[R.O. 2009 § 510.030; Ord. No. 3663 § 2, 2-23-2017]
A.
Zoning, Safety, And Building Code Compliance. ROW users shall at all times be subject to the lawful exercise of the police powers of the City, including but not limited to all police powers regarding zoning, supervision of the restoration of the rights-of-way, building and safety regulations, and control of the rights-of-way. Installation of all facilities in the rights-of-way are subject to and must be in compliance with all zoning and safety and building code requirements. For applications for installation of any facility in the rights-of-way: (1) the most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the Official Zone District Map, and (2) no application for a wireless facility shall be submitted for approval without attaching the City's consent to use the rights-of-way for the specific construction application in accordance with Chapter 67, RSMo., and compliance with this Chapter, specifically Section 510.050.
B.
Condition Precedent To ROW Permit. Unless
otherwise required by applicable law, no ROW permit may be issued
to any person unless or until such person has a valid franchise, ROW
agreement, or license with the City that authorizes that person's
use of the rights-of-way. Unless prohibited by applicable law, in
addition to any other reason provided herein, the Director and Public
Works Director may deny a ROW permit to any person that does not have
a valid franchise, ROW agreement, or license with the City.
C.
Transferability/Subletting. Except as provided
in this Chapter or as otherwise required by law, no franchise, ROW
agreement, license, or ROW permit may be transferred or assigned without
the written application to and consent of the City based on the requirements
and policies of this Chapter. The City shall not unreasonably withhold
its consent as provided herein, but any costs incurred shall be paid
by the ROW user to the extent allowed by law. In the case of the City
granting consent to transfer, the transferee shall be subject to the
terms and conditions of this Chapter.
D.
Agreement, Franchise, Or License Required.
Except where otherwise authorized or required by applicable law, no
person may own, control, lease, use, or install facilities or other
structures in the rights-of-way without a franchise, ROW agreement,
or license with the City as provided herein and as follows:
1.
Franchise. A franchise shall be obtained
in conformance with all applicable franchise procedures for any ROW
user seeking to use the rights-of-way for the purpose of providing,
transporting, or distributing electricity, gas, water, steam, lighting,
energy, or sewer service to any person or area in the City's limits
and boundaries.
2.
ROW Agreement. A ROW agreement shall
be required for all other ROW users, except as provided herein or
otherwise required by law. Such ROW agreement shall conform to all
applicable laws and requirements, but shall not be subject to procedures
applicable to franchises.
3.
License For Incidental Uses. Persons
desiring to install an incidental use, which includes installation
of temporary structures or minor incidental uses in the rights-of-way,
such as driveway aprons, ingress or egress facilities, and similar
incidental uses that utilize a small area of the rights-of-way and
serves the principal structure, may be permitted without a franchise
or ROW agreement pursuant to a license issued by the Director. The
Director shall have discretion to establish such application form
and the terms and conditions applicable to each license based on the
proposed use consistent with the purposes of this Chapter or as otherwise
established by law, including maintenance, indemnification, bonds,
and insurance requirements. The applicant shall be required to pay
an application fee and an inspection fee as established by the City.
Any person granted a license hereunder shall be subject to the applicable
requirements of this Chapter.
E.
Grant And Nature Of Approval; Terms And
Compensation. The authority granted by the City in any ROW agreement,
license, or franchise shall be for non-exclusive use of the rights-of-way.
Such grant does not in any way limit the continuing authority of the
City through the proper exercise of its statutory powers to adopt
and enforce ordinances necessary to provide for the health, safety,
and welfare of the public. The City specifically reserves the right
to grant, at any time, such additional agreements or other rights
to use the rights-of-way for any purpose and to any other person,
including itself, as it deems appropriate, subject to all applicable
laws. The granting of any agreement, license, or franchise shall not
be deemed to create any property interest of any kind in favor of
the ROW user. All franchises and ROW agreements shall be approved
by ordinance or resolution of the Board of Aldermen on a non-discriminatory
basis provided that the person is in compliance with all applicable
requirements. Licenses may be approved by the Director on a non-discriminatory
basis provided that the person is in compliance with all applicable
requirements. Each franchise, license, and ROW agreement shall include
terms of use and be deemed to incorporate the terms of this Chapter
and other applicable laws of the City, except as may be expressly
stated in such ROW agreement, license, or franchise. The City may
require compensation for use of the rights-of-way or other public
property as may be reasonably required by the Board of Aldermen, subject
to applicable law.
F.
Use Of City Or Third-Party Facilities.
No ROW agreement, franchise, or license shall grant the right to use
facilities owned or controlled by the City or a third party, and no
such use shall occur, nor shall any franchise, ROW agreement or license
excuse such person from first obtaining a pole attachment agreement
or other express consent for such right or use before locating on
facilities controlled or owned by the City or a third party.
G.
Lease Required For Public Lands. Unless
otherwise provided, use or installation of any facilities or other
structure within non-rights-of-way public property of the City shall
be permitted only if a lease agreement or other separate written approval
has been negotiated and approved by the City with such reasonable
terms as the City may require.
H.
No Warranties. The City makes no express
or implied representation or warranty regarding its rights to authorize
the installation or construction of facilities on any particular segment
of rights-of-way and shall not be liable for any damages therefrom.
The burden and responsibility for making all such determinations in
advance of construction or installation shall be entirely upon the
ROW user. The ROW user shall be solely liable for any damages to facilities
or other property due to excavation, facilities maintenance, or other
ROW work performed prior to obtaining the location of all facilities
that have been properly identified prior to such work. The ROW user
shall not make or attempt to make repairs, relocation, or replacement
of damaged or disturbed facilities without the approval of the owner
of the facilities.
I.
ROW User Responsible For Costs. The ROW
user shall be responsible for all reasonable costs borne by the City
that are directly associated with ROW user's installation, maintenance,
repair, operation, use, and replacement of its facilities in the rights-of-way
that are not otherwise accounted for as part of the ROW permit fee
established pursuant to this Chapter, to the extent permitted by law.
All such costs shall be itemized and the City's books and records
related to these costs shall be made available upon request of the
ROW user.
J.
No Cause Of Action Against The City. A
ROW user shall have no damages, remedy, or monetary recourse whatsoever
against the City for any loss, cost, expense, or damage arising from
any of the provisions or requirements of any ROW agreement or franchise,
or because of the enforcement thereof by said City, or from the use
of the rights-of-way. Nothing herein shall preclude the ROW user from
seeking injunctive or declaratory judgment relief against the City
where such relief is otherwise available and the requirements therefor
are otherwise satisfied.
K.
Forfeiture Of Agreement And Privilege.
In case of failure on the part of the ROW user, including its successors
and assigns, to comply with any of the provisions of this Chapter
or a ROW agreement, franchise, or license, or if the ROW user, its
successors and assigns should do or cause to be done any act or thing
prohibited by or in violation of this Chapter or the terms of the
authorization of such use, or otherwise loses authority to provide
its service in the City, the ROW user, its successors and assigns
shall forfeit all rights and privileges permitted by any ROW agreement,
franchise, or license, and all rights hereunder shall cease, terminate,
and become null and void, provided that said forfeiture shall not
take effect until the City shall carry out the following proceedings:
Before the City declares the forfeiture or revocation of a ROW agreement,
franchise, or license, it shall first serve a written notice upon
the person setting forth in detail the neglect or failure complained
of, and the person shall have thirty (30) days thereafter, or such
other reasonable period established by the Director, in which to cure
the default by complying with the conditions of the such ROW agreement,
franchise, or license and fully remedying any default or violation.
If at the end of such period, the City determines that the conditions
have not been complied with and that the person did not reasonably
and in the public interest require more than the established time
to cure the default, the City shall take action by an affirmative
vote of the Board of Aldermen present at the meeting and voting to
terminate the ROW agreement, franchise, or license, setting out the
grounds upon which said authorization is to be forfeited or revoked.
Nothing herein shall prevent the City from invoking any other remedy
or from declaring immediate forfeiture where the default is incapable
of being cured by the ROW user, including where such defaults or violations
have repeatedly occurred.
L.
No Waiver. No action or omission of the
City shall operate as a future waiver of any rights of the City under
this Chapter. Except where rights are expressly granted or waived
by a ROW permit, ROW agreement, franchise, or license they are reserved,
whether or not expressly enumerated.
[R.O. 2009 § 510.040; Ord. No. 3663 § 2, 2-23-2017]
A.
Application Requirements.
1.
Application Form. An application
for a franchise or ROW agreement shall be submitted on a form provided
by the City to the Director in writing and shall include all such
information as is required herein and all such information required
to determine compliance with this Chapter. The ROW user shall be responsible
for accurately maintaining the information in the application during
the term of any franchise or ROW agreement and shall be responsible
for all costs incurred by the City due to the failure to provide or
maintain as accurate any application information required herein.
Each application shall at minimum contain the following information,
unless otherwise waived by the Director:
a.
The identity and legal status of
the proposed applicant;
b.
The name, address, email, fax, and
telephone number of each officer, agent, or employee responsible for
the accuracy of the application. Each officer, agent, or employee
shall be familiar with the local facilities of the applicant, shall
be the person(s) to whom notice shall be sent, and shall be responsible
for facilitating all necessary communications, including, but not
limited to, certification to the City of any material changes to the
information provided in such completed application during the term
of any franchise or agreement;
c.
The name, address, email, fax, and
telephone number of a local officer whom the City may notify or contact
at any time (i.e., twenty-four (24) hours per day, seven (7) days
per week) concerning ROW work;
d.
Proof of any necessary permit, license,
certification, grant, registration, franchise, or any other authorization,
required by any appropriate governmental entity, including, but not
limited to, the FCC or the PSC;
e.
A description of applicant's intended
use of the rights-of-way, including such information as to proposed
services so as to determine the applicable Federal, State, and local
regulatory provisions as may apply to such ROW user;
f.
A list of authorized agents, contractors,
and subcontractors eligible to obtain ROW permits on behalf of the
applicant. An application may be updated to add such person at the
time of ROW permit application if the updated information on the application
is submitted by an authorized representative of the applicant;
g.
Information sufficient to determine
the amount of net assets of the applicant;
h.
Information sufficient to determine
whether the applicant is subject under applicable law to franchising,
service regulation, payment of compensation for the use of the rights-of-way,
taxation, or other requirements of the City;
i.
Any request including one (1) or more antennas shall also include all requirements for installation of antennas and wireless facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Sections 67.5090, et seq. RSMo.), Chapter 430, Art. VIII, Wireless Communications Facilities, of this Code, and other applicable laws or ordinances; and
j.
Such other information as may be
reasonably required by the City to determine requirements and compliance
with applicable regulations.
k.
Deposit Fees. Each such application
for a franchise or ROW agreement shall be accompanied by a two hundred
dollar ($200.00) application deposit fee for review, documentation,
and approval of such agreement or franchise to recover any actual
costs anticipated and incurred by the City in reviewing, documenting,
or negotiating such agreement or franchise, provided that no costs
shall be included if such inclusion is prohibited by applicable law
as to that person. If the actual costs are thereafter determined to
be less than the application deposit fee, such amount shall be returned
to the person, after written request therefrom; if the actual costs
exceed the application deposit fee, such person shall pay such additional
amount prior to issuance of any final City approval after written
notice from the City, subject to applicable law.
2.
Standard For Approval Or Renewal.
In reviewing an application for a new or renewal ROW agreement or
franchise, the City may consider prior conduct of the person in performance
of its obligations or compliance with the City's ordinances in the
past, or the existence of any outstanding violations or deficiencies.
The City may deny or condition any ROW agreement or franchise where
the proposed use would interfere with the public use of the rights-of-way
or otherwise conflict with the legitimate public interests of the
City, to fulfill the requirements and objectives of this Chapter or
as otherwise provided by law.
3.
Approval Process. After submission
by the applicant of a duly executed and completed application, application
deposit fee, and executed franchise or ROW agreement as may be provided
by the Director or as modified by the Director in review of the specific
circumstances of the application, all in conformity with the requirements
of this Chapter and all applicable laws, the Director shall submit
such agreement to the Board of Aldermen for approval. Upon determining
compliance with this Chapter, the Board of Aldermen may authorize
execution of the franchise or ROW agreement (or a modified agreement
otherwise acceptable to the City consistent with the purposes of this
Chapter) and such executed franchise or ROW agreement shall constitute
consent to use the rights-of-way; provided that nothing herein shall
preclude the rejection or modification of any executed franchise or
ROW agreement submitted to the City to the extent applicable law does
not prohibit such rejection or modification, including where necessary
to reasonably and in a uniform or non-discriminatory manner reflect
the distinct engineering, construction, operation, maintenance, public
work, or safety requirements applicable to the person or use.
[R.O. 2009 § 510.050; Ord. No. 3663 § 2, 2-23-2017]
A.
No Interference. Every ROW user shall construct
and maintain its facilities so as not to interfere with other users
of the rights-of-way. The ROW user shall not interfere with or alter
the facilities of the City or other ROW user without their consent
and shall be solely responsible for such. Except as may otherwise
be provided or as determined by the Director and Public Works Director,
the ROW user shall, prior to commencement of ROW work, execute a City-approved
resident-notification plan to notify residents affected by the proposed
work. All construction and maintenance by the ROW user or its subcontractors
shall be performed in accordance with industry standards. All facilities
and other structures shall be installed and located to cause minimum
interference with the rights and convenience of property owners, ROW
users, and the City. Facilities and other structures shall not be
placed where they will disrupt or interfere with other facilities,
structures, or public improvements or obstruct or hinder in any manner
the various utilities serving the residents and businesses in the
City or public improvements. Above-ground facilities shall be constructed
and maintained in such a manner so as not to emit any unnecessary
or intrusive noise. When reasonable and necessary to accomplish such
purposes, the Director and Public Works Director may require as alternatives
to the proposed ROW work either less disruptive methods or different
locations for facilities, provided that any required alternative:
B.
Subordinate Use. The ROW user's use shall
be, in all situations, subordinate and subject to public municipal
use. In situations where multiple users are in the same location,
first the municipal use shall have priority followed by persons with
a valid and current ROW agreement, franchise, or license with the
City, followed by all others.
C.
Wireless Antennas And Facilities. Pursuant
to City authority, including Section 67.1830.6(f), RSMo., and the
Uniform Small Wireless Facility Deployment Act (Sections 67.5110,
et seq., RSMo.), and to properly manage the limited space in the City's
right-of-way, minimize obstructions and interference with the use
of the right-of-way by the public, and to ensure public safety, while
also seeking to facilitate delivery of broadband technologies to City
residents and businesses, wireless facilities shall be permitted in
the right-of-way in compliance with the requirements applicable to
other facilities and users in the right-of-way, and subject to the
additional requirements set forth in this Section for wireless antennas
and facilities.
[Ord. No. 3761 § 2, 12-18-2017; Ord. No. 3888, 12-20-2018]
1.
General Conditions. Any wireless facilities shall be subject to conditions relating to the location (including prohibited or limited locations), design, height, appearance, safety, radio frequency, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the City to address changing infrastructure, technology, and uses of the right-of-way and/or City facilities. A wireless facility shall not be located or installed in a manner that results in interference with or impairs the operation of existing utility facilities or City or third-party attachments. Wireless antennas or facilities shall further comply with: (1) all applicable requirements for installation of any facilities in the ROW as set forth in this Chapter including a ROW permit, (2) the requirements of this Section, and (3) requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Sections 67.5090, et seq., RSMo.), Uniform Small Wireless Facility Deployment Act (Sections 67.5110, et seq., RSMo.), applicable zoning, building, and other regulations and approvals, specifically including Chapter 430, Art. VIII, Wireless Communications Facilities.
a.
Specific Conditions.
(1)
Small Wireless Facilities. Any "small wireless facility" meeting the requirements for "small wireless facility" as defined by Section 430.570 and as provided in Section 430.610 of the Zoning Code shall be authorized to be located in the right-of-way with approval of the Director subject to the following additional requirements:
(a)
If proposing to install
a new utility pole, compliance with the spacing requirements herein:
(b)
Compliance with Section
67.5113.3(9), RSMo., to the satisfaction of the City;
(c)
For collocations on
City utility poles, all make-ready estimates for the utility pole,
including replacement costs where necessary for the safety and reliability
of the utility pole, as determined by the City;
(d)
Attestation that the proposed "small wireless facility" meets the volumetric requirements to meet the definition of a "small wireless facility" in Section 430.570 of the Zoning Code; and
(e)
Any other requirements
which may be applicable to the proposed "small wireless facility"
pursuant to the Uniform Small Wireless Facility Deployment Act (Sections
67.5110, et seq., RSMo.).
(2)
"Fast-Track" Small Wireless Collocation. Any wireless facility meeting the requirements of a "fast-track" small wireless facility as defined by Sections 430.570 and 430.610 of the Zoning Code, may be authorized to use and be located in the right-of-way with approval of the Director, subject to the following additional requirements:
(a)
Attestation that the proposed facilities meet the volumetric requirements to meet the definition of "fast-track" in Section 430.570 of the Zoning Code;
(b)
No ground equipment
shall be authorized, unless placed underground;
(c)
No "fast-track" facility
shall be located in a manner which obstructs or causes a safety concern
for vehicle or pedestrian traffic;
(d)
If the proposed structure
where the applicant proposes to locate its "fast-track" facility is
not structurally sound, but the Director finds such to be a desired
location, the Director can require the applicant to install a new
substantially similar structure at its cost; and
(e)
Compliance with the
spacing requirements herein if granted a waiver under the "fast-track"
zoning procedure to install a new structure.
(3)
All Other Wireless In Right-Of-Way. Any wireless facility located on an "existing structure," as defined by Section 430.570 but not meeting the requirements of Subsection (C)(1)(a)(1), Small Wireless Facilities, or Subsection (C)(1)(a)(2), "Fast-Track" Small Wireless Collocation, above, may be approved, subject to reasonable and non-discriminatory conditions as may be imposed consistent with the purposes of this Section, only upon approval by the Board of Aldermen upon a determination by the Board of Aldermen that such wireless facility is:
(a)
In the public interest
to provide a needed service to persons within the City;
(b)
Cannot feasibly meet
all of the requirements but varies from such requirements to the minimum
extent necessary;
(c)
Does not negatively
impact appearance or property values in light of the location, design,
and circumstances to be approved;
(d)
Does not create any
reasonable safety risk; and
(e)
Complies with all applicable
zoning, right-of-way, and other applicable requirements.
2.
Wireless Facility Compensation Requirements.
If the "small wireless facility" or "fast-track" is to be located
on a City owned structure in the ROW, an annual payment of one hundred
fifty dollars ($150.00) per attachment shall be required.
3.
Application Requirements. Any application
including one (1) or more wireless antennas or facilities shall include
all applicable and lawful requirements for:
a.
Installation of any facilities in
the right-of-way as set forth in this Section;
b.
The requirements of this Subsection;
and
c.
Requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Section 67.5090, et. seq., RSMo.), Article VIII of Chapter 430, and other applicable law, including written proof of consent of the landowner and of the structure owner.
D.
Underground Facilities And Above-Ground
Facilities.
[Ord. No. 3888, 12-20-2018]
1.
Underground And Collocation Of Facilities
Required; Exceptions. In conjunction with the City's long-standing
policy favoring underground facilities, no person may erect, construct,
or install facilities above the surface of the right-of-way without
the written permission of the City based on good cause established
by applicant and found by the City, except as provided for herein
or where prohibited by applicable law. In addition, all new fiber
optics, coaxial, and similar cable facilities shall be located within
existing conduit, trenches, or other facilities to minimize unnecessary
use of right-of-way space, reduce potential existing or future interference
and obstructions, and to reduce the cost to the public or others therefrom,
and to maximize the public's ability to use and license appropriate
private or public uses of the right-of-way in the public interest
except where preempted by law or where good cause is established and
written permission granted by the City. Such permission may be granted
by the Board of Aldermen when other similar facilities exist above-ground
and conditions are such that underground construction is impossible,
impractical, or unfeasible, as determined by the City, and when in
the City's judgment the above-ground construction has minimal aesthetic
impact on the area where the construction is proposed. Where reasonable
and appropriate and where adequate right-of-way exists, the ROW user
shall place above-ground facilities underground in conjunction with
City capital improvement projects and/or at specific locations requested
by the City provided that such placement is practical, efficient,
and economically feasible. New utility poles and related ground mounted
equipment shall be permitted to be installed above ground; provided,
however, that to ensure unobstructed pedestrian use and City maintenance
of the ROW and minimize visual obstructions for vehicular traffic,
a new utility pole and any ground mounted equipment related to that
utility pole or the equipment thereon shall not be installed within
one hundred and fifty (150) feet of another utility pole or other
ground mounted equipment on the same side of the ROW. A replacement
utility pole that is installed in lieu of an existing utility pole
and is installed within ten (10) feet of the existing utility pole,
shall not be considered a new utility pole subject to the spacing
requirements herein. Such spacing regulations as applied to that specific
site may be altered by the Board of Aldermen.
2.
Notice Required. In the case of new
construction or property development, the developer or property owner
shall give reasonable written notice, to other potential ROW users
as directed by the City, of the particular date on which open trenching
will be available for installation of facilities. Costs of trenching
and easements required to bring facilities in the development shall
be borne by the developer or property owner; except that if the facilities
are not installed within five (5) business days of the date the trenches
are available, as designated in the notice given by the developer
or property owner, then once the trenches are thereafter closed, the
cost of new trenching shall be borne by the person installing the
facilities.
3.
Excluded Facilities. To the extent
permitted by applicable law, the Director and Public Works Director
may designate certain locations or facilities in the right-of-way
to be excluded from use by the applicant for its facilities. In the
event such exclusions conflict with the reasonable requirements of
the ROW user, the City will cooperate in good faith with the ROW user
to attempt to find suitable alternatives, if available, provided that
the City shall not be required to incur financial cost nor require
the City to acquire new locations for the ROW. Such exclusions, include,
but are not limited to:
a.
Ornamental or similar specially designed
streetlights;
b.
Designated historic areas;
c.
Facilities, equipment, structures,
or locations that do not have electrical service adequate or appropriate
for the proposed facilities or cannot safely bear the weight or wind
loading thereof; provided, however, that a wireless provider, as defined
by Section 67.5111, RSMo., shall be permitted to replace decorative
poles when necessary to collocate a small wireless facility so long
as any such replacement pole reasonably conforms to the design aesthetics
of the decorative poles being replaced;
d.
Facilities, equipment, structures,
or locations that in the reasonable judgment of the Director and Public
Works Director are incompatible with the proposed facilities or would
be rendered unsafe or unstable by the installation; and
e.
Facilities, equipment, structures,
or locations that have been designated or planned for other use or
are not otherwise available for use by the applicant due to engineering,
technological, proprietary, legal, or other limitations or restrictions.
4.
Location; Design. The design, location,
and nature of all facilities shall be subject to the review and approval
of the Director and Public Works Director. Such review shall be on
a non-discriminatory basis in application of City policy and approvals
shall not be unreasonably withheld. Above-ground facilities shall
be a neutral color and shall not be bright, reflective, or metallic.
Black, gray, and tan shall be considered neutral colors, as shall
any color that blends with the surrounding dominant color and helps
to camouflage the facilities. Facilities shall be located in such
a manner as to reduce or eliminate their visibility. All underground
mains and service lines with ancillary appurtenances thereto shall,
wherever practicable, be placed between the curb or pavement edge
and sidewalk line in the section of the street known as the parkway.
Where the pavement and sidewalk occupy the entire street, the underground
facilities shall be located under the sidewalk, unless otherwise directed
by the City. City height limitations, applicable zoning restrictions,
and general City policies with regard to all users of the right-of-way
shall also be applicable to all facilities. The Director may establish
such regulations or policies as may be deemed necessary or appropriate
to affect this provision.
5.
Exception. If the application of
this Section excludes locations for above-ground facilities to the
extent that the exclusion conflicts with the reasonable requirements
of the applicant or State or Federal law, the Director and Public
Works Director shall cooperate in good faith with the applicant to
attempt to find suitable alternatives, but the City shall not be required
to incur any financial cost or to acquire new locations for the applicant.
E.
Relocation Of Equipment And Facilities.
1.
City Required Relocation. The ROW
user shall promptly remove, relocate, or adjust any facilities located
in the rights-of-way as directed by the City when such is required
by public necessity, or public convenience and security require it,
or such other findings in the public interest that may require relocation,
adjustment, or removal at the cost of the ROW user. Such removal,
relocation, or adjustment shall be performed by the ROW user within
the time frames established by the City and at the ROW user's sole
expense without any expense to the City, its employees, agents, or
authorized contractors and shall be specifically subject to rules,
regulations, and schedules of the City pertaining to such.
2.
Emergency Exception. In the event
of an emergency or where construction equipment or facilities create
or are contributing to an imminent danger to health, safety, or property,
the City may, to the extent allowed by law, remove, re-lay, or relocate
such construction equipment or the pertinent parts of such facilities
without charge to the City for such action or for restoration or repair.
The City shall attempt to notify the person having facilities in the
rights-of-way prior to taking such action, but the inability to do
so shall not prevent same. Thereafter, the City shall notify the person
having facilities in the rights-of-way as soon as practicable.
3.
Third-Party Relocation. A person
having facilities in the rights-of-way shall, on the reasonable request
of any person, other than the City, holding a validly issued ROW permit,
after reasonable advance written notice, protect, support, or temporarily
disconnect or relocate facilities to accommodate such person and the
actual cost, reasonably incurred, of such actions shall be paid by
the person requesting such action. The person having facilities in
the rights-of-way taking such action may require such payment in advance.
4.
Abandonment Exception. Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (F) of this Section.
5.
ROW User Responsible For Damage.
Any damages suffered by the City, its agents, or its contractors to
the extent caused by the ROW user's failure to timely relocate, remove,
or adjust its facilities, or failure to properly relocate, remove,
or adjust such facilities, shall be borne by the ROW user. Where the
ROW user shall fail to relocate facilities as required by the City,
the City may, but shall not be required to, upon notice to ROW user
remove the obstructing facilities with or without further delay and
ROW user shall bear all responsibility and liability for the consequences
therefrom, and the City shall bear no responsibility to ROW user or
others for damage resulting from such removal.
6.
No Vested Rights. No action hereunder
shall be deemed a taking of property and no person shall be entitled
to any compensation therefor. No location of any facilities in the
rights-of-way shall be a vested interest or property right.
F.
Removal, Abandonment, And Transfer Of Facilities.
1.
Abandonment. If a person having facilities
in the rights-of-way:
a.
Installs the facilities in the rights-of-way
without having complied with the requirements of this Chapter, or
b.
Abandons the facilities,
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the City may require the removal
of the facilities, remove the facilities at the expense of the person
having facilities in the rights-of-way, take possession of the facilities
in accordance with applicable law, or require the transfer of the
facilities as provided herein.
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2.
Removal Required. If the City requires
removal of the facilities, the person shall obtain a ROW permit and
shall abide by all requirements of this Chapter. The liability, indemnity,
insurance, and bonding requirements required herein shall continue
in full force and effect during and after the period of removal and
restoration and until full compliance by the person with the terms
and conditions of the ROW permit and the requirements of this Chapter.
3.
Failure To Remove — Abandonment.
If the person fails to remove the facilities after having been directed
to do so, the City may, to the extent permitted by law, have the removal
done at the person's expense. Alternatively, the City may permit the
abandonment, without removal of the facilities, if the Director and
Public Works Director determines that abandonment is not likely to
prevent or significantly impair the future use, repair, excavation,
facilities maintenance, or construction of the rights-of-way.
4.
Failure To Remove — Transfer.
If the person fails to remove the facilities after having been directed
to do so, the City may, to the extent permitted by law, decide that
the ownership of the facilities should be transferred to the City
or to such person as directed by the City. In either case the owner
of the facilities shall submit a written instrument, satisfactory
in form to the City, transferring to the City, ownership of the facilities.
The City may sell, assign, or transfer all or part of the facilities
so transferred.
5.
Notice Required. Except when safety
requires it, the City shall not remove or seek to possess or transfer
the facilities until thirty (30) days have passed following written
notice by the Director to the person having facilities in the rights-of-way
of the City's intent to so act. The Director may choose not to act
on good cause shown by the person having facilities in the rights-of-way.
G.
City Facilities. To the extent permitted
by law, during ROW work by a ROW user, the City shall have the right
to install and to thereafter maintain, at its own cost, any parallel
City facilities of its own that do not unreasonably interfere with
the operations of other facilities.
H.
Tree Trimming. Upon ten (10) days' written
notice and with the supervision of the City or as otherwise provided
by law or agreement, the City may permit a ROW user to trim trees
that overhang rights-of-way of the City so as to prevent the branches
of such trees from coming in contact with facilities in the ROW, at
its own expense, subject to the supervision and direction of the City.
Nothing in this paragraph shall authorize the trimming of trees on
private property without permission of the property owner. All cut
materials shall be properly disposed. Unless otherwise approved in
writing by the City, a ROW user shall not remove, cut or damage any
trees or their roots in the rights-of-way.
I.
Crossing Curbs.
1.
Operator Prohibition. No person who
operates or drives any heavy equipment or other vehicle used for construction
purposes shall traverse, cross or otherwise drive over, or attempt
to traverse, cross or otherwise drive over, a curb, sidewalk, or crossing
in the rights-of-way at any point other than a properly installed
curb cut, unless the applicable curb, sidewalk, or crossing is sufficiently
and fully protected by the laying down of planks or materials which
will prevent injury thereto.
2.
Property Owner Prohibition. No owner
or occupant of any real property shall cause, authorize, or allow
any person who operates or drives any heavy equipment or other vehicle
used for construction purposes to traverse, cross, or otherwise drive
over, or attempt to traverse, cross, or otherwise drive over, a curb,
sidewalk, or crossing in the rights-of-way on or abutting the real
property of such owner or occupant at any point other than a properly
installed curb cut, unless the applicable curb, sidewalk, or crossing
is sufficiently and fully protected by the laying down of planks or
materials which will prevent injury thereto.
3.
Responsible For Damages. Any person who causes damage to the curb, sidewalk, crossing or rights-of-way as a result of the traversing, crossing, or otherwise driving over, or attempting to traverse, cross, or otherwise drive over the curb, sidewalk, or crossing with any heavy equipment or other vehicle used for construction purposes shall be held responsible to the City for the cost of repairing any break or injury and be in violation of Section 205.1040 (Property Damage), as well as this Chapter.
J.
Landscaping In Rights-Of-Way. Shrubs, bushes,
flowers, or ornamental grasses may be permitted within the rights-of-way
as long as such does not obstruct the view of vehicle or pedestrian
traffic. New trees shall not be authorized to be planted within the
rights-of-way. In the event the person severely disturbs or damages
any tree or other landscaping in the rights-of-way to the detriment
of its health and safety, the City shall remove such vegetation to
protect the general welfare of the public at the sole cost of the
person that severely damaged of disturbed the same. If a natural event
shall severely disturb or damage a tree or other landscaping in the
rights-of-way, the City shall remove the same but shall not be obligated
to replace the same. In reviewing any ROW permit application, the
City may require the applicant to directionally bore around or otherwise
avoid disturbance to any tree or landscaping, existing facility, or
other protected area in the rights-of-way.
[R.O. 2009 § 510.060; Ord. No. 3663 § 2, 2-23-2017]
A.
Performance And Maintenance Bonds.
1.
Bond Required. Prior to any ROW work, a ROW user shall establish in the City's favor a performance and maintenance bond in an amount to be determined by the Director to guarantee the restoration of the rights-of-way as more fully provided in Section 510.080(B)(6). The bond shall continue in full force and effect for a period of forty-eight (48) months following completion of the work. The Director may waive this requirement when the work involves, as determined in the sole discretion of the Director, no or only minor disruption or damage to the rights-of-way. The bond requirement herein shall not apply to a ROW user who has on file with the City an affidavit certifying that it has twenty-five million dollars ($25,000,000.00) in net assets and is otherwise therefore so exempted.
2.
Failure To Satisfactorily Complete
Restoration. If a ROW user fails to complete the ROW work in a safe,
timely, and competent manner or if the completed restorative work
fails without remediation within the time period for the bond (as
determined by the Director and Public Works Director), then after
notice and a reasonable opportunity to cure, there shall be recoverable,
jointly and severally from the principal and surety of the bond, any
damages or loss suffered by the City as a result, including the full
amount of any compensation, indemnification, or cost of removal or
abandonment of any property of the ROW user and the cost of completing
work in or restoring the rights-of-way, up to the full amount of the
bond. The City may also recover against the bond any amount recoverable
against a security fund or letter of credit where such amount exceeds
that available under a security fund or letter of credit.
3.
Release Of Bond. Upon completion
of ROW work to the satisfaction of the Director and Public Works Director
and upon lapse of the bond period, including any extension by the
Director, the City shall release the bond.
4.
Bond Terms. The bond shall be issued
by a surety with an "A" or better rating of insurance in Best's Key
Rating Guide, Property/Casualty Edition, shall be subject to the approval
of the City's Attorney and shall contain the following endorsement:
"This bond may not be cancelled or allowed to lapse until sixty (60)
days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
5.
Exceptions. In lieu of the bond required
herein, the ROW user may establish in the City's favor such other
security as the Director may determine to be commensurate with the
noted bonding requirements, including, but not limited to, an annual
bond to be maintained in the minimum amount of twenty-five thousand
dollars ($25,000.00). Additionally, in accordance with Section 67.5121(4),
RSMo., the bonds required for "small wireless facilities" as defined
in the Uniform Small Wireless Facility Deployment Act shall not exceed
one thousand five hundred dollars ($1,500.00) per "small wireless
facility" or more than seventy-five thousand dollars ($75,000.00)
for all "small wireless facilities" within the ROW of a ROW user.
This exception to the City's bonding requirements shall only apply
as related to such "small wireless facilities" and shall not otherwise
alter the obligations of a ROW user to provide appropriate bonds to
the City for any other activities or operations.
[Ord. No. 3888, 12-20-2018]
