commercial purposes through any facility owned by a person without a valid franchise, rights-of-way use agreement, or other City authorization for such facilities. It shall be the duty of a reseller service provider to report any changes to its registration information within 30 days of such change.
(2) 
Exempt entity registration. Prior to providing service within the City, transmitting communications through facilities in the City, or constructing in the rights-of-way, entities not required to obtain a franchise, license, or rights-of-way use agreement due to superseding federal or state law, shall nevertheless be required to register with the City by providing the City the information required by the rights-of-way application in Section 21-54. It shall be the duty of such exempt entity to report any changes to such registration information within 30 days of such change.
(c) 
Reseller service provider obligations. Any reseller service provider that buys or leases excess capacity or other services for resale from a ROW user, shall be subject to the terms and conditions of this chapter, including the requirement to first register with the City and obtain any necessary permit, license, certification, grant, registration, franchise agreement or any other authorization required by any appropriate governmental entity, including, but not limited to, the City, public service commission or the federal communications commission. If a person through such lease or purchase owns facilities in the rights-of-way or has the right to physically access or maintain any facilities in the rights-of-way, then such person no longer meets the definition of a reseller service provider and is required to first obtain a franchise, license, or rights-of-way use agreement as required herein.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
Excavation permit required. Except as otherwise provided herein, no ROW user or other person shall perform excavation work in the ROW without an excavation permit. Any person desiring to excavate in the ROW shall first apply for an excavation permit, on an application form provided by the City, and submit the application fee and pay all applicable fees to obtain an excavation permit, in addition to any other building permit, license, easement, or other authorization required by law, unless such excavation must be performed on an emergency basis as provided herein. The cost of said permit shall be set out by the director. The director is authorized to draft an application form consistent with the requirements of this chapter. An excavation permit should be obtained for each project unless otherwise provided for in this chapter. A separate special permit or lease shall be required for excavation in or use of any real property interest of the City that is not ROW. It shall be unlawful for any person to perform excavation work within the City at any time other than from 6:00 a.m. to 9:00 p.m. Monday through Friday without prior approval from the City, except in the case of an emergency. No work shall be performed during City holidays, except in the case of an emergency. All excavation permits shall expire after 60 days from the date of issuance, unless otherwise specified in the excavation permit. An applicant whose excavation permit application has been withdrawn, abandoned or denied for failure to comply with this chapter shall not be refunded the application fee.
(b) 
Local representative designation. Each ROW user shall designate a local person familiar with the facilities that shall act as a local agent for the ROW user and shall be responsible for satisfying information requirements of this chapter. The ROW user shall present to the City the agent's name, address, telephone number, and email address. The agent shall be the person to whom relocation notices and other such notices shall be sent, and with whom rests the responsibility to facilitate all necessary communications. The ROW user shall be responsible for all costs incurred by the City due to the failure to provide such information to the City.
(c) 
Facilities maintenance permit; exemptions. No person shall perform facilities maintenance at a specified location in the rights-of-way without first obtaining a facilities maintenance permit from the director, except where such facilities maintenance is expressly authorized by an existing valid excavation permit for the applicable facilities maintenance location or is exempt herein. In addition to the applicable conditions and obligations set forth in this chapter, conditions of a facilities maintenance permit shall be as established in such permit and shall include requirements of notice to and approval by the City whenever traffic lanes are to be obstructed, manhole covers or safety barriers removed or altered, temporary or other barricades installed, and other events set forth in the facilities maintenance permit. All facilities maintenance permits shall expire after 60 days from the date of issuance, unless otherwise specified in such permit. A facilities maintenance permit shall not be required for:
(1) 
ROW users performing routine maintenance which does not require excavation, does not disrupt traffic or pedestrians, and requires no more than four hours to complete, provided that at minimum two hours' notice is provided to the City during normal business hours;
(2) 
Emergency situations as more fully described in Subsection (e) below; or
(3) 
Contractors working on the construction or reconstruction of public improvements and which are operating pursuant to a contract with the City for such construction; or
(4) 
Routine maintenance on previously approved small wireless facilities, replacement of small wireless facilities that are the same or smaller in size, weight, and height, or installation placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between utility poles in compliance with applicable safety and building codes, when such work will not involve excavation, affect traffic patterns, obstruct traffic in the ROW, or materially impede the use of a sidewalk, and provided the ROW user submits as-builts of the new small wireless facilities or micro wireless facilities so the City may maintain an accurate inventory of facilities installed in the ROW.
(d) 
Bulk permits. The director shall have the authority to establish procedures for bulk processing of applications and periodic payment of fees.
(e) 
Emergencies. In the event of an emergency requiring immediate attention to remedy defects, and in order to avoid loss of damage to person or property, it shall be sufficient that the person conducting the work shall as soon as practicable notify the City of the location of the work and shall apply for the required ROW permit as soon as practicable following the commencement of the work, not to exceed the third business day thereafter, or as otherwise directed by the City. In the event the City becomes aware of an emergency requiring facilities work the City shall attempt to contact a representative of each ROW user affected, or potentially affected, by the emergency work. If no response is received by a particular ROW user to whom contact is attempted, the director may take whatever action he/she deems necessary to respond to the emergency, the cost of which shall be borne by the person whose action or inaction occasioned the emergency or by the ROW user if the emergency was occasioned by an act of nature.
(f) 
ROW permit specific conditions. The director may also impose reasonable conditions upon the issuance of a permit and the performance of work in order to protect the public health, safety, and welfare, to ensure the structural integrity of the rights-of-way, to protect the property and safety of other users of the rights-of-way, and to minimize the disruption and inconvenience to the traveling public. Such reasonable conditions may include, but are not limited to:
(1) 
The amount of excavation or facilities maintenance which may occur at one time and the amount of rights-of-way which may be obstructed during construction;
(2) 
The number or size of conduits or other facilities that may be installed by each ROW user based on the reasonable needs to ensure that no one ROW user may unreasonably consume a disproportionate amount of the available rights-of-way to deter competition or deprive the public or others of the reasonable use of the rights-of-way;
(3) 
Posting of an additional or larger performance and maintenance bond for additional facilities, except as otherwise provided in Section 21-62(h) hereof, when the established amount is reasonably determined to be insufficient;
(4) 
The design, location, and nature of all facilities, based on a nondiscriminatory basis in ensuring the safe, efficient, and appropriate use of the ROW consistent with this chapter and applicable law; and
(5) 
Other reasonable conditions regarding the timing, safety precautions, space, or specific implementation of the specific work proposed.
(g) 
Codes incorporated. Every permit issued hereunder shall incorporate the requirements and terms of this chapter, agreements, and all applicable ordinances, to the extent permitted by law. The ROW user shall perform such work in accordance with the issued permit and applicable provisions of this chapter and any subsequent ordinances or regulations that may be adopted by the City regarding excavation or facilities maintenance work. In addition, all ROW users shall be subject to all technical specifications, design criteria, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power relating to permits and fees, sidewalk and pavement cuts, facility location, construction coordination, surface restoration, and other requirements on the use of the rights-of-way. A ROW user shall perform all excavations or facilities maintenance in full compliance with all applicable engineering codes adopted or approved by the City, and in accordance with applicable statutes of the State of Missouri, and the rules and regulations of the public service commission, federal communications commission, and any other local, state or federal agency having jurisdiction over the parties. The ROW user shall comply with the excavation requirements of Missouri One Call established by RSMo 319.010 et seq., as amended. A ROW user shall be responsible for all excavations or facilities maintenance done in the rights-of-way on its behalf, regardless of by whom the excavation or facilities maintenance is done.
(h) 
Tree and landscape protection. Upon 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. In reviewing any permit application, the City may require the applicant to directionally bore around or otherwise avoid disturbance to any tree or landscaping, existing facility, or other protected area in the rights-of-way.
(i) 
Permit displayed. At all times during the work, permits shall be conspicuously displayed at the work site and shall be available for inspection by the director.
(j) 
Modification requiring new permit. If at any time it appears that the duration or scope of the work is or will become materially different from that allowed by the permit, the ROW user shall inform the director. The director may issue a waiver, an extension or revised permit, or require that the ROW user reapply for a permit in accordance with all requirements of this chapter.
(k) 
Joint permit applications. Applicants may apply jointly for permits in the rights-of-way at the same time and place. All joint applicants must jointly execute all required documents and shall be jointly and severally liable for all duties and obligations hereunder. Persons who apply jointly may share in the payment of the application deposit fee. Such persons must agree among themselves as to the portion each shall pay.
(l) 
Notification, joint installation, and collocation. ROW users shall, prior to any excavation or installation in the rights-of-way, provide sufficient notification and joint installation opportunity on a shared-cost basis to potential users of the rights-of-way as may be provided for by separate City policy. Such notification and adopted policies shall be designed to maximize collocation of ROW users, to minimize the disturbance to the rights-of-way, and maximize its useable capacity. ROW users shall identify by mapping, as required by the director, the location and specifications of all conduit available or dedicated for collocation. Any person unreasonably failing to respond to collocation opportunities or otherwise comply with this provision or policies adopted hereunder shall, unless good cause is found by the City, be precluded from use of the rights-of-way for a period of 30 months at such locations that would reasonably have been accommodated by the collocation opportunity that was declined.
(m) 
Subsurface utility engineering survey. Unless determined by the director as unnecessary, prior to the commencement of any construction or alteration of its facilities located in the rights-of-way, the ROW user shall furnish to the director a subsurface utility engineering study on the proposed route of construction, expansion, or alteration, which shall consist of the following tasks:
(1) 
All available plans, plats, and other location data indicating the existence and approximate location of all facilities along the proposed construction route;
(2) 
Completion of a visual survey and written record of the location and dimensions of any aboveground features of any underground facilities along the proposed construction route including, but not limited to, manholes, pedestals, valve boxes, utility boxes, posts, and visible street cut repairs;
(3) 
Plot and incorporate the data obtained from completion of tasks (1) and (2) above onto the provider's proposed facilities route maps, plan sheets, and computer-aided drafting and design (CADD) files; and
(4) 
Provide all such data collected into a CADD file (or other format as may be identified by the director) compatible with that used by the director and deliver a copy to the director.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
A rights-of-way permit fee shall be paid to the City in such amounts as established by the City Council and, unless otherwise permitted by applicable law, shall be based on the actual costs incurred in managing the rights-of-way and calculated as provided for by RSMo. 67.1840 or other applicable law.
(b) 
Unless hereinafter established by the Council or preempted by applicable law, the fees for rights-of-way permits are hereby amended and reestablished as provided by law as follows:
(1) 
Excavations:
a. 
In asphalt, macadam, concrete or other improved surface, a linear foot charge of $100 for the first 15 linear feet, then $3 per linear feet thereafter.
b. 
In unimproved surface (e.g. grass, soil) a linear foot charge of $50 for the first 15 linear feet, then $1 per linear feet thereafter.
(2) 
Driveway/apron installations and construction. See City Code §§ 21-135 — 21-145.
(3) 
Miscellaneous facilities. Other activities or facilities in the ROW shall be permitted subject to a fee based on the estimated actual costs, including hourly time for inspections and other costs reasonably anticipated by the project. A deposit for such fee may be established where actual costs are not reasonably ascertainable at the time of application.
(c) 
In the event the scope of the project is revised during the course of the excavation or work, the City Administrator may recalculate the fee based on the actual size of the excavation or work and may require an additional rights-of-way permit fee.
(d) 
The City Administrator may establish, with the approval of the City Council, a system providing for payment of rights-of-way permit fees by ROW-users in bulk.
(e) 
Nothing herein shall preclude the City from charging any other or additional fee for use of the rights-of-way where such fee is consistent with applicable law.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
The director may deny an application for a permit if:
(1) 
To the extent permitted by law, the person does not have a current franchise, license, or rights-of-way use agreement, or other authorization with the City.
(2) 
The ROW user, or any persons acting on the behalf of the ROW user, fails to provide all the necessary information requested by the City for managing the rights-of-way.
(3) 
The ROW user, or any persons acting on the behalf of the ROW user, including contractors or subcontractors, has a history of noncompliance or permitting noncompliance within the City. For purposes of this section, "history of noncompliance or permitting noncompliance within the City" shall include where the ROW user, or any persons acting on the behalf of the ROW user, including contractors or subcontractors, has failed to return the rights-of-way to its previous condition under a previous permit, or has violated terms, or is in violation of terms of the ROW users' franchise, rights-of-way use agreement, license, or other authorization with the City.
(4) 
The City has provided the ROW user with a reasonable, competitively neutral, and nondiscriminatory justification for requiring an alternative method for performing the excavation or facilities maintenance identified in the permit application, or a reasonable alternative route that will not result in additional installation expense of more than 10% to the ROW user or a declination of service quality.
(5) 
Any other violations or noncompliance caused by or through the ROW user of any applicable City, state, or federal law or regulation, except where such violation is prohibited by applicable law for being a basis for denial.
(6) 
The City determines that the denial is necessary to protect the public health and safety, provided that the authority of the City does not extend to those items under the jurisdiction of the PSC, such denial shall not interfere with a ROW user's right of eminent domain of private property, and such denials shall only be imposed on a competitively neutral and nondiscriminatory basis. In determining whether denial of a permit application is necessary to protect the public health and safety, the director may consider one or more of the following factors:
a. 
The extent to which the rights-of-way space where the permit is sought is available, including the consideration of competing demands for the particular space in the rights-of-way, or other general conditions of the rights-of-way;
b. 
The applicability of any ordinance, code provision, or other regulations that affect the location of facilities in the rights-of-way;
c. 
The degree and nature of disruption to surrounding communities and businesses that will result from the use of that part of the rights-of-way, including whether the issuance of a permit for the particular dates and/or times requested would cause a conflict or interfere with an exhibition, celebration, festival, or any other event;
d. 
The area is environmentally sensitive as defined by state statute or federal law or is a historic district designated by City ordinance; and
e. 
The failure to comply with applicable City ordinances, or any other violation, unsafe conditions, or damage or threatened harm to the rights-of-way or public, except where such circumstance would otherwise not constitute a lawful basis for denial of a permit.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
The director may, after reasonable notice and an opportunity to cure, revoke a permit without fee refund, but only in the event of a substantial breach of the terms and material conditions of the permit. A substantial breach by a ROW user includes but is not limited to:
(1) 
A material violation of a provision of the permit;
(2) 
An evasion or attempt to evade any material provision of the permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens;
(3) 
A material misrepresentation of fact in the permit application;
(4) 
A failure to complete work by the date specified in the permit, unless a permit extension is obtained, or unless the failure to complete the work is due to reasons beyond the ROW user's control;
(5) 
A failure to correct, within the time specified by the City, work that does not conform to applicable national safety codes, industry construction standards, or local safety codes, upon inspection and notification by the City of the faulty condition; or
(6) 
Such other lawful reasons.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
Exclusion of certain locations/facilities. To the extent permitted by applicable law, the director may designate certain locations or facilities in the rights-of-way to be excluded from use by the ROW user, including but not limited to, ornamental or similar specially-designed street lights or other facilities or locations which, in the reasonable judgment of the director, do not have electrical service adequate or appropriate for the provider's facilities, or cannot safely bear the weight or wind loading thereof, or any other facility or location that in the reasonable judgment of the director is incompatible with the proposed facilities, or would be rendered unsafe or unstable by the installation. The director may further exclude certain other facilities that have been designated or planned for other use or are not otherwise available for use by the ROW user due to engineering, technological, proprietary, legal, or other limitations or restrictions as may be reasonably determined by the City. In the event such exclusions conflict with the reasonable requirements of the ROW user, the City will cooperate in good faith with the ROW user to attempt to find suitable alternatives, if available, provided that the City shall not be required to incur financial cost nor require the City to acquire new locations for the ROW user.
(b) 
Location, type, and design of facilities subject to approval.
(1) 
Review required. The design, location, and nature of all facilities shall be subject to the review and approval of the director. Such review shall be on a non-discriminatory basis in application of City policy and approvals shall not be unreasonably withheld. City height limitations, applicable zoning restrictions, and general City policies with regard to all users of the rights-of-way shall be applicable to all facilities. The director may establish regulations or policies as may be deemed necessary or appropriate to affect this provision.
(2) 
Underground and collocation 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 rights-of-way without the written permission of the City based on good cause established by applicant and found by the City. In addition, all new fiber optics, coaxial, and similar cable facilities shall be located within existing conduit, trenches, or other facilities to minimize unnecessary use of rights-of-way space, reduce potential existing or future interference and obstructions, and to reduce the cost to the public or others therefrom, and to maximize the public's ability to use and license appropriate private or public uses of the rights-of-way in the public interest except where preempted by law or where good cause is established and written permission granted by the City. Such permission may be granted by the 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 above-ground construction has minimal aesthetic impact on the area where the construction is proposed. Where reasonable and appropriate and where adequate rights-of-way exists, the ROW user shall place above-ground facilities underground in conjunction with City capital improvement projects and/or at specific locations requested by the City provided that such placement is practical, efficient, and economically feasible. New utility poles and related ground mounted equipment shall be permitted to be installed above ground; provided, however, that to ensure unobstructed pedestrian use and City maintenance of the ROW and minimize visual obstructions for vehicular traffic, a new utility pole and any ground mounted equipment related to that utility pole or the equipment thereon shall not be installed within 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 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 upon good cause shown within the application by the applicant.
a. 
Wireless antennas and facilities. Pursuant to City authority, including by RSMo 67.1830(f) and the uniform small wireless facility deployment act (RSMo 67.5110 et seq.), and due to the limited space in the City's rights-of-way and in order to minimize obstructions and interference with the use of the rights-of-way and to ensure traffic safety, while also seeking to facilitate delivery of broadband technologies to City residents and businesses, wireless facilities shall be permitted in the rights-of-way in compliance with the requirements applicable to other facilities and users in the rights-of-way, and the additional requirements set forth in this section for wireless antennas and facilities.
1. 
General conditions. Any wireless facility in the ROW shall be subject to conditions relating to the location (including prohibited or limited locations), design, height, appearance, safety, radio-frequency, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the director to address changing infrastructure, technology, and uses of the rights-of-way and/or City facilities. A wireless facility shall not be located or installed in a manner that results in interference with or impairs the operation of existing utility facilities or City or third-party attachments. Wireless antennas or facilities shall further comply with (1) all applicable requirements for installation of any facilities in the ROW as set forth in this article 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 (RSMo 67.5090 et seq.), Uniform Small Wireless Facility Deployment Act (RSMo 67.5110 et seq.), applicable zoning, building, and other regulations and approvals, specifically including Chapter 26, Article VI, Division 6 on wireless facilities.
2. 
Specific conditions.
i. 
Small wireless facilities. Any small wireless facility meeting the requirements for small wireless facility as defined by Section 26-283 and as provided in Section 26-286 of the Zoning Code shall be authorized to be located in the rights-of-way with approval of the director subject to the following additional requirements:
A. 
If proposing to install a new utility pole, compliance with the spacing requirements in § 21-60(b)(2);
B. 
Compliance with RSMo. 67.5113.3(9) 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 § 26-283 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 (RSMo 67.5110 et seq.).
ii. 
"Fast-track" small wireless collocation. Any wireless facility meeting the requirements of a "'fast-track' small wireless facility" as defined by § 26-283, and as provided in § 26-287(a)(2) of the Zoning Code, may be authorized to be located in the rights-of-way with approval of the director subject to the following additional requirements:
A. 
Attestation that the proposed facilities meet the volumetric requirements to meet the definition of "Fast Track" in Section 26-283 of the Zoning Code;
B. 
No ground equipment shall be authorized;
C. 
If the proposed structure the applicant proposes to locate its "fast-track" small wireless 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
D. 
Compliance with the spacing requirements in § 21-60(b)(2) if granted a waiver under the "fast-track" zoning procedure to install a new structure.
iii. 
All other wireless in ROW. Any wireless facility located on a utility pole or existing structure but not meeting the requirements of Subsection (b)(2)a2i, small wireless facilities, or Subsection (b)(2)a2ii, "fast-track" small wireless collocation 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: (1) in the public interest to provide a needed service to persons within the City, (2) cannot feasibly meet all of the requirements of a "small wireless facility," "fast-track" or otherwise, but varies from such requirements to the minimum extent necessary, (3) does not negatively impact appearance or property values in light of the location, design, and circumstances to be approved, (4) does not create any reasonable safety risk, and (5) complies with all zoning, ROW, and other applicable requirements.
3. 
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 $150 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 RSMo 67.1846.
(3) 
Limited space. The City shall have the power to prohibit or limit the placement of new or additional equipment in the rights-of-way if there is insufficient space to accommodate all of the requests of potential ROW users. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the rights-of-way, but shall be guided primarily by considerations of the public interest, public health and safety, the public's priority needs for the particular service, the condition of the rights-of-way, the time of year with respect to essential utilities, the protection of existing equipment in the rights-of-way, and future City plans for public improvements and development projects which are in the public interest.
(4) 
Limit number of ROW users. To the extent not prohibited by law, the City may limit the number of users in the rights-of-way in a competitively neutral manner, based upon, but not necessarily limited to, specific local considerations such as:
a. 
The capacity of the rights-of-way to accommodate current or future facilities, public improvements, or public use;
b. 
The impact on the community of the volume of facilities in the rights-of-way;
c. 
The disruption arising from the use of or numerous excavations of the rights-of-way; or
d. 
Any other consideration based upon the interests of the public safety and welfare.
(c) 
Mapping of facilities. Upon completion of the ROW work involving installation of new facilities, the ROW user shall supply the City copies of as-built and detailed maps showing the exact location of facilities installed in the ROW. As a condition of continued ROW use, all ROW users shall, on an annual basis, provide the City with as-builts or other detailed maps of the ROW user's current facilities. Such annual requirement may be waived by the director upon written request
(d) 
No interference. All ROW users shall construct and maintain its facilities so as not to interfere with other users of the rights-of-way. The ROW user shall not interfere with or alter the facilities of the City or other ROW user without their consent and shall be solely responsible for such. Except as may otherwise be provided or as determined by the director, the ROW user shall, prior to commencement of work, execute a City-approved resident-notification plan to notify residents affected by the proposed work. All construction and maintenance by the ROW user or its subcontractors shall be performed in accordance with industry standards. The ROW user shall, in the performance of any excavation, facilities maintenance, or other ROW work, limit such work to that necessary for efficient operation and so as not to interfere with other users of the rights-of-way. All facilities and other structures shall be installed and located to cause minimum interference with the rights and convenience of property owners, ROW users, and the City. Facilities and other structures shall not be placed where they will disrupt or interfere with other facilities, structures, or public improvements or obstruct or hinder in any manner the various utilities serving the residents and businesses in the City or public improvements. Above-ground facilities shall be constructed and maintained in such a manner so as not to emit any unnecessary or intrusive noise. When reasonable and necessary to accomplish such purposes, the director may require as alternatives to the proposed work either less disruptive methods or different locations for facilities consistent with applicable law.
(e) 
Subordinate uses. ROW user's use shall be in all situations subordinate and subject to public municipal use. In situations where multiple users are within the same location, first the municipal use shall have priority followed by Persons with a valid and current rights-of-way use agreement, franchise, or other authorization with the City, followed by all others.
(f) 
Site triangle maintained. ROW users shall comply with the requirements of site triangles and nothing shall be erected, placed, planted, or allowed to grow in such a manner as to materially impede vision within the triangular area formed by the rights-of-way lines and a line connecting them at points 30 feet from their point of intersection or at equivalent points on private street.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
City required relocation. The ROW user shall promptly remove, relocate, or adjust any facilities located in the rights-of-way as directed by the City when such is required by public necessity, or public convenience and security require it, or such other findings in the public interest that may require relocation, adjustment, or removal at the cost of the ROW user. Such removal, relocation, or adjustment shall be performed by the ROW user within the time frames established by the City and at the ROW user's sole expense without any expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to rules, regulations, and schedules of the City pertaining to such.
(b) 
Emergency exception. In the event of an emergency or where construction equipment or facilities create or are contributing to an imminent danger to health, safety, or property, the City may, to the extent allowed by law, remove, re-lay, or relocate such construction equipment or the pertinent parts of such facilities without charge to the City for such action or for restoration or repair. The City shall attempt to notify the person having facilities in the rights-of-way prior to taking such action, but the inability to do so shall not prevent same. Thereafter, the City shall notify the person having facilities in the rights-of-way as soon as practicable.
(c) 
Third-party relocation. A person having facilities in the rights-of-way shall, on the reasonable request of any person, other than the City, holding a validly issued permit, after reasonable advance written notice, protect, support, or temporarily disconnect or relocate facilities to accommodate such person and the actual cost, reasonably incurred, of such actions shall be paid by the person requesting such action. The person having facilities in the rights-of-way taking such action may require such payment in advance.
(d) 
Abandonment exception. Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (g) of this section.
(e) 
ROW user responsible for damage. Any damages suffered by the City, its agents or its contractors to the extent caused by the ROW user's failure to timely relocate, remove or adjust its facilities, or failure to properly relocate, remove, or adjust such facilities, shall be borne by the ROW user. Where the ROW user shall fail to relocate facilities as required by the City, the City may, but shall not be required to, upon notice to the ROW user remove the obstructing facilities with or without further delay and the ROW user shall bear all responsibility and liability for the consequences therefrom, and the City shall bear no responsibility to the ROW user or others for damage resulting from such removal.
(f) 
No vested rights. No action hereunder shall be deemed a taking of property and no person shall be entitled to any compensation therefor. No location of any facilities in the rights-of-way shall be a vested interest or property right.
(g) 
Abandoned facilities; removal. A person owning abandoned facilities in the rights-of-way must not later than 30 days of notice or of abandonment remove its facilities and replace or restore any damage or disturbance caused by the removal at its own expense. The director may upon written application and written approval allow underground facilities or portions thereof to remain in place if the director determines that it is in the best interest of public health, safety, and general welfare to do so. The City shall be entitled to all costs of removal and enforcement for any violation of this provision.
(h) 
Nuisance. Facilities abandoned or otherwise left unused in violation of this chapter are deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to, (a) abating the nuisance, (b) taking possession and ownership of the facility and restoring it to a useable function, or (c) requiring the removal of the facility by the ROW user.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
Compliance with laws. Each ROW user shall comply with all applicable federal and state laws and regulations and rules as well as all City ordinances, resolutions, rules, and regulations heretofore and hereafter adopted or established.
(b) 
Zoning, safety, and building code compliance. ROW users shall at all times be subject to the lawful exercise of the police powers of the City, including but not limited to all police powers regarding zoning, supervision of the restoration of the rights-of-way, building and safety regulations, and control of the rights-of-way currently in effect or as may be amended. Installation of all facilities in the rights-of-way are subject to and must be in compliance with all zoning and safety and building code requirements. For applications for installation of any facility in the rights-of-way, (1) the most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the official zoning district map, and (2) no application shall be submitted for approval without attaching the City's consent to use the rights-of-way for the specific construction application in accordance with RSMo ch. 67 and compliance with this chapter.
(c) 
No cause of action against the City. As a condition for use of the rights-of-way, a ROW user shall have no damages, remedy, or monetary recourse whatsoever against the City for any loss, cost, expense, or damage arising from any of the provisions or requirements of any ROW use agreement, franchise, or license, or because of the enforcement thereof by said City, or from the use of the rights-of-way. Nothing herein shall preclude the ROW user from seeking injunctive or declaratory judgment relief against the City where such relief is otherwise available and the requirements therefor are otherwise satisfied.
(d) 
Maintenance of facilities. Each ROW user shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state, and local requirements.
(e) 
Advertising, signs, or extraneous markings. ROW users shall not place or cause to be placed any sort of signs, advertisements, or other extraneous markings, whether relating to the ROW user or any other person on the rights-of-way, except such necessary minimal markings as approved by the City as are reasonably necessary to identify the facilities for service, repair, maintenance or emergency purposes, or as may be otherwise required to be affixed by applicable law or regulation.
(f) 
Responsible for subcontractors. If excavation or facilities maintenance is being done for the ROW user by another person, a subcontractor or otherwise, the ROW user shall be responsible for ensuring that the excavation or facilities maintenance of said person is performed consistent with its permit and applicable law (including that the contractor shall be properly licensed under the State of Missouri and local ordinances) and shall be responsible for promptly correcting acts or omissions by said person.
(g) 
Insurance; exceptions. Except as provided in this section, each ROW user shall provide, at its sole expense, and maintain during the term of any ROW use agreement or franchise or anytime the ROW user has facilities in the ROW, commercial general liability insurance with a reputable, qualified, and financially sound company licensed to do business in the State of Missouri, and unless otherwise approved by the City, with a rating by best of not less than "A," that shall protect the ROW user, the City, and the City's officials, officers, and employees, from claims which may arise from such use of the ROW, whether such operations are by the ROW user, its officers, directors, employees, and agents, or any contractors or subcontractors of the ROW user. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all ROW user operations, products, services, or use of automobiles or construction equipment. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall be in no event less than the individual and combined sovereign immunity limits established by RSMo. 537.610 for political subdivisions; provided that nothing herein shall be deemed to waive the City's sovereign immunity. An endorsement which states that the City as an additional insured with full and equivalent coverage as the insured under the insured's policy and stating that the policy shall not be cancelled or materially modified so as to be out of compliance with the requirements of this section, or not renewed without 30 days' advance written notice of such event being given to the director, along with copies of the policy and other documentation, shall be provided. If the person is self-insured, it shall provide the City proof of compliance regarding its ability to self-insure and proof of its ability to provide coverage in the above amounts. The City's additional insured coverage shall have no deductible. The insurance requirements in this section or otherwise shall not apply to a ROW user to the extent and for such period as the ROW user is exempted from such requirements pursuant to RSMo 67.1830(6)(a) and has on file with the City Clerk an affidavit certifying that ROW user has $25,000,000 in net assets and is otherwise therefore so exempted unless otherwise provided by a ROW use agreement or franchise or the City determines such exemption has not been adequately shown. Additionally, in accordance with RSMo 67.5121(3), a self-insured ROW user shall not be required to obtain insurance naming the City as an additional insured solely to the extent such ROW user is utilizing "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act within the ROW. This exception to the City's insurance requirements shall only apply as related to "small wireless facilities" and shall not otherwise alter the obligations of a ROW user to provide appropriate insurance to the City for any other activities or operations. The City may waive any and all requirements under this subsection when deemed to be lawful and in the public interest.
(h) 
Performance and maintenance bonds.
(1) 
Bond required. Prior to any work, a ROW user shall establish in the City's favor a performance and maintenance bond in an amount to be determined by the director to guarantee the restoration of the rights-of-way as more fully provided in § 21-64(b)(4). The bond shall continue in full force and effect for a period of 48 months following completion of the work. The director may waive this requirement when the work involves, as determined in the sole discretion of the director, no or only minor disruption or damage to the rights-of-way. The bond requirements in this section or otherwise shall not apply to a ROW user to the extent and for such period as the ROW user is exempted from such requirements pursuant to RSMo 67.1830(6)(a) and has on file with the City Clerk an affidavit certifying that ROW user has $25,000,000 in net assets and is otherwise therefore so exempted, unless otherwise provided by a ROW use agreement or franchise or the City determines such exemption has not been adequately shown. The City may waive any and all requirements under this subsection when deemed to be lawful and in the public interest.
(2) 
Failure to satisfactorily complete restoration. If a ROW user fails to complete the work in a safe, timely, and competent manner or if the completed restorative work fails without remediation within the time period for the bond (as determined by the director), then after notice and a reasonable opportunity to cure, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the ROW user and the cost of completing work in or restoring the rights-of-way, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against a security fund or letter of credit where such amount exceeds that available under a security fund or letter of credit.
(3) 
Bond terms. The bond shall be issued by a surety with an "A" or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition, shall be subject to the approval of the City's attorney and shall contain the following endorsement: "This bond may not be cancelled or allowed to lapse until 60 days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."
(4) 
Exception. In lieu of the bond required herein, the ROW user may establish in the City's favor such other security as the director may determine to be commensurate with the noted bonding requirements including, but not limited to, an annual bond to be maintained in the minimum amount of $25,000. Additionally, in accordance with RSMo 67.5121(4), the bonds required for "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act shall not exceed $1,500 per "small wireless facility" or more $75,000 for all "small wireless facilities" within the ROW of a ROW user. This exception to the City's bonding requirements shall only apply as related to such "small wireless facilities" and shall not otherwise alter the obligations of a ROW user to provide appropriate bonds to the City for any other activities or operations.
(i) 
Indemnification. Any person performing excavation or a ROW user as a condition of use of the rights-of-way shall at its sole cost and expense fully indemnify, protect, defend (with counsel acceptable to the City), and hold harmless the City, its municipal officials, officers, employees, and agents, from and against any and all claims, demands, suits, proceedings, and actions, liability, and judgment by other persons for damages, losses, costs, and expenses, including attorney fees, arising, directly or indirectly, in whole or in part, from the action or inaction of the person performing excavation or ROW user, its agents, representatives, employees, contractors, subcontractors, or any other person for whose acts the person performing excavation or ROW user may be liable, in constructing, operating, maintaining, repairing, restoring, or removing facilities or other structures, or use of the rights-or-way or the activities performed, or failed to be performed, by the person performing excavation or ROW user under this chapter or applicable law, or otherwise, except to the extent arising from or caused by the sole or gross negligence or willful misconduct of the City, its elected officials, officers, employees, agents, or contractors. Nothing herein shall be deemed to prevent the City, or any agent from participating in the defense of any litigation by their own counsel at their own expense. Such participation shall not under any circumstances relieve the person from the duty to defend against liability or its duty to pay any judgment entered against the City, or its agents. This indemnification shall survive the expiration or termination of any ROW use agreement, license, or permit. Provided however, that in accordance with RSMo 67.5121(2), a ROW user solely to the extent a ROW user is operating "small wireless facility" as defined in the Uniform Small Wireless Facility Deployment Act within the ROW shall only indemnify and hold the City, its officers and employees, harmless against any damage or personal injury caused by the negligence of the ROW user, its employees, agents, or contractors. This exception shall only apply to the ROW user's "small wireless facilities" and shall not otherwise alter the obligations of a ROW user to provide indemnification to the City for any other activities or operations.
(j) 
ROW user responsible for costs. The ROW user shall be responsible for all reasonable costs borne by the City that are directly associated with ROW user's installation, maintenance, repair, operation, use, and replacement of its facilities in the rights-of-way that are not otherwise accounted for as part of the permit fee established pursuant to this chapter, to the extent permitted by law. All such costs shall be itemized and the City's books and records related to these costs shall be made available upon request of the ROW user.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
Open excavations; street-plate bridging. The ROW user shall not permit an excavation to remain open or facilities maintenance actions to continue in the rights-of-way longer than is necessary to complete the repair, installation or action, and in no event, may an excavation or facilities maintenance remain open or continue beyond the expiration of the excavation permit or any approved extension. Unless otherwise approved by the director in writing, all excavations shall be filled in or covered at the end of each working day. Street plate bridging (SPB) to cover open excavations shall be authorized subject to requirements contained in the standard specifications.
(b) 
Interference control. The ROW user excavating in the rights-of-way shall cause the excavation to be done with the least possible injury to the pavement, sidewalk, curbing, parkway, or other surface and shall place the materials from the excavation where they will cause the least possible inconvenience to the public and permit the uninterrupted passage of water along the gutters. The width of the excavation shall be no greater than is necessary for doing the work.
(c) 
Erosion control. Before new excavation or construction is commenced and until sodding, planting, concreting, paving, or other final surfacing is in place, which will avoid washing or spreading of dirt and mud onto other property, sidewalks, curbs, gutters, streets, and the rights-of-way, the ROW user shall erect and maintain approved temporary erosion control measures to prevent such washing or spreading of materials. At the end of each day and as required throughout the day during the course of excavating or construction, dirt and mud on the sidewalks, curbs, gutters, streets, and the rights-of-way resulting from work must be removed.
(d) 
Cleaning up; removing mud from vehicles. The person doing the excavating or other ROW work under the requirements of this chapter shall immediately, after the work is completed and the refill is made, clean up and haul away all surplus earth, rock, debris, or other rubbish. The ROW user shall remove dirt from the wheels of all vehicles leaving any site where mud has accumulated on the wheels before such vehicles enter any public street of the City. It shall be unlawful for any ROW user to permit any vehicles to leave such place with mud on the wheels which is liable to be dispersed over any public street of the City and it shall be unlawful for any driver of a vehicle to enter upon the public streets of the City without having removed or had mud removed from the wheels prior to such entry. Each occurrence shall be a separate offense. The ROW user shall be responsible for damages to the City, or its contractors, resulting from such failure and shall indemnify the City and its contractors as provided herein and pay the costs for remedying such failure.
(e) 
Spilling materials onto rights-of-way. The ROW user shall load materials on any vehicle so no portion thereof shall be spilled or be liable to be spilled on the streets of the City. It shall be unlawful for any ROW user to permit any vehicle to enter upon the streets of the City loaded in violation of this provision and it shall be unlawful for any person to operate a vehicle on the streets of the City which is loaded in such manner that it spills or is liable to spill mud, dirt, or other materials on the streets.
(f) 
Hours of activity. Nonemergency excavations or facilities maintenance effecting traffic on arterial and collector streets may not be performed during the hours of 7:00 a.m. to 8:30 a.m. and 4:00 p.m. to 6:00 p.m., in order to minimize disruption of traffic flow. The ROW user shall perform excavations or facilities maintenance on the rights-of-way at such times that will allow the least interference with the normal flow of traffic and the peace and quiet of the neighborhood, and shall not work between the hours of 11:00 p.m. and 6:00 a.m.
(g) 
Methods of pavement removal, excavation, and backfill. The person making an excavation shall abide by the following conditions:
(1) 
The initial cut in a street pavement shall be equal to the width of the trench with the option of being jack hammered or saw cut. The final cut in an asphaltic concrete street pavement shall be one foot wider than the trench width and shall be made only by saw cutting of the pavement.
(2) 
For cuts in concrete paved streets, concrete pavement replacement shall be full slab length (joint-to-joint) and full slab width (curb or gutter to street centerline) unless specifically authorized otherwise by the director.
(3) 
Refill excavation with suitable unfrozen materials free from trash, rubbish, vegetative and deleterious material, and/or rocks over three inches in maximum dimension, in layers not exceeding eight inches in depth and each layer shall be compacted thoroughly.
(4) 
Compaction shall meet or exceed the most current version of the standards and conditions of the City and the ASTM International (American Society for Testing and Materials). If inspections were not requested or a valid excavation permit obtained, the City may require compaction testing by a registered professional engineer licensed in the State of Missouri at the ROW user's expense.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
Property repair and alterations.
(1) 
No damage. During any work, the person doing the work shall protect from damage any and all existing structures and property belonging to the City and any other person. Any and all rights-of-way, public property, or private property disturbed or damaged during the work shall be repaired or replaced by the person doing the work or the person on whose behalf the work is being done and such person shall immediately notify the owner of the fact of any damaged property. Such repair or replacement shall be completed within a reasonable time specified by the director and to his/her satisfaction.
(2) 
Alterations. Any alteration to the existing water mains, sewerage or drainage system, or to any City, state, or other public structures or facilities in the rights-of-way required on account of the construction, installation, repair, or maintenance of facilities in the rights-of-way shall be made at the sole cost and expense of the owner of such facilities.
(b) 
Specifications and conditions for work.
(1) 
Barricades and safety devices. The ROW user assumes the sole responsibility for maintaining proper barricades, plates, safety fencing, and/or lights as required from the time of opening of the ROW until the excavation is surfaced and opened for travel. All excavations and facilities maintenance that disturb traffic or pedestrian travel shall be barricaded in such a manner as to protect both pedestrians and vehicular traffic. Such excavations, facilities maintenance, and barricades shall be lighted at night with danger signals in such a manner that all traffic may be warned of the existence and location of such excavations, facilities maintenance, and barricades.
(2) 
Traffic control. Whenever there is an excavation or facilities maintenance by the ROW user, the ROW user shall be responsible for providing adequate traffic control to the surrounding area as determined by the director. All traffic control devices shall be in compliance with the current version of the standard specifications and the Manual of Traffic Control Devices (MUTCD), unless otherwise agreed to by the City. All surplus excavation materials, tools, or supplies at the site of the excavation or facilities maintenance shall be barricaded and lighted at night in the manner described in this section. In the event the excavation or facilities maintenance is not completed in a reasonable period of time, the ROW user may be liable for actual damages to the City for delay caused by the ROW user pursuant to this chapter.
(3) 
Specifications and restoration. All work and maintenance shall comply with all such specifications as may be established by the director. The ROW user shall restore the rights-of-way and surrounding areas and shall comply with other reasonable conditions of the director. Restoration of the rights-of-way shall be completed within the dates specified in the ROW permit unless the Director issues a waiver, extension, or a new or revised ROW permit.
(4) 
Failure to restore. If a ROW user fails to restore the rights-of-way to its reasonable before condition (including placement of sod to restore any grassy areas unless such requirement is waived by the director in his/her sole discretion based on area disturbed and weather conditions) within the date specified either by the ROW permit or any extension thereof as granted by the director, the City may perform its own restoration. If the City performs the restoration, the ROW user shall be responsible for reimbursing the City's reasonable actual restoration costs within 30 days of invoice. The City may use the required performance bond to repair the same, if necessary. The ROW user shall not be relieved of the obligation to complete the necessary rights-or-way restoration and maintenance because of the existence of any performance bond required by this chapter.
(5) 
Inspection. When an excavation has been made in the ROW, and after the same has been properly backfilled, the person making the excavation shall notify the director that the same is ready for final repair. The director or his duly authorized agent shall inspect the same. The judgment of the director or his authorized agent as to when an excavation has been properly backfilled to permit final repair shall be conclusive. If any person fails to contact the director for an inspection within a reasonable time, as determined by the excavation permit issued for the excavation, after completion of the work, to ensure that the rights-of-way or other public place has been restored to as good a condition as it was previous to such excavation being made, the excavation shall not be deemed complete and the ROW user shall be in violation of this chapter.
(6) 
Notice of completion. The ROW user shall notify the director upon completion of the excavation or facilities maintenance authorized by the excavation permit.
(7) 
Guarantee of work. Every ROW user in restoring the rights-of-way, shall guarantee its work and shall maintain it for 48 months following its completion and in accordance with RSMo 67.1834. During the 48 months, the ROW user shall, upon notification from the director, correct all restoration work to the extent necessary, using any method as required by the director. Said work shall be completed within a reasonable time, not to exceed 30 calendar days, of the receipt of notice from the director (not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable). In the event the ROW user is required to perform new restoration pursuant to the foregoing guarantee, the director shall have the authority to extend the guarantee period for such new restoration for up to an additional 48 months, or other greater period allowed by law, from the date of the new restoration requirements. The guarantee period shall be applicable to failure of the pavement surface as well as failure below the pavement surface.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
Inspections. All work and facilities shall be subject to inspection by the City and the supervision of all federal, state, and local authorities having jurisdiction in such matters to ensure compliance with all applicable laws, ordinances, departmental rules and regulations, and the permit.
(b) 
Stop work orders. The director shall have full access to all portions of the work and may issue stop work orders and corrective orders to prevent unauthorized work or substandard work as established herein. Except in cases of an emergency or with approval of the director, no work may be done in violation of a stop work order issued by the director.
(c) 
Repairs when defective. All violations of the standards and requirements herein shall be corrected within the time specified in the issuance of a written notice to correct. Action to correct violations which require immediate action shall be taken upon notification to the person by the City. Every person failing to comply with the oral or written notice shall be deemed in violation of this chapter. If the action is not taken within the time period specified by notice and in addition to any other remedy, the director may have the violation, including but not limited to, the existence of mud or debris on the rights-of-way, immediately remedied and the City's costs shall be reimbursed by the ROW user through the surety or otherwise. Nothing in this subsection shall prevent prosecution of violation of this chapter in the absence or in addition to the issuance of notice of violation.
(d) 
Appeals. Unless otherwise provided herein or by any other governing ordinance or law, any person aggrieved by a decision, fee or requirement established or made pursuant to this chapter shall, prior to seeking any judicial or statutory relief, if any, fire a written appeal of any such decision, fee, or requirement with the City Council within 15 days of such decision or imposition of such fee or requirement specifying this provision and including specific details of the alleged claim or grievance, and an evidentiary hearing shall be held on such appeal by the City Council or its designee to render a final decision. Nothing herein shall deny or preclude any additional applicable appeal remedy that may be granted and required by federal or state law after such decision.
(e) 
Enforcement; attorneys' fees. The City shall be entitled to enforce any provision of this Code through all remedies lawfully available, and any person determined to have violated the terms of this Code shall further be liable to pay the City's costs and attorneys' fees in enforcing such Code provisions. Additionally, any user of City services, rights-of-way, or other City facilities or property, shall, as a condition of such use or continued use, to the full extent permissible by law, be liable to pay the City's costs and attorneys' fees incurred in enforcing any lawful requirement applicable to such use, whether arising in contract, statute, ordinance, or other enforceable duty as to such use.
(f) 
Penalties. In addition to any other penalties and remedies for violations that may exist in law or equity, any person that violates any provision of this chapter shall be subject to such penalties as set forth in Section 1-7 of the City Code per day for each and every day the violation exists or continues.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
In addition to any rights specifically reserved to the City by this chapter, the City reserves unto itself every right and power which is required to be reserved by a provision of any ordinance under any registration, permit, or other authorization granted under this chapter, and as may be authorized by RSMo ch. 67 and other authority applicable to regulation of the use of the rights-of-way. Notwithstanding anything to the contrary set forth herein, the provisions of this chapter shall not infringe upon the rights of any person pursuant to any applicable state or federal statutes, including, but not limited to any right that may exist to occupy the rights-of-way.
[Ord. No. 1090, § 2 (Exh. A), 2-5-2019]
(a) 
Attachment fee required. No person, other than the City or a department thereof, shall attach or maintain any fixture to or place or maintain any facilities or wires on any utility pole or other fixture or facility of the City within the rights-of-way or easements without: (1) a pole attachment agreement approved by the City Council after the date hereof, and (2) payment of a pole attachment fee of $8.50 per pole per year or as may be hereinafter approved as alternative lawful compensation in a pole attachment agreement approved by the City Council after the date hereof, or such other amount as may be established hereinafter by the City Council by resolution or ordinance in conformance with any applicable law. Failure to hold and maintain a current and valid pole attachment agreement with the City shall not excuse payment of the pole attachment fee at the rate required herein. Where a pole attachment agreement expires, and in addition to any penalties or other requirements, the licensee during any holdover period shall pay monthly 1/12 of the rate above or 1/12 of the rate in the expired agreement, whichever is greater, until a valid agreement is obtained, or the attachments are removed. The person shall indemnify and be responsible to pay all costs incurred by the City in any way due or arising from any such attachment or violation of any provision hereof or of any pole attachment agreement including, but not limited to, attorneys' fees, except as may be otherwise expressly provided by agreement. To the extent that limitations by state or federal law require a lower rate than established herein, such lower maximum rate permitted by law shall apply in lieu of the rate established above.
(b) 
Payment and affidavit — When. Unless otherwise provided by pole attachment agreement or applicable law, amounts due under this section shall be paid to the City not later than January 15 of each year for the prior calendar year (or pro rata portion thereof if less than a full year) and any amount unpaid after such date shall accrue interest payable to the City at the rate of 1.5% per month, or such lesser amount if limited by applicable law. Each payment shall be accompanied by an affidavit of the number of poles to which attachments exist and computation of the fee.
(c) 
Agreement required. Except as otherwise provided by applicable law, no pole attachment shall be authorized except by authorized pole attachment agreement, which shall include such provisions as necessary to protect the public interest and provide for payment of the required compensation consistent with this section. An application may be required containing such information as may be necessary to determine the appropriateness of the application and may contain a fee requirement in an amount sufficient to reimburse the City its costs or such other reasonable basis as permitted by law. A franchise or ROW agreement shall not be deemed to authorize pole attachments unless expressly so provided therein. No pole attachment agreement shall be granted to any person unless such person has a valid franchise or ROW agreement with the City, whether separately granted or incorporated in the pole attachment agreement, except in any case where such requirement is prohibited by applicable law. A pole attachment agreement shall be reviewed and approved, denied or conditioned as the public interest dictates subject to all applicable law. Nothing herein shall be interpreted to contravene any unwaived rights in a duly authorized and lawful existing agreement with the City. Unless otherwise provided, attachments to any City-owned or controlled utility pole, fixture, or facility within non-rights-of-way property of the City shall be permitted only if a lease agreement or other separate approval has been negotiated and approved by the City with such reasonable terms as the City may require.
(d) 
Penalty for attachments without agreement. Any person or entity who shall, attach or maintain any fixture to or place or maintain any facilities or wires on any City facilities, including any utility poles or other fixture or facility of the City, within City rights-of-way or easements without a currently valid and unexpired pole attachment agreement approved by the City Council, whether the person has failed to obtain a pole attachment agreement or whether a former pole attachment agreement has expired or been terminated, shall be subject to a penalty of an unauthorized attachment fee of $250 per pole per unauthorized attachment. Any person who shall attach or maintain any fixture to place or maintain any facilities on any City facilities, including any utility poles or other fixture or facility of the City within City rights-of-way or easements without a currently valid and unexpired pole attachment permit, or in violation of the pole attachment agreement, pole attachment permit, or this article, shall be subject to a penalty of an unauthorized attachment fee per pole per attachment equal to five times the current annual pole attachment fee rate set by the City Council for every year or portion thereof that such person is in violation of this article or the attachment is otherwise unauthorized. Provided that no person shall be subject to the penalties in this section until after the person has been provided a reasonable time, of not more than 60 days, to cure the violation. Up to 75% of the penalties provided for in this section may be waived if the violation is self-reported, the violation is remedied in a timely manner, and the City's costs in enforcing the applicable pole attachment agreement, pole attachment permit, or this article are reimbursed. Penalties under this section shall be required to be paid on a monthly basis in accordance with the procedures and interest of Subsection (b) of this section. Any person asserting any right to proceed on City poles, where no pole attachment agreement yet exists between the parties, pending a dispute over required pole agreement terms that exclusively are as to the "per-pole fee or any requirement or issue not directly related to the pole attachments" ("protestable terms"), shall except to the extent such applicant may be exempted by law, and prior to proceeding on any pole: (1) execute the pole attachment agreement required by the City and provide the City with such executed copy for execution by the City, and (2) provide a cover letter under oath specifically asserting (i) that a dispute remains as to terms in the executed agreement exclusively as to the protestable terms in such agreement, and (ii) specifically set forth each and every provision (quoting the precise disputed words) that are so disputed. During pendency of the dispute, the agreement shall be binding and applicable as written, provided that the protestable terms specifically disputed shall be deemed protested and subject to ultimate judicial resolution by a court to be unlawful. The agreement shall be required and deemed to establish the "agreed upon terms and conditions" accepted by the user subject only to the protestable terms specifically identified as authorized herein. In the event that there is a dispute as to terms other than protestable terms, no attachment shall occur until such dispute or disagreement is resolved and nothing in this article shall be deemed to authorize proceeding on City poles without an executed agreement, or to authorize protest of any provisions not specifically protested in the required cover letter authorized herein. Pending the resolution of the dispute, the pole user shall comply with all requirements in the agreement and shall be subject to all remedies and penalties for breach thereof, subject to court action as to any protestable terms, and subject to any limitations as may be mandated by law. All pole use shall occur only after obtaining an attachment permit from the City in its capacity as pole owner for such use, and all such permits shall be deemed to incorporate this article and all provisions of the applicable required agreement. Failure to execute an agreement shall be deemed a material violation of this article and of a permit as to any such pole use, and failure to obtain a permit shall further be deemed a material violation of this article and of a required permit and agreement, whether or not actually obtained as required herein. Notwithstanding any provision herein, no party shall have the right to proceed on a City pole during the pendency of a dispute as to any City required terms except when such right is also specifically granted by enforceable valid state or federal law. Penalties under this subsection shall be required to be paid on a monthly basis as provided in Subsection (b).
(e) 
Appeal of agreements. Any person or entity who is required to obtain a pole attachment agreement under this section may avoid penalties under Subsection (d) above by complying with all application requirements and executing a pole attachment agreement provided by the City and submitting therewith a letter notifying the City that the agreement or other requirements are claimed by the person or entity to be unlawful under the circumstances and are being executed and/or submitted under protest. This letter shall be separate and apart from any protest letter required by Subsection (d) for dispute of protestable terms. Within 20 days of its execution of the agreement, the person or entity shall file with the City Clerk a verified appeal seeking relief from any fee, term, or condition of the pole attachment agreement or other requirement that the person or entity alleges to be unlawful. The appeal shall state with specificity the fee, term, or condition which is claimed to be unlawful and shall specify all basis, data, information, and argument relied upon to justify said claims. The person or entity may request the City Council to hold a public hearing at which such basis, data, information and argument may be received. The City Council may provide relief from any rate, term, or condition that it finds in its sole discretion to be unlawful under the facts presented or otherwise unlawful by addition, deletion, or amendment to the agreement. If the person or entity accepts such relief, the addition, deletion, or amendment to the pole attachment agreement shall be made by a writing executed by the person or entity and the City. If such relief is not accepted, the pole attachment agreement shall remain in full force and effect, and the person or entity may then pursue any available remedies in a court of law or otherwise, provided that nothing herein shall be deemed to be a waiver of the City's sovereign immunity. No final decision of the City on any fee, term, or condition shall be deemed to exist prior to completion of this appeal process. Nothing herein shall be deemed to unlawfully limit any remedy that is required to be available as a matter of law.
(f) 
Insurance. Before any user shall attach or maintain any fixture to or place or maintain any facilities or wires on any utility pole or other fixture or facility of the City within City rights-of-way or easements, such user shall maintain, at its sole expense, 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 user, the City, and the City's officials, officers, and employees from claims which may arise from such use, whether by the user, its officers, directors, employees, and agents, or any subcontractors of 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 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 $2,804,046, but in no event less than the individual and combined sovereign immunity limits established by RSMo 537.610, or its successor, 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 named as an additional insured with full and equivalent coverage as the insured under the insured's policy and stating that the policy shall not be cancelled or materially modified so as to be out of compliance with the requirements of this section, or not renewed without 30 days' advance written notice of such event being given to the City Clerk. The City's additional insured coverage shall have no deductible. Proof of compliance with this requirement, including current and duly issued certificates of insurance, or copies of the policies if so requested by the City, shall be maintained with the City at all times.
(g) 
In demnification. In addition to any supplemental requirement as may be specified in a pole attachment agreement, any person or entity attaching to any City pole shall indemnify and hold harmless the City, including each and every officer, employee, or agent thereof, for any liabilities, damages, or costs incurred that are caused or result from, in whole or in part, the attachment, or attaching person or entity, except where prohibited by applicable law.
(h) 
Penalty. Any person violating any provision of this section shall, in addition to being subject to all other remedies herein, be deemed guilty of an offense and upon conviction thereof shall be fined not less than $100 nor more than $500. Each day's violation shall constitute a separate offense.
(i) 
Conflict. Nothing in this section shall apply or be interpreted to apply in conflict with any state or federal law.