[R.O. 1988 § 36-23; Ord. No. 4004 § 1, 5-2-2011; Ord. No. 4469 § 1, 2-4-2019]
Whenever the use, convenience or necessity of the public shall require it, the Director of Public Works shall have the authority to order the owners or agents in charge of property adjacent to which curb cuts, sidewalks, curbs, or driveways are maintained upon the rights-of-way, alter such improvement in such manner as they shall find reasonably necessary under the circumstances, if such improvement fails to conform to the aforesaid standard plans and specifications. The Director shall allow a reasonable period of time for such alteration to be made. It shall be unlawful for any person to maintain such non-conforming curb cut, sidewalk, curb or driveway after the expiration of such time.
[R.O. 1988 § 36-24; Ord. No. 4469 § 1, 2-4-2019]
(a) 
Applicability. Except as provided for herein and where limited by applicable law, Articles III through VI 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 Articles III through VI. Because numerous types of users and uses of the ROW may be subject to various or changing regulatory schemes under Federal or State law, any such limitation or qualification that may be applicable to less than all users and uses of the ROW are not duplicated herein, but are nevertheless incorporated herein, whenever application is so required by law, including, but not limited to, applicable provisions of Chapter 67, RSMo., and other applicable State and Federal law.
(b) 
Preemption. No provision of this Chapter shall apply to any circumstance in which such application shall be unlawful under superseding Federal or State law and furthermore, if any Section, Subsection, sentence, clause, phrase, or portion of this Chapter is now or in the future superseded or preempted by State or Federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and applied as required by law.
[R.O. 1988 § 36-25; Ord. No. 4469 § 1, 2-4-2019]
For purposes of Articles III through VI, the following terms, phrases, words, and their derivatives shall have the meanings set forth herein, unless the context clearly indicates that another meaning is intended.
ABANDONED FACILITIES
Any equipment, materials, apparatuses, devices, or facilities that are:
(a) 
Declared abandoned by the owner of such equipment or facilities;
(b) 
No longer in active use for a period of six (6) months or more, and the owner of such equipment or facilities fails to respond within thirty (30) days to a written notice sent by the City; or
(c) 
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 other authorization to install, maintain, repair, or otherwise physically access facilities in the rights-of-way.
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 § 67.2677, RSMo. The term "communications service" does not include the rental of conduit or physical facilities.
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:
(a) 
Any de minims displacement or movement of ground caused by pedestrian or vehicular traffic;
(b) 
The replacement of utility poles and related equipment at the existing general location that does not involve either a street or sidewalk cut; or
(c) 
Any other activity which does not disturb or displace surface conditions of the earth, asphalt, concrete, sand, gravel, rock, or any other material in or on the ground.
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 a license issued by the Director of Public Works as provided herein.
FACILITIES MAINTENANCE or MAINTENANCE
The construction, installation, repair, upgrade, or other physical access to the facility in the ROW that does not involve excavation.
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 Director of Public Works 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.
OBSTRUCTION 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 the ROW user to occupy or obstruct the ROW.
PERSON
A corporation, partnership, proprietorship, individual, organization, governmental entity, or any natural person.
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.
ROW USE AGREEMENT
The document granting consent by the City to use the rights-of-way for the purpose of providing communication services or for such other use for which a franchise or license is not applicable as provided for herein.
ROW PERMIT
An excavation permit and/or an obstruction permit.
ROW USER
All persons and entities, whether a Missouri Public Service Commission 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, a ROW user shall not include the City.
[R.O. 1988 § 36-26; Ord. No. 4469 § 1, 2-4-2019]
(a) 
Franchise, ROW Use Agreement, Or License.
(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 ROW use agreement pursuant to a license issued by the Director of Public Works. The Director of Public Works shall have discretion to establish such application, requirements, and conditions applicable to such uses consistent with the purposes of Articles III through VI or as otherwise established by law. The applicant shall be required to pay an application fee and an inspection fee as established by the Director of Public Work. Any person granted a license hereunder shall be subject to the applicable requirements of Articles III through VI. Unless otherwise stated in the license, a license shall be for an indefinite time and shall be revocable at any time on written notice in the public interest by the City.
(b) 
Condition Precedent To ROW Permit. Unless otherwise required by applicable law, no ROW permit required under Article IV may be issued to any person unless or until such person has a valid franchise, ROW use agreement, or license with the City that authorizes that person's use of the rights-of-way. Unless prohibited by applicable law, in addition to any other reason provided herein, the Director of Public Works may deny a ROW permit to any person that does not have a valid franchise, ROW use agreement, or license with the City.
(c) 
Grant And Nature Of Approval; Terms And Compensation. The authority granted by the City pursuant to any ROW use agreement, franchise, or license shall be for non-exclusive use of the City's 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 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.
(d) 
Transferability. The Director of Public Works 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 Articles III through VI.
(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 (including Rolla Municipal Utilities) 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 facilities controlled or owned by the City (including Rolla Municipal Utilities) or a third party.
(f) 
Lease Required For Public Lands. Unless otherwise provided, use or installation of any facilities or other structure within non-rights-of-way public property of the City shall be permitted only if a lease agreement or other separate written approval has been negotiated and approved by the City with such reasonable terms as the City may require.
(g) 
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 Articles III through VI or a ROW use agreement or franchise, 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 Articles III through VI 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 or franchise, and all rights thereunder shall cease, terminate, and become null and void, provided that said forfeiture shall not take effect until the City shall carry out the following proceedings: Before the City declares the forfeiture or revocation of a ROW use agreement or franchise, it shall first serve a written notice upon the person setting forth in detail the neglect or failure complained of, and the person shall have thirty (30) days thereafter, or such other reasonable period established by the Director of Public Works, in which to cure the default by complying with the conditions of the such ROW use agreement or franchise and fully remedying any default or violation. If at the end of such period, the City determines that the conditions have not been complied with and that the person did not reasonably and in the public interest require more than the established time to cure the default, the City shall take action by an affirmative vote of the City Council present at the meeting and voting to terminate the ROW use agreement or franchise, 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.
[R.O. 1988 § 36-27; Ord. No. 4469 § 1, 2-4-2019]
(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 Articles III through VI and as determined necessary by the Director of Public Works. The ROW user shall be responsible for accurately maintaining the information in the application during the term of any franchise or ROW use agreement and shall be responsible for all costs incurred by the City due to the failure to provide or maintain as accurate any application information required herein.
(b) 
Application Deposit Fee. An application deposit of five hundred dollars ($500.00), or such other amount determined to be required, shall be submitted with the application, which shall be utilized to at least partly offset the City's costs in reviewing and issuing an agreement, consistent with applicable law provided that no costs shall be included if such inclusion is prohibited by applicable law as to that person; any amount not used by the City for its actual lawfully reimbursable costs will be refunded upon request after execution of a ROW use agreement or franchise. If applicable, the applicant shall be obligated to reimburse the City for its reasonable expenses associated with the review, negotiation, and adoption of an appropriate ROW use agreement or franchise that may exceed the application deposit.
(c) 
Standard For Approval Or Renewal. In reviewing an application for a new or renewal ROW use agreement or franchise, the City may consider prior conduct of the person in performance of its obligations or compliance with the City's ordinances in the past, or the existence of any outstanding violations or deficiencies. The City may deny or condition any ROW use agreement 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 Articles III through VI or as otherwise provided by law. All ROW use agreements or franchises may be approved by ordinance or resolution of the City Council after receipt of an executed copy from applicant, 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. The City may, if appropriate, notwithstanding the provisions herein approve form agreements that may be executed by the Director of Public Works in substantially the form approved.
[R.O. 1988 § 36-28; Ord. No. 4469 § 1, 2-4-2019]
(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 applicable zoning and safety and building code requirements. For applications for installation of any facility in the rights-of-way, the most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the official zoning district map.
(c) 
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. The ROW user shall not make or attempt to make repairs, relocation, or replacement of damaged or disturbed facilities without the approval of the owner of the facilities.
(d) 
No Waiver. No action or omission of the City shall operate as a future waiver of any rights of the City under Articles III through VI. 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.
(e) 
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 the 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.
(f) 
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.
(g) 
Subordinate Use. The ROW user's use shall be, in all situations, subordinate and subject to public municipal use.
(h) 
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 ROW 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.
(i) 
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's operations, products, services, or use of automobiles or construction equipment. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall be in no event less than the individual and combined sovereign immunity limits established by Section 537.610, RSMo., for political subdivisions; provided that nothing herein shall be deemed to waive the City's sovereign immunity. An endorsement which states that the City as an additional insured with full and equivalent coverage as the insured under the insured's policy and stating that the policy shall not be cancelled or materially modified so as to be out of compliance with the requirements of this Section, or not renewed without thirty (30) days' advance written notice of such event being given to the Director or Public Works. 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 insurance requirements in this Section or otherwise shall not apply to a ROW user to the extent and for such period as the ROW user is exempted from such requirements pursuant to Section 67.1830(6)(a), RSMo., and has on file with the City Clerk an affidavit certifying that ROW user has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of permitting non-compliance with the City. Additionally, in accordance with Section 67.5121(3), RSMo., a self-insured ROW user shall not be required to obtain insurance naming the City as an additional insured solely to the extent such ROW user is utilizing "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act[1] within the ROW. This exception to the City's insurance requirements shall only apply as related to "small wireless facilities" and shall not otherwise alter the obligations of a ROW user to provide appropriate insurance to the City for any other activities or operations. The City may waive any and all requirements under this Subsection when deemed to be lawful and in the public interest.
[1]
Editor's Note: See Sections 67.5110 to 67.5121, RSMo.
(j) 
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 of Public Works to guarantee the restoration of the rights-of-way as more fully provided in Section 36-77. The bond shall continue in full force and effect for a period of forty-eight (48) months following completion of the work. The Director may waive this requirement when the work involves, as determined in the sole discretion of the Director, no or only minor disruption or damage to the rights-of-way.
(2) 
Failure To Satisfactorily Complete Restoration. If a ROW user fails to complete the restoration 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 of Public Works), 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 sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."
(4) 
Exception. The City may waive any and all requirements under this Subsection when deemed to be lawful and in the public interest. Further, in lieu of the bond required herein, the ROW user may establish in the City's favor such other security as the Director of Public Works may determine to be commensurate with the noted bonding requirements, including, but not limited to, an annual bond to be maintained in the minimum amount of twenty-five thousand dollars ($25,000.00). 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 Section 67.1830(6)(a), RSMo., and has on file with the City Clerk an affidavit certifying that ROW user has twenty-five million dollars ($25,000,000.00) in net assets and facts otherwise demonstrating the ROW user is exempted, unless otherwise provided by a ROW use agreement or franchise or the City determines such exemption has not been adequately shown. Additionally, in accordance with Section 67.5121(4), RSMo., the bonds required for "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act shall not exceed one thousand five hundred dollars ($1,500.00) per "small wireless facility" or more seventy-five thousand dollars ($75,000.00) for all "small wireless facilities" within the ROW of a ROW user. This exception to the City's bonding requirements shall only apply as related to such "Small Wireless Facilities" and shall not otherwise alter the obligations of a ROW user to provide appropriate bonds to the City for any other activities or operations.
(k) 
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 Articles III through VI 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, franchise, license, or ROW permit; provided, however, that in accordance with Section 67.5121(2), RSMo., a ROW user which is a wireless provider, for and in relation to that the wireless provider's operation of a "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.
(l) 
ROW User Responsible For Costs. The ROW user shall be responsible for all reasonable costs borne by the City that are directly associated with ROW user's installation, maintenance, repair, operation, use, and replacement of its facilities in the rights-of-way that are not otherwise accounted for as part of the ROW permit fee established pursuant to Article IV, or other applicable application fee with respect to a ROW user's request to place facilities in the ROW, 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.
[R.O. 1988 § 36-29; Ord. No. 4469 § 1, 2-4-2019]
(a) 
Exclusion Of Certain Locations/Facilities. To the extent permitted by applicable law, the Director of Public Works 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 of Public Works cannot safely bear the weight or wind loading thereof, or any other facility or location that in the reasonable judgment of the Director of Public Works would be rendered unsafe or unstable by the installation; provided, however, that pursuant to Section 67.5112(6), RSMo., a wireless provider shall be permitted to replace decorative poles when necessary to co-locate a small wireless facility so long as any such replacement pole reasonably conforms to the design aesthetics of the decorative poles being replaced. The Director of Public Works 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 of Public Works. 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 of Public Works may establish regulations or policies as may be deemed necessary or appropriate to affect this provision.
(2) 
Underground And Co-location Of Facilities Required; Exceptions. Except as provided herein or where prohibited by applicable law, no person may erect, construct, or install new poles or other facilities above the surface of the rights-of-way without the written permission of the City based on good cause established by 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 one hundred and fifty (150) feet of another utility pole or other ground-mounted equipment on the same side of the ROW. A replacement utility pole that is installed in lieu of an existing utility pole and is installed within ten (10) feet of the existing utility pole, shall not be considered a new utility pole subject to the spacing requirements herein. Such spacing regulations as applied to that specific site may be altered by the City Administrator upon good cause shown by the applicant, including: 1) when and where nearby utility poles exist that are spaced closer than one hundred and fifty (150) feet apart; 2) when conditions are such that no existing structure is available for placement of facilities; and 3) the utility pole can be placed to be minimally visually intrusive.
(3) 
Wireless Antennas And Facilities. Pursuant to City authority, including Section 67.1830, RSMo., and the Uniform Small Wireless Facility Deployment Act (Section 67.5110 et seq., RSMo.), and to properly manage the limited space in the City's rights-of-way, minimize obstructions and interference with the use of the rights-of-way by the public and to ensure public safety, while also seeking to facilitate delivery of broadband technologies to City residents and businesses, wireless facilities shall be permitted in the 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 the Uniform Small Wireless Facility Deployment Act and this Subsection for wireless antennas and facilities.
a. 
General Conditions. Except as prohibited by law, any wireless facility in the rights-of-way shall be subject to conditions relating to the location (including prohibited or limited locations), design, height, appearance, safety, radio-frequency interference, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the Director of Public Works 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 rights-of-way as set forth in Articles III through V including a ROW permit, 2) the applicable requirements of this Section; and 3) requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Section 67.5090 et seq., RSMo.), Uniform Small Wireless Facility Deployment Act (Section 67.5110 et seq., RSMo.), applicable zoning, building, and other regulations and approvals, specifically including Chapter 42.
b. 
Specific Conditions.
1. 
Small Wireless Facilities. Any small wireless facility meeting the requirements for small wireless facility as defined and provided in Chapter 42, Article IV, Division 3, shall be authorized to be located in the rights-of-way with approval of the Director of Public Works subject to the following additional requirements:
i. 
If proposing to install a new authority pole as defined in Chapter 42, Article IV, Division 3, compliance with the spacing requirements herein;
ii. 
Compliance with Section 67.5113, RSMo., to the satisfaction of the City;
iii. 
For co-locations on City authority poles, all make-ready estimates for the authority pole, including replacement costs where necessary for the safety and reliability of the utility pole, as determined by the City;
iv. 
Attestation that the proposed small wireless facility meets the volumetric requirements to meet the definition of a small wireless facility in Chapter 42, Article IV, Division 3; and
v. 
Any other requirements which may be applicable to the proposed small wireless facility pursuant to the Uniform Small Wireless Facility Deployment Act (Section 67.5110 et seq., RSMo.).
2. 
"Fast-Track" Small Wireless Co-Location. Any wireless facility meeting the requirements of a fast-track as defined by Section 42-431, and as provided in Chapter 42, Article IV, Division 3, may be authorized to be located in the rights-of-way with approval of the Director of Public Works subject to the following additional requirements:
i. 
Attestation that the proposed facilities meet the volumetric requirements to meet the definition of fast-track in Section 42-431;
ii. 
No ground equipment shall be authorized;
iii. 
If the proposed structure the applicant proposes to locate its fast-track is not structurally sound, but the Director finds such to be a desired location, the Director of Public Works can require the applicant to install a new substantially similar structure at its cost; and
iv. 
Compliance with the spacing requirements herein if granted a waiver under the fast-track zoning procedure to install a new structure.
3. 
All Other Wireless In ROW. Any wireless facility located on a utility pole, authority pole, or existing structure as defined by Section 42-431 but not meeting the requirements of: a) small wireless facilities, or b) fast-track small wireless co-location above, may be approved, subject to reasonable and non-discriminatory conditions as may be imposed consistent with the purposes of this Section, only upon approval by the City Administrator upon a determination by the City Administrator, to the extent the same considerations apply to requests for placements of other types of infrastructure deployments, that such wireless facility: 1) does not negatively impact appearance or property values in light of the location, design, and circumstances to be approved, 2) does not create any reasonable safety risk, and 3) complies with all applicable and reasonable zoning, rights-of-way, and other applicable requirements.
c. 
Wireless Facility Compensation. If the small wireless facility or fast track is to be located on a City owned structure or authority pole, but not including the assets of Rolla Municipal Utilities (RMU) an annual payment of one hundred fifty dollars ($150.00) per attachment shall be required. To extent permitted by applicable law, the rates for co-location of facilities on assets owned by RMU shall be established by RMU.
d. 
Application Requirements. Any application including one (1) or more wireless antennas or facilities shall include all applicable and lawful requirements: 1) for installation of any facilities in the rights-of-way as set forth in Articles III through IV; 2) the applicable requirements of this Section; and 3) for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Section 67.5090 et seq., RSMo.), City's zoning code, and other applicable law including written proof of consent of landowner and of structure owner.
(4) 
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 all facilities installed in the ROW after August 28, 2001, in the electronic form that the ROW user keeps such data. 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 in the electronic form that the ROW user keeps such data. Such annual requirement may be waived by the Director of Public Works upon written request.
(5) 
Sight Triangle Maintained. ROW users shall comply with the requirements of sight triangles and nothing shall be erected, placed, planted, or allowed to grow in such a manner as to materially impede vision within the triangular area formed by the rights-of-way lines and a line connecting them at points as reasonably determined by the Director of Public Works from their point of intersection so as to ensure public safety is maintained.
(6) 
No Interference. All ROW users shall construct and maintain its facilities so as not to disrupt or interfere with other users of the rights-of-way including the City. 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 of Public Works, 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. If authorized, 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.
[R.O. 1988 § 36-30; Ord. No. 4469 § 1, 2-4-2019]
(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 the same. Thereafter, the City shall notify the person having facilities in the rights-of-way as soon as practicable.
(c) 
Abandonment Exception. Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided below in this Section.
(d) 
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.
(e) 
No Vested Rights. No action hereunder shall be deemed a taking of property and no person shall be entitled to any compensation therefor. No location of any facilities in the rights-of-way shall be a vested interest or property right.
(f) 
Abandoned Facilities; Removal. A person owning abandoned facilities in the rights-of-way must not later than thirty (30) days of notice or of abandonment remove its facilities and replace or restore any damage or disturbance caused by the removal at its own expense. The Director of Public Works 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.
(g) 
Nuisance. Facilities abandoned or otherwise left unused in violation of Articles III through V 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 usable function, or c) requiring the removal of the facility by the ROW user.