City of Republic, MO Rights-Of-Way Management

Applicability. Except as provided for herein and where limited by applicable law, this Chapter shall apply to all Excavations and use, construction, operation, and Maintenance of Facilities or structures, in the ROW of the City. No Person shall commence or continue with the operation of any Facilities or structures in the ROW except as provided and in compliance with this Chapter. Because numerous types of users and uses of the ROW may be subject to various or changing regulatory schemes under Federal or State law, any such limitation or qualification that may be applicable to less than all users and uses of the ROW are not duplicated herein, but are nevertheless incorporated herein, whenever application is so required by law, including but not limited to applicable provisions of Chapter 67, RSMo., and other applicable State and Federal law.

Construction Specifications. All public improvements including modifications to existing Rights-of-Way and driveways within the City of Republic, or within subdivisions intended to be annexed into the City of Republic, shall be constructed in conformance with the latest edition of the "Construction Specifications for Public Improvements, City of Republic" on file at the offices of the City or Republic Planning and Development Department and incorporated herein by reference.

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furthermore, if any Section, Subsection, sentence, clause, phrase, or portion of this Chapter is now or in the future superseded or preempted by State or Federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and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.

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Editor's Note: Former Chapter 515, Rights-of-Way Management, containing Sections 515.010 through 515.100, was repealed 10-17-2017 by Ord. No. 17-40.

Section 515.020 Definitions.

[Ord. No. 17-40 § 2, 10-17-2017]

For purposes of this Chapter, the following terms, phrases, words, and their derivatives shall have the meanings set forth in this Section, unless the context clearly indicates that another meaning is intended.

ABANDONED: Any equipment, materials, apparatuses, devices, or Facilities that are: 1) declared abandoned by the owner of such equipment or Facilities, 2) no longer in active use and the owner of such equipment or Facilities fails to respond within thirty (30) days to a written notice sent by the City, or 3) 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 applying for a ROW Use Agreement, Franchise, License, or any permit or other authorization to install, maintain, repair or otherwise physically access Facilities in the ROW.

CITY: The City of Republic, Missouri.

COMMUNICATIONS SERVICE: The transmission via Facilities, in whole or in part, of any writing, 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 Section 67.2677, RSMo. The term "Communications Service" does not include the rental of conduit or physical Facilities.

DIRECTOR: The Public Works Director or his/her designee.

EXCAVATION PERMIT: A permit authorizing Excavation for the construction or installation of Facilities in the City's Rights-of-Way.

EXCAVATION, EXCAVATING, or EXCAVATE: Any act by which earth, asphalt, concrete, sand, gravel, rock or any other material in or on the ground is cut into, dug, uncovered, removed, or otherwise displaced, by means of any tools, equipment or explosives, except as excluded by applicable law.

FACILITIES MAINTENANCE or MAINTENANCE: The construction, installation, repair, upgrade, or other physical access to the Facility in the ROW that does not involve Excavation.

FACILITIES MAINTENANCE PERMIT: A permit issued by the City for the ROW User to provide Maintenance to its Facilities or otherwise perform work in the ROW that does not involve Excavation but requires physical access to the Facilities in the ROW.

FACILITIES or FACILITY: Any equipment, installation, 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 lawful vehicular parking or use or lawful minor incidental uses such as mailboxes, driveway aprons, private utility connections or other incidental Facilities which may be permitted by license issued by the Director as provided herein.

FCC: The Federal Communications Commission.

FRANCHISE: The rights and obligations extended by the City to 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 within the City's limits and boundaries.

GOVERNING BODY: The City Council of the City.

LICENSE: The rights and obligations extended by the City to a Person to use and occupy the Rights-of-Way for the purpose of installing temporary Facilities in the Rights-of-Way or incidental uses such as ingress and egress facilities, lateral utility lines, mailboxes or driveway aprons.

PERMIT: An Excavation Permit or a Facilities Maintenance Permit.

PERSON: Any corporation, partnership, proprietorship, individual, organization, governmental entity or any natural person.

PSC: The Missouri Public Service Commission.

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 herein or by law.

RIGHTS-OF-WAY USE AGREEMENT or ROW USE AGREEMENT: The rights and obligations extended by the City to a Person to occupy the ROW for the purpose of providing any form of Communications Service to any Person or area within the City's limits and boundaries, or any other Person desiring to use the ROW for which a Franchise or License is not applicable, subject to the regulations and requirements herein.

ROW USER: All Persons and entities, whether a PSC registered utility or otherwise, owning, controlling, leasing, maintaining, using or installing Facilities in the Rights-of-Way of the City, not otherwise expressly exempted.

Section 515.030 ROW Use Agreement, License Or Franchise Required; Requirements.

[Ord. No. 17-40 § 2, 10-17-2017]

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

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 within the City's limits and boundaries.

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 only to Franchises.

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 ingress or egress facilities, and similar incidental uses, that utilize a small area of the Rights-of-Way and serves the principal structure, may be permitted without a Franchise or Rights-of-Way Use Agreement pursuant to a License issued by the Director. Mailboxes, driveway aprons, and landscaping within the Rights-of-Way and having typical appearance and dimensions are permitted without the need for a License, Franchise, or Rights-of-Way Use Agreement so long as they do not cause an interference with vehicular or pedestrian use of the Rights-of-Way and comply with all other applicable requirements for ROW use except as may be expressly waived in writing by the Director. The Director shall have discretion to establish such application, requirements, and conditions applicable to such uses (including insurance, bonding, and other requirements) consistent with the purposes of this Chapter or as otherwise established by law. Any Person granted a License hereunder shall be subject to the applicable requirements of this Chapter.

Grant And Nature Of Approval; Terms And Compensation. The authority granted by the City in any ROW Use Agreement, License or Franchise shall be for non-exclusive use of the Rights-of-Way. Such grant does not in any way limit the continuing authority of the City through the proper exercise of its statutory powers to adopt and enforce ordinances necessary to provide for the health, safety, and welfare of the public. The City specifically reserves the right to grant, at any time, such additional agreements or other rights to use the Rights-of-Way for any purpose and to any other Person, including itself, as it deems appropriate, subject to all applicable laws. The granting of any ROW Use Agreement, License or Franchise 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. All Franchises and ROW Use Agreements shall be approved by ordinance or resolution of the Governing Body 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 Use Agreement shall include terms of use and be deemed to incorporate the terms of this Chapter and other applicable laws of the City, except as may be expressly stated in such Use Agreement, License or Franchise. The City may require compensation for use of the ROW or other public property as may be reasonably required by the Governing Body, subject to applicable law.

No Warranty. The City makes no express or implied representation or warranty regarding its rights to authorize the installation or construction of Facilities on any particular segment of Rights-of-Way and shall not be liable for any damage therefrom. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon the 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 within the work area. 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.

Use Of City Or Third-Party Facilities. No ROW Use Agreement, Franchise, or License shall grant the right to use Facilities owned or controlled by the City or a third party, and no such use shall occur, without the express written consent of such party (on file with the City and subject to other applicable requirements), 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.

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

Condition Precedent To Permit. Unless otherwise required by applicable law, no Permit may be issued unless or until such Person has a valid Franchise, License or Rights-of-Way Use Agreement with the City.

Transferability. Except as provided in this Chapter or as otherwise required by law, no Franchise, ROW Use Agreement, or Permit may be transferred or assigned without the written application to and consent of the City based on the requirements and policies of this Chapter. The City shall not unreasonably withhold its consent as provided herein, but any costs incurred shall be paid by the ROW User to the extent not prohibited by applicable law.

Forfeiture Of Agreement And Privilege. In case of failure on the part of the ROW User, including its successors or assigns to comply with any of the provisions of this Chapter or a ROW Use Agreement, Franchise, License or other authorization, 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 this Chapter and any ROW Use Agreement, Franchise, License or other authorization, and all rights hereunder shall cease, terminate and become null and void, provided that, unless other procedures are specifically provided in such franchise or other authorization which shall then control, said forfeiture shall not take effect until the City shall carry out the following proceedings: Before the City declares the forfeiture or revocation of a Rights-of-Way Use Agreement, Franchise, License or other authorization, 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 Governing Body, in which to cure the default by complying with the conditions of the ROW Use Agreement, Franchise, License or other authorization or requirement 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 thirty (30) days to cure the default, the City shall take action by an affirmative vote of the Governing Body present at the meeting and voting to terminate the ROW Use Agreement, Franchise, License or other authorization, setting out the grounds upon which said agreement or other 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.

No Interference. All ROW Users shall construct and maintain their Facilities so as not to interfere with other users of the Rights-of-Way. Except as may otherwise be provided or as determined by the Director, the ROW User shall, prior to commencement of work, execute a City-approved resident-notification plan to notify residents affected by the proposed work. All construction and Maintenance by the ROW User or its subcontractors shall be performed in accordance with industry standards. The ROW User shall, in the performance of any Excavation, Facilities Maintenance, Relocation and/or removal of any of its Facilities, limit such work to that necessary for efficient operation and 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.

Priority Of Uses. ROW User's use shall be in all situations subordinate and subject to public municipal use. In situations where multiple users are within the same location, first the municipal use shall have priority followed by Persons with a valid and current Rights-of-Way Use Agreement or franchise executed with the City, followed by all others.

Section 515.040 Application For Franchise Or ROW Use Agreement Required.

[Ord. No. 17-40 § 2, 10-17-2017]

Application Required. An Applicant shall submit a completed application for a Franchise or Rights-of-Way Use Agreement on such form provided by the City. 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. The application shall provide information necessary to determine compliance with this Chapter, including but not limited to:

Identity and legal status of the Applicant;

Name, address, telephone number, and email address 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 notices 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 ROW Use Agreement;

Name, address, telephone number, and email address of the local representative of the Applicant who shall be available at all times to act on behalf of the Applicant in the event of an emergency;

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

Description of the 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 User;

A list of authorized agents, contractors and subcontractors eligible to obtain Permits on behalf of the Applicant. The list may be updated to add such Person at the time of Permit application if the updated information on the application is submitted by an authorized representative of the Applicant;

Information sufficient to determine the amount of net assets of the Applicant;

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;

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.), Article XI of Chapter 405 of this Code, or other applicable laws; and

10.

Such other information as may be reasonably required by the Director to determine requirements and compliance with applicable regulation.

Application Deposit Fee. A five hundred dollars ($500.00) application deposit fee for review, documentation, and approval of such Use Agreement or Franchise shall be established by the City to recover any actual costs anticipated and incurred by the City in reviewing, documenting, or negotiating such ROW Use 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. Such application deposit fee shall be provided to the City at the time of submission of the application to the City.

Approval Process. Applications for ROW Use Agreements or Franchises may be approved, denied, or approved with conditions consistent with requirements of applicable law or other applicable requirements as may be necessary to fulfill the requirements and objectives of this Chapter. 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 or as otherwise provided by law. After submission by the Applicant of a duly executed and completed application, application deposit fee, and executed Franchise or Rights-of-Way Use Agreement as may be provided by the Director or as modified by the Director in review of the specific circumstances of the application, all in conformity with the requirements of this Chapter and all applicable laws, the Director shall submit such agreement to the Governing Body for approval. Upon determining compliance with this Chapter, the Governing Body may authorize execution of a Franchise or ROW Use Agreement (or a modified Agreement otherwise acceptable to the City consistent with the purposes of this Chapter) and such executed Franchise or ROW Use Agreement shall constitute consent to use the Rights-of-Way; provided that nothing herein shall preclude the rejection or modification of any executed Franchise or ROW Use Agreement submitted to the City to the extent applicable law does not prohibit such rejection or modification, including where necessary to reasonably and in a uniform or non-discriminatory manner reflect the distinct engineering, construction, operation, maintenance, public work or safety requirements applicable to the Person.

Section 515.050 Permit Required; Requirements.

[Ord. No. 17-40 § 2, 10-17-2017]

Excavation Permit Required. Except as otherwise provided herein, no ROW User or other Person shall perform Excavation work in the ROW without an Excavation Permit. Any Person desiring to Excavate in the ROW shall first apply for an Excavation Permit, on an application form provided by the City, and submit the application fee and pay all applicable fees to obtain an Excavation Permit, in addition to any other building permit, license, easement, or other authorization required by law, unless such Excavation must be performed on an emergency basis as provided herein. The cost of said Permit shall be set out in Appendix V-1 at the end of Title V. The Director is authorized to draft an application form consistent with the requirements of this Chapter. An Excavation Permit should be obtained for each project unless otherwise provided for in this Chapter. A separate special permit or lease shall be required for Excavation in or use of any real property interest of the City that is not ROW. It shall be unlawful for any Person to perform Excavation work within the City of Republic at any time other than from 6:00 A.M. to 9:00 P.M. Monday through Friday without prior approval from the City, except in the case of an emergency. No work shall be performed during City holidays, except in the case of an emergency. All Excavation Permits shall expire after sixty (60) days from the date of issuance, unless otherwise specified in the Excavation Permit. An Applicant whose Excavation Permit application has been withdrawn, abandoned or denied for failure to comply with this Chapter shall not be refunded the application fee.

Facilities Maintenance Permit; Exemptions. No Person shall perform Facilities Maintenance in the Rights-of-Way without first obtaining a Facilities Maintenance Permit from the Director, except where such Facilities Maintenance is expressly authorized by an existing valid Excavation Permit for the applicable Maintenance location or is exempt herein. In addition to the conditions set forth below, conditions of a Facilities Maintenance Permit shall be as established in such Maintenance Permit. All Facilities Maintenance Permits shall expire after sixty (60) days from the date of issuance, unless otherwise specified in such Maintenance Permit. A Facilities Maintenance Permit shall not be required for:

ROW Users performing routine Maintenance which does not require Excavation, does not substantially disrupt traffic or pedestrians, and requires no more than sixteen (16) hours to complete, provided that the Maintenance is performed between the hours of 7:00 A.M. and 9:00 P.M.;

Emergency situations as more fully described in Subsection (E) below; or

Contractors working on the construction or reconstruction of public improvements and which are operating pursuant to a contract with the City for such construction.

Bulk Permits. The Director shall have the authority to establish procedures for bulk processing of applications and periodic payment of fees.

Emergencies. In case of an emergency requiring immediate attention to remedy defects, and in order to prevent loss or damage to Persons or property, it shall be sufficient that the Person making such Excavation or performing such Facilities Maintenance obtain the necessary Permit as soon as possible and may proceed without a Permit when such Permit cannot reasonably be obtained before starting such emergency Excavation or Facilities Maintenance. Notice to the City of the emergency shall be provided at the earliest possible time and the appropriate Permit shall be obtained as soon as reasonably possible, and not later than five (5) business days thereafter, or as otherwise directed by the City. In the event the City becomes aware of an emergency requiring Facilities work the City shall attempt to contact a representative of each ROW User affected, or potentially affected, by the emergency work. If no response is received by a particular ROW User to whom contact is attempted, the Director may take whatever action he/she deems necessary to respond to the emergency, the cost of which shall be borne by the Person whose action or inaction occasioned the emergency or by the ROW User if the emergency was occasioned by an act of nature.

Law Compliance Incorporation. Every Permit issued hereunder shall incorporate the requirements and terms of this Chapter, and all applicable ordinances, to the extent permitted by law. The ROW User shall, to the extent allowed by law, perform such work in accordance with the issued permit, all applicable provisions of this Chapter, any applicable ordinances or regulations that may be adopted by the City. In addition, all ROW Users shall be subject to all technical specifications, design and location criteria, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power relating to Permits and fees, sidewalk and pavement cuts, Facility location, construction coordination, surface restoration, and other requirements on the use of the Rights-of-Way, including specifically the latest edition of the "Construction Specifications for Public Improvements, City of Republic." A ROW User shall perform all Excavations or Facilities Maintenance in full compliance with all applicable engineering codes adopted or approved by the City, and in accordance with applicable Statutes of the State of Missouri, and the rules and regulations of the PSC, FCC, and any other local, State or Federal agency having jurisdiction over the parties. The ROW User shall comply with the Excavation requirements of Missouri One Call established by Sections 319.010 et seq., RSMo., as amended. A ROW User shall be responsible for all Excavations or Facilities Maintenance done in the Rights-of-Way on its behalf, regardless of by whom the Excavation or Facilities Maintenance is done.

Permit Specific Conditions. The Director may also impose reasonable conditions upon the issuance of a Permit and the performance of Excavation and ROW work in order to protect the public health, safety, and welfare, to ensure the structural integrity of the Rights-of-Way, to protect the property and safety of other users of the Rights-of-Way, and to minimize the disruption, inconvenience and danger to the traveling public, including applicable permit requirements and design, location, appearance, and other reasonable requirements.

Above-Ground Facilities. All new Facilities may be located Above-ground only if approved by the City Council for good cause. Unless extraordinary circumstances exist, good cause shall not include authorization for Above-ground Facilities requiring new poles or major modification to existing Above-ground structures. Above-ground pedestals, vaults, cabinets, or other Facilities may be installed only if approved by the City where alternative Underground Facilities are not feasible or where underground requirements are otherwise waived pursuant to the provisions of this Subsection. Existing conduit shall be used where feasible and available. 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.

Use Of Existing Facilities Required; Exceptions. All new Facilities or structures shall collocate on existing structures or 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 as determined by the City applying these objectives). Where existing structures or Facilities are available, or exist at or near the proposed use, unless otherwise approved, the Applicant must either use such Facilities or file a written request verified by the Applicant for exception specifying the specific reasons why such Facilities are not available or feasible to be used and addressing the objectives hereof.

Wireless Antennas And Facilities. Pursuant to City authority, including Section 67.1830(f), 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, preserve property values, and enforce the public policy to maintain neutrality as to ownership of wireless locations, while also seeking to facilitate delivery of broadband technologies to City residents and businesses, wireless Facilities shall be permitted in the Rights-of-Way only in compliance with the requirements applicable to other Facilities and users in the Rights-of-Way, and the additional requirements set forth in this Section for wireless antennas and Facilities. Any wireless Facilities authorized in the ROW shall be only as authorized in a binding approved ROW Use Agreement, pole attachment agreement, or other written authorization with the City and subject to approval, denial, or condition relating to location, design, height, appearance, safety, specifications for use of City structures, and such zoning, building, or other regulations, including specifically Chapter 405, except as may be limited by law.

General Conditions. Any wireless Facility in the ROW shall be subject to conditions relating to the location (including prohibited or limited locations), design, height, appearance, safety, radio-frequency, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the Director to address changing infrastructure, technology, and uses of the Rights-of-Way and/or City Facilities.

Small Wireless Collocation. Any wireless Facility meeting the requirements of a "Fast Track Small Wireless Facility" as defined by Sections 405.885 and 405.905 of the Zoning Code, may be authorized to be located in the Rights-of-Way with approval of the Director subject to the following additional requirements:

Only one (1) Small Wireless Facility shall be permitted per structure in the ROW;

No ground equipment shall be authorized;

No Small Wireless Facility shall be located in a manner which obstructs or causes a safety concern for vehicle or pedestrian traffic; and

If the proposed structure the Applicant proposes to locate its Small Wireless Facility is not structurally sound, but the Director finds such to be a desired location, the director can require the Applicant to install a new substantially similar structure at its cost.

New Structures. Wireless Facilities shall not be permitted in the Rights-of-Way on new structures, provided that if evidence warranting an exception is provided by the Applicant pursuant to Section 515.050(H), the City Council may grant an exception authorizing a new structure for a wireless Facility if it also determines on a non-discriminatory basis such proposed application is in the public interest in light of the purposes of this Section and Chapter, and provided such use and location has received prior, separate zoning authorization as required by and in compliance with Chapter 405, to the extent permitted by law. In such circumstances where any new wireless structure application is permitted in the Rights-of-Way, such use shall be subject to reasonable regulations or conditions and including any applicable specifications, compensation, and other terms established by the City in such approval or agreement as necessary or appropriate to preserve the purposes of this Section and Chapter.

All Other Wireless In ROW. Any wireless Facility located on an Existing Structure but not meeting the requirements of Subsections (I)(2) or (3) above, may be approved, subject to conditions as may be imposed consistent with the purposes of this Section, only upon approval by the Council upon a determination by the Council that such wireless Facility is: (1) in the public interest to provide a needed service to persons within the City, (2) cannot feasibly meet all of the requirements of a "Small Wireless" but varies from such requirements to the minimum extent necessary, (3) does not negatively impact appearance or property values in light of the location, design, and circumstances to be approved, (4) does not create any reasonable safety risk, and (5) complies with all zoning, ROW, and other applicable requirements.

Wireless Facility Compensation. Unless otherwise established by the City Council, compensation to the City shall be as follows unless otherwise lawfully provided for in the agreement authorizing such use:

If the Small Wireless Facility is to be located on a City owned structure, a pole attachment agreement or other authorization shall be required with terms including insurance, indemnification, and a monthly payment of two hundred dollars ($200.00) per attachment or such other compensation as may be lawfully provided for in such agreement or authorization;

Pursuant to its authority including under Section 67.1830(6)(f), RSMo., and as may be authorized by Section 67.5094(11), RSMo., the ROW User wishing to install Small Wireless Facilities within the Rights-of-Way shall also pay to the City, in addition to the fees herein, a one-time administrative and zoning fee of five hundred dollars ($500.00) per each wireless Antenna installation to partly cover the City's costs and risks, including as may relate to the use of City Rights-of-Way.

Application Requirements. Any application including one (1) or more wireless Antennas or Facilities shall include all requirements: (1) for installation of any Facilities in the ROW as set forth in this Chapter, (2) of this Section, and (3) for installation of wireless Antennas and Facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Sections 67.5090, et seq., RSMo.), Zoning Code, and other applicable law including written proof of consent of landowner (copy of the ROW Use Agreement) and of structure owner (document authorizing use of the structure).

Limited Space. The City shall have the power to prohibit or limit the placement of new or additional equipment or Facilities in the Rights-of-Way if there is insufficient space to accommodate all of the requests of potential ROW Users, based on the public interest, public health and safety, the public's priority needs for the particular service, the condition of the Rights-of-Way, the time of year with respect to essential utilities, the protection of existing equipment, and future plans for City projects in the public interest.

Exclusion Of Certain Locations/Facilities. To the extent not prohibited by applicable law, prior to its installation of any Facilities in the Rights-of-Way, and after Applicant provides the City with its proposed plans, the City may, in its discretion, designate certain locations or Facilities in the Rights-of-Way to be excluded from use by the ROW User, including, but not limited to, ornamental or similar specially-designed street lights or other Facilities or locations which, in the reasonable judgment of the Director, do not have electrical service adequate or appropriate for the provider's Facilities, or cannot safely bear the weight or wind loading thereof, or any other Facility or location that in the reasonable judgment of the Director is incompatible with the proposed Facilities, or would be rendered unsafe or unstable by the installation. The Director may further exclude certain other Facilities that have been designated or planned for other use or are not otherwise available for use by the ROW User due to engineering, technological, proprietary, legal, or other limitations or restrictions as may be reasonably determined by the City. In the event such exclusions conflict with the reasonable requirements of the ROW User, the City will cooperate in good faith with the ROW User to attempt to find suitable alternatives, if available, provided that the City shall not be required to incur financial cost nor require the City to acquire new locations for the ROW User.

Location, Type, And Design Of Facilities Subject To Approval. The design, location, and nature of all Facilities shall be subject to the review and approval of the Director. Such review shall be on a non-discriminatory basis in application of City policy and approvals shall not be unreasonably withheld. Except as provided herein, all Facilities constructed after the date of this Chapter shall be placed underground, and in conduit, where capable. City height limitations, applicable zoning restrictions, and general City policies with regard to all users of the Rights-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.

Guarantee Of Work. Every Person to whom an Excavation Permit has been granted or otherwise performed Excavations, shall guarantee for a period of four (4) years the restoration of the Rights-of-Way in the area where such Person conducted an Excavation and performed the restoration. Such Person shall guarantee and pay for the restoration of the Rights-of-Way against sagging, buckling, deterioration, and other premature failures of the restoration. During said guarantee period, the ROW User shall, upon notification from the Director, correct all restoration, Excavation, or work to the extent necessary, using any method as required by the Director. All repairs shall be completed within two (2) weeks after the street is cut (not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable) unless a two (2) week time extension is authorized by the Director. In the event the ROW User is required to perform new restoration pursuant to the foregoing guarantee, the Director shall have the authority to extend the guarantee period for such new restoration for up to an additional forty-eight (48) months, or other greater period allowed by law, from the date of the new restoration, if the Director determines there was action by the ROW User not to comply with the conditions of the Excavation Permit and any restoration requirements. The guarantee period shall be applicable to failure of the pavement surface as well as failure below the pavement surface.

Barricades And Lights.

Generally. No person shall make any Excavation in, on, across or adjoining any Rights-of-Way and shall leave such Excavation open and unguarded. Warning devices shall be placed in accordance with the Manual of Uniform Traffic Control Devices.

Removal, Etc. No unauthorized person shall remove, break, or extinguish any lantern or danger Digna 1 which has been placed on any Rights-of-Way to protect persons against accidences.

Limit Number Of ROW Users. To the extent not prohibited by law, the City may limit the number of users in the Rights-of-Way in a competitively neutral manner, based upon, but not necessarily limited to, specific local considerations such as:

The capacity of the Rights-of-Way to accommodate current or future Facilities, public improvements, or public use;

The impact on the community of the volume of Facilities in the Rights-of-Way;

The disruption arising from the use of or numerous Excavations of the Rights-of-Way; or

Any other consideration based upon the interests of the public safety and welfare.

Interference Control. The Person performing Excavation shall cause the Excavation to be done with the least possible injury to the pavement, sidewalk, curbing, parkway, or other surface and shall place the materials from the Excavation where they will cause the least possible inconvenience to the public and permit the uninterrupted passage of water along the gutters. The width of the Excavation shall be no greater than is necessary for doing the work. No Person shall open or encumber more of the Rights-of-Way than is reasonably necessary to complete the Excavation or ROW Work in the most expeditious manner or allow an Excavation to remain open longer than is necessary to complete the work.

Erosion Control. Before new Excavation or construction is commenced and until sodding, planting, concreting, paving, or other final surfacing is in place, which will avoid washing or spreading of dirt and mud onto other property, sidewalks, curbs, gutters, streets, and the Rights-of-Way, the Person performing Excavation shall erect and maintain approved temporary erosion control measures to prevent such washing or spreading of materials. At the end of each day and as required throughout the day during the course of Excavating or construction, dirt and mud on the sidewalks, curbs, gutters, streets, and the Rights-of-Way resulting from work must be removed.

Mapping Of Facilities. Upon completion of the ROW work involving installation of new Facilities, the ROW User shall supply the City copies of as-built and detailed maps showing the exact location of Facilities installed in the ROW.

Section 515.060 Permit Denial.

[Ord. No. 17-40 § 2, 10-17-2017]

The Director may deny an application for a Permit if:

To the extent permitted by law, the Person does not have a current Franchise, License, or Rights-of-Way Use Agreement, or other authorization with the City.

The ROW User, or any Persons acting on the behalf of the ROW User, fails to provide all the necessary information requested by the City for managing the Rights-of-Way.

The ROW User, or any Persons acting on the behalf of the ROW User, including contractors or subcontractors, has a history of non-compliance or permitting non-compliance within the City. For purposes of this Section, "history of non-compliance or permitting non-compliance within the City" shall include where the ROW User, or any Persons acting on the behalf of the ROW User, including contractors or subcontractors, has failed to return the Rights-of-Way to its previous condition under a previous Permit, or has violated terms, or is in violation of terms of the ROW Users' Franchise, Rights-of-Way Use Agreement, License, or other authorization with the City.

The City has provided the ROW User with a reasonable, competitively neutral, and non-discriminatory justification for requiring an alternative method for performing the Excavation or Facilities Maintenance identified in the Permit application, or a reasonable alternative route that will not result in additional installation expense of more than ten percent (10%) to the ROW User or a declination of service quality.

Any other violations or non-compliance caused by or through the ROW User of any applicable City, State or Federal law or regulation, except where such violation is prohibited by applicable law for being a basis for denial.

The failure to comply with applicable City ordinances, or any other violation, unsafe conditions or damage or threatened harm to the Rights-of-Way or public, except where such circumstance would otherwise not constitute a lawful basis for denial of a Permit.

Section 515.070 Permit Revocation.

[Ord. No. 17-40 § 2, 10-17-2017]

The Director may, after reasonable notice and an opportunity to cure, revoke a Permit without fee refund, but only in the event of a substantial breach of the terms and material conditions of the Permit. A substantial breach by a ROW User includes but is not limited to:

A material violation of a provision of the Permit;

An evasion or attempt to evade any material provision of the Permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens;

A material misrepresentation of fact in the Permit application;

A failure to complete work by the date specified in the Permit, unless a Permit extension is obtained, or unless the failure to complete the work is due to reasons beyond the ROW User's control;

A failure to correct, within the time specified by the City, work that does not conform to applicable national safety codes, industry construction standards, or local safety codes, upon inspection and notification by the City of the faulty condition; or

Such other lawful reasons.

Section 515.080 Relocation Of Facilities.

[Ord. No. 17-40 § 2, 10-17-2017]

Required By City. 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. The ROW User shall proceed with relocations with due diligence upon notice by the City to begin relocation.

Required By Third-Party. The ROW User shall upon request of any other Person requesting relocation of Facilities and holding a validly issued building or moving permit of the City, and within a reasonable period of time and not less than forty-eight (48) hours prior to the date upon which said Person intends to exercise its rights under said permit, thereupon temporarily raise, lower or relocate its wires or other Facilities as may be required for the Person to exercise the rights under the permit, and the ROW User may require such Person to make payment in advance for any expenses incurred by said ROW User pursuant to said Person's request.

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.

Section 515.090 ROW User Responsibilities And Requirements.

[Ord. No. 17-40 § 2, 10-17-2017]

Insurance; Exceptions. Except as provided in this Section, each ROW User shall provide, at its sole expense, and maintain during the term of any ROW Use Agreement or Franchise or anytime the ROW User has Facilities in the ROW, commercial general liability insurance with a reputable, qualified, and financially sound company licensed to do business in the State of Missouri, and unless otherwise approved by the City, with a rating by Best of not less than "A," that shall protect the ROW User, the City, and the City's officials, officers, and employees from claims which may arise from such use of the ROW, whether such operations are by the ROW User, its officers, directors, employees and agents, or any contractors or subcontractors of the ROW User. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all ROW User operations, products, services or use of automobiles, or construction equipment. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall be in no event less than the individual and combined sovereign immunity limits established by 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, along with copies of the policy and all other documentation, shall be provided. If the Person is self-insured, it shall provide the City proof of compliance regarding its ability to self-insure and proof of its ability to provide coverage in the above amounts. Any self-insurance or deductible above fifty thousand dollars ($50,000.00) must be declared to and pre-approved by the City. 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 is otherwise therefore so exempted unless otherwise provided by a ROW Use Agreement or Franchise. The City reserves the right to waive any and all requirements under this Section when deemed to be in the public interest.

Performance Bond; Exceptions. Except as otherwise may be required by law for ROW Users who have on file with the City Clerk an affidavit certifying that the ROW User has twenty-five million dollars ($25,000,000.00) in net assets and is otherwise therefore so exempted, the Person shall at all times during the term of the Excavation Permit, and for four (4) years thereafter, maintain a performance and maintenance bond in a form approved by the City Attorney. The amount of the bond shall be twenty-five thousand dollars ($25,000.00) or the value of the restoration as determined by the Director, whichever is greater, conditioned upon the Person's faithful performance of the provisions, terms, and conditions conferred by this Chapter. Unless otherwise established in the Excavation Permit, an annual bond in an amount of one hundred thousand dollars ($100,000.00) automatically renewed yearly during this period shall satisfy the requirement of this Section. The City shall be entitled to recover under the terms of such bond the full amount of any loss and damage occasioned from violation of the Excavation Permit or provisions of this Chapter. Copies of the performance bond and all other documentation demonstrating compliance with this requirement shall be provided to the City to be on file with the City Clerk.

Indemnification. Every 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 ROW User, its agents, representatives, employees, contractors, subcontractors or any other Person for whose acts the ROW User may be liable, in constructing, operating, maintaining, repairing, restoring or removing Facilities, or use of the Rights-of-Way or the activities performed, or failed to be performed, by the ROW User under this Chapter or applicable law, or otherwise, except to the extent arising from or caused by the sole or gross negligence or willful misconduct of the City, its elected officials, officers, employees, agents or contractors. Nothing herein shall be deemed to prevent the City, or any agent from participating in the defense of any litigation by their own counsel at their own expense. Such participation shall not, under any circumstances, relieve the Person from the duty to defend against liability or its duty to pay any judgment entered against the City or its agents. This indemnification shall survive the expiration or termination of any ROW Use Agreement, Franchise, License, Permit, or other authorization for a period of five (5) years after the effective date of expiration or termination.

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

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.

Tree And Landscape Protection. Unless otherwise approved in writing by the City, a ROW User shall neither remove, cut, nor damage any trees or other landscaping, or their roots, in and along the ROW and public places of the City. Tree trimming and landscape pruning may be permitted to occur only after prior written notice to the City of the extent of trimming and pruning to be performed and the prior written approval thereof by the City. The type and extent of trimming and pruning shall be in accordance with the requirements of the City. 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 Person shall be required to remove and replace such of like size at the Person's cost. The location, size, and species of any replacement landscaping shall be as approved by the Director, unless the Director approves an equivalent monetary payment in lieu of replanting. In reviewing any Permit application, the City may require the Applicant to directionally bore around or otherwise avoid disturbance to any tree or landscaping, existing Facility, or other protected area in the Rights-of-Way.

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 zoning map, and (2) no application shall be submitted for approval without attaching the City's consent to use the Rights-of-Way for the specific construction application in accordance with Chapter 67, RSMo. 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 Permit, they are reserved, whether or not expressly enumerated.

Law Compliance. 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.

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 Use 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.

Responsible For Subcontractors. If Excavation or Facilities Maintenance is being done for the ROW User by another Person, a subcontractor or otherwise, the ROW User shall be responsible for ensuring that the Excavation or Facilities Maintenance of said Person is performed consistent with its Permit and applicable law (including that the contractor shall be properly licensed under the State of Missouri and local ordinances) and shall be responsible for promptly correcting acts or omissions by said Person.

Section 515.100 Abandoned Facilities.

[Ord. No. 17-40 § 2, 10-17-2017]

Abandoned Facility Requirements. ROW Users owning Facilities in the Rights-of-Way shall not Abandon or otherwise cease to use the Facilities for longer than one (1) year unless, prior to doing so, the ROW Users satisfies one (1) of the following:

Provides written notice of such intention, and removes its Facilities in compliance with all requirements and replaces or restores any damage or disturbance caused by the removal at its own expense;

Provide information satisfactory to the City that the ROW User's obligations for its Facilities in the Rights-of-Way will be lawfully assumed by another authorized ROW User, including proof of a Franchise, ROW Use Agreement or License; or

Submit to the City a proposal and instruments for transferring ownership of its Facilities to the City. If the ROW User proceeds under this Subsection, the City may, at its option: (1) purchase the equipment, (2) require the ROW User, at its own expense, to remove it, or (3) require the ROW User to post a bond in an amount sufficient to reimburse the City for reasonable anticipated costs to be incurred to remove the Facilities, except as otherwise provided herein.

Nuisance. Facilities Abandoned or otherwise left unused in violation of this Chapter are deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to: (a) abating the nuisance, (b) taking possession and ownership of the Facility and restoring it to a usable function, or (c) requiring the removal of the Facility by the ROW User.

Section 515.110 Inspections, Stop Work Orders, Appeals, And Penalties.

[Ord. No. 17-40 § 2, 10-17-2017]

Inspections. All ROW work and Facilities shall be subject to inspection by the City and the supervision of all Federal, State, and local authorities having jurisdiction in such matters to ensure compliance with all applicable laws, ordinances, departmental rules and regulations, and the ROW Permit.

Stop Work Orders. The Director shall have full access to all portions of the ROW work and may issue stop work orders and corrective orders to prevent unauthorized work or substandard work as established herein. Except in cases of an emergency or with approval of the Director, no ROW work may be done in violation of a stop work order issued by the Director. Such orders:

May be delivered personally or by certified mail to the address(es) listed on the application for the ROW Permit or the Person in charge of the construction site at the time of delivery;

Shall state that substandard work or work not authorized by the ROW Permit is being carried out, summarize the substandard or unauthorized work, and provide a period of no longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety; and

May be enforced by equitable action in Circuit Court and in such case the Person responsible for the substandard or unauthorized work shall be liable for all costs and expenses incurred by the City in enforcing such orders, including reasonable attorneys' fees, in addition to any and all penalties established in this Chapter.

Appeals. Unless otherwise required by law, the review procedures set forth in Chapter 430 shall govern appeals by an aggrieved Person of a final action of the Director or any other City official, officer, Council, Board, or commission that are claimed by an aggrieved Person to be unlawful or an unconstitutional taking of property without compensation. To the fullest extent permitted by law, the review procedures of Article VIII shall be exhausted before any action may be filed in any court against the City or its officers, employees, boards, officials or commissions.

Violations; Penalties. In addition to any other penalties and remedies for violations that may exist in law or equity, any Person that violates any provision of this Chapter shall be subject to such penalties as set forth in Section 100.220 of the City Code per day for each and every day the violation exists or continues.

Section 515.120 Reservation Of Rights.

[Ord. No. 17-40 § 2, 10-17-2017]

In addition to any rights specifically reserved to the City by this Chapter, the City reserves unto itself every right and power which is required to be reserved by a provision of any ordinance under any registration, Permit, or other authorization granted under this Chapter, and as may be authorized by Chapter 67, RSMo., and other authority applicable to regulation of the use of the Rights-of-Way. Notwithstanding anything to the contrary set forth herein, the provisions of this Chapter shall not infringe upon the rights of any Person pursuant to any applicable State or Federal Statutes, including, but not limited to any right that may exist to occupy the Rights-of-Way.