[HISTORY: Adopted by ordinance 6-14-1993; amended 7-13-2009 by Ord. No. 489. Prior code repealed, new code 3-13-2017 by Ord. No. 767. Subsequent amendments noted where applicable.]
A.
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 less than all users and uses
of the ROW are not duplicated herein, but are nevertheless incorporated
herein, whenever application is so required by law, including but
not limited to applicable provisions of Chapter 67, RSMo., and other
applicable state and federal law.
B.
Preemption. No provision of this chapter shall apply to any circumstance
in which such application shall be unlawful under superseding federal
or state law and furthermore, if any section, subsection, sentence,
clause, phrase, or portion of this chapter is now or in the future
superseded or preempted by state or federal law or found by a court
of competent jurisdiction to be unauthorized, such provision shall
be automatically interpreted and applied as required by law.
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.
Any equipment materials, apparatuses, devices, or Facilities
that are:
Any Facilities located above the surface of the ground, including
the underground supports and foundations for such Facilities.
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.
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.
The City of Moscow Mills, Missouri.
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,
which if proposed must be expressly separately requested below.
The City Engineer.
A permit authorizing Excavation for the construction or installation
of Facilities in the City's Rights-of-Way.
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.
The remaining volume or capacity in any existing or future
duct, conduit, manhole, handhold or other Facility, including dark
fiber, in the ROW that is used, or authorized by the ROW User to be
used, by others.
The construction, installation, repair, upgrade, or other
physical access to the Facility in the ROW that does not involve Excavation.
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.
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.
The Federal Communications Commission.
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.
The Board of Aldermen of the City.
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.
An Excavation Permit or a Facilities Maintenance Permit.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
The Missouri Public Service Commission.
A Person does not have its own Facilities in the Rights-of-Way,
but instead uses the Rights-of-Way by interconnecting with or using
the network elements of another ROW User utilizing the Rights-of-Way,
and/or by leasing Excess Capacity from an entity having Facilities
in the Rights-of-Way.
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.
The rights and obligations extended by the City to a Person
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.
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. A ROW User shall not include Reseller Service
Provider.
All Facilities located under the surface of the ground, excluding
the underground foundations or supports for Above-ground Facilities.
A.
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:
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 within the City's limits and boundaries.
2.
ROW use agreement. A ROW Use Agreement shall be required for all
other ROW Users, except as provided herein or otherwise required by
law. A ROW Use Agreement shall conform to all applicable laws and
requirements, including as provided herein, but shall not be subject
to procedures applicable only 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 mailboxes, driveway
aprons, ingress or egress facilities, and similar incidental uses,
that utilize a small area of the Rights-of-Way and serves the principal
structure, may be permitted without a Franchise or Rights-of-Way Use
Agreement pursuant to a License issued by the Director. The Director
shall have discretion to establish such application, requirements,
and conditions applicable to such uses consistent with the purposes
of this chapter or as otherwise established by law. Any Person granted
a License hereunder shall be subject to the applicable requirements
of this chapter.
B.
Grant and nature of approval; terms and compensation. The authority
granted by the City in any ROW Use Agreement, License or Franchise
shall be for non-exclusive use of the Rights-of-Way. Such grant does
not in any way limit the continuing authority of the City through
the proper exercise of its statutory powers to adopt and enforce ordinances
necessary to provide for the health, safety, and welfare of the public.
The City specifically reserves the right to grant, at any time, such
additional agreements or other rights to use the Rights-of-Way for
any purpose and to any other Person, including itself, as it deems
appropriate, subject to all applicable laws. The granting of any ROW
Use Agreement, License or Franchise 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.
C.
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 that have been properly identified
prior to such work. The ROW User shall not make or attempt to make
repairs, relocation or replacement of damaged or disturbed Facilities
without the approval of the owner of the Facilities.
D.
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 the Facilities controlled or owned by the
City or a third party.
E.
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.
F.
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.
G.
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
allowed by law.
H.
Forfeiture of agreement and privilege. In case of failure on the
part of the ROW User, including its successors and assigns to comply
with any of the provisions of this chapter or a ROW Use Agreement,
Franchise, 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 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 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 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.
A.
Application required. An application for a Franchise or ROW Use Agreement,
on City forms, shall be presented to the Director in writing and shall
include all such information as is required by this section. The ROW
User shall be responsible for accurately maintaining the information
in the application during the term of any Franchise or ROW Use Agreement
and shall be responsible for all costs incurred by the City due to
the failure to provide or maintain as accurate any application information
required herein.
B.
Application deposit fee. An application deposit 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.
C.
Application form. An Applicant shall submit a completed application
for a Franchise or Rights-of-Way Use Agreement on such form provided
by the City, which shall include information necessary to determine
compliance with this chapter including, but not limited to:
1.
Identity and legal status of the Applicant;
2.
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;
3.
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;
4.
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;
5.
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;
6.
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;
7.
Information sufficient to determine the amount of net assets of the
Applicant;
8.
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;
9.
Any request including one 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.) or other applicable; and
10.
Such other information as may be reasonably required by the Director
to determine requirements and compliance with applicable regulation.
D.
Standard for approval or renewal of ROW use agreements. In reviewing
an application for a new or renewal ROW Use Agreement, the City may
consider prior conduct of the Person in performance of its obligations
or compliance with the City's ordinances in the past, or the
existence of any outstanding violations or deficiencies. The City
may deny or condition any ROW Use Agreement or Franchise where the
proposed use would interfere with the public use of the Rights-of-Way
or otherwise conflict with the legitimate public interests of the
City or as otherwise provided by law. 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.
E.
Approval process. After submission by the Applicant of a duly executed
and completed application and application 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 the Franchise
or ROW Use Agreement (or a modified Agreement otherwise acceptable
to the City consistent with the purposes of this chapter) and such
executed Franchise or ROW Use Agreement shall constitute consent to
use the Rights-of-Way; provided that nothing herein shall preclude
the rejection or modification of any executed Franchise or ROW Use
Agreement submitted to the City to the extent applicable law does
not prohibit such rejection or modification, including where necessary
to reasonably and in a uniform or non-discriminatory manner reflect
the distinct engineering, construction, operation, maintenance, public
work or safety requirements applicable to the Person.
A.
ROW user authority; obligations. A ROW User is authorized, subject
to other applicable requirements, to sell or transfer use of Excess
Capacity to Reseller Service Providers or other entities, provided
that such entity either: (1) has no right to and does not physically
access the Facilities while in the ROW, or (2) has a separate Franchise
or ROW Use Agreement or other written agreement or consent authorizing
the same with the City. In the event of such sale or transfer to a
Reseller Service Provider, the ROW User shall notify the City of the
same prior to such action so that the City can review compliance regarding
doing business in the City. This notice shall not relieve the Reseller
Service Provider from its own obligation to register, pay taxes, and
obtain any necessary authorization from the City.
B.
Registration of Reseller Service Providers and Exempt Entities.
1.
Reseller service provider registration. Prior to providing service
(including sale or transfer of product or service) within the City
or acquiring or using Excess Capacity through Facilities in the City,
Reseller Service Providers shall register with the City the intent
to do so and shall include: (1) identity of the Reseller Service Provider
and certification of the applicable regulatory approval necessary
to undertake such service, (2) the name of the provider(s) owning
the Facilities within the City through which the service shall be
transmitted; (3) name, address, telephone number, and email address
of an officer, agent or employee responsible for the accuracy of the
registration, and contact information for a person to speak on behalf
of the Reseller Service Provider, if different; and (4) such other
information as requested by the Director. It shall be unlawful for
any Reseller Service Provider not having its own Rights-of-Way Use
Agreement, License, or Franchise to have its own Facilities in the
Rights-of-Way, have the right to physically access the Facilities
in the Rights-of-Way, or to transmit service for commercial purposes
through any Facility owned by a Person without a valid Rights-of-Way
Use Agreement or other City authorization for such Facilities. It
shall be the duty of a Reseller Service Provider to report any changes
to its registration information within 30 days of such change.
2.
Exempt entity registration. Prior to providing service within the
City, transmitting communications through Facilities in the City,
or constructing in the Rights-of-Way, entities not required to obtain
a Franchise, License, or Rights-of-Way Use Agreement due to superseding
federal or state law, shall nevertheless be required to register with
the City by providing the City the information required by the Rights-of-Way
application in Section 38.204. It shall be the duty of such exempt
entity to report any changes to such registration information within
30 days of such change.
C.
Reseller service provider obligations. Any Reseller Service Provider
that buys or leases Excess Capacity or other services for resale from
a ROW User, shall be subject to the terms and conditions of this chapter,
including the requirement to first register with the City and obtain
any necessary permit, license, certification, grant, registration,
franchise agreement or any other authorization required by any appropriate
governmental entity, including, but not limited to, the City, PSC
or the FCC. If a Person through such lease or purchase owns Facilities
in the Rights-of-Way or has the right to physically access or maintain
any Facilities in the Rights-of-Way, then such Person no longer meets
the definition of a Reseller Service Provider and is required to first
obtain a Franchise, License, or Rights-of-Way Use Agreement as required
herein.
A.
Excavation permit required. Except as otherwise provided herein,
no ROW User or other Person shall perform Excavation work in the ROW
without an Excavation Permit. Any Person desiring to Excavate in the
ROW shall first apply for an Excavation Permit, on an application
form provided by the City, and submit the application fee and pay
all applicable fees to obtain an Excavation Permit, in addition to
any other building permit, license, easement, or other authorization
required by law, unless such Excavation must be performed on an emergency
basis as provided herein. The Director is authorized to draft an application
form consistent with the requirements of this chapter, including the
information required for a Franchise or ROW Use Agreement in addition
to: an engineering site plan showing the proposed location of the
Facilities work, the length, size, type, and proposed depth of any
conduit or any other enclosures, the relationship of all Facilities
to all existing streets, the number of road crossings, the number
of entrance drive crossings, the locations of existing ROW Facilities,
and the number and character of each proposed cut or Excavation. The
Director shall maintain an index of Persons who have been granted
Permits. 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. All Excavation
Permits shall expire after 60 days from the date of issuance, unless
otherwise specified in the Excavation Permit. An Applicant whose Excavation
Permit application has been withdrawn, abandoned or denied for failure
to comply with this chapter shall not be refunded the application
fee.
B.
Application fees. Except as otherwise expressly provided in this
chapter, before any Excavation Permit required by this chapter is
issued by the City, the applicant therefore shall pay a permit fee
of $25 for each 100 lineal feet of excavation or part thereof. Fees
for private connections for water and sewer service shall be in conformance
with the City's water and sewer Ordinances.
C.
Local representative designation. Each ROW User shall designate a
local person familiar with the Facilities that shall act as a local
agent for the ROW User and shall be responsible for satisfying information
requirements of this chapter. The ROW User shall present to the City
the agent's name, address, telephone number, and email address.
The agent shall be the person to whom relocation notices and other
such notices shall be sent, and with whom rests the responsibility
to facilitate all necessary communications. The ROW User shall be
responsible for all costs incurred by the City due to the failure
to provide such information to the City.
D.
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 and shall include requirements of notice to the
City whenever traffic lanes are to be obstructed, manhole covers or
safety barriers removed or altered, temporary or other barricades
installed, and other events set forth in the Facilities Maintenance
Permit. All Facilities Maintenance Permits shall expire after 60 days
from the date of issuance, unless otherwise specified in such Maintenance
Permit. A Facilities Maintenance Permit shall not be required for:
1.
ROW Users performing routine Maintenance which does not require Excavation,
does not disrupt traffic or pedestrians, and requires no more than
four hours to complete, provided that at minimum two hours' notice
is provided to the City during normal business hours;
3.
Contractors working on the construction or reconstruction of public
improvements and which are operating pursuant to a contract with the
City for such construction.
E.
Bulk or individual permits. The Director may issue individual Permits
for specific proposed Excavations or Facilities Maintenance or may
issue bulk Permits covering multiple projects, types of actions, or
locations during a period of up to one year that may be thereafter
performed during that Permit year. Where a bulk Permit is proposed,
the ROW User shall provide sufficient information regarding the types
of actions and locations to be approved so as to allow the Director
to condition and ensure compliance with safety and other regulations
herein.
F.
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 business days, 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.
G.
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 perform
such work in accordance with the issued permit and applicable provisions
of this chapter and any subsequent ordinances or regulations that
may be adopted by the City regarding Excavation or Maintenance work.
In addition, all ROW Users shall be subject to all technical specifications,
design criteria, policies, resolutions and ordinances now or hereafter
adopted or promulgated by the City in the reasonable exercise of its
police power relating to Permits and fees, sidewalk and pavement cuts,
Facility location, construction coordination, surface Restoration,
and other requirements on the use of the Rights-of-Way. A ROW User
shall perform all Excavations or Facilities Maintenance in full compliance
with all applicable engineering codes adopted or approved by the City,
and in accordance with applicable statutes of the State of Missouri,
and the rules and regulations of the 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 Section 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.
H.
Stop work orders. Any ROW User found to be working without a required
Permit, failing to provide for required safety and traffic control
measures, or otherwise violating any requirements herein, may be directed
to stop work until the necessary Permit is obtained, the appropriate
measures are implemented, or violations are discontinued or remedied
in accordance with this chapter. Except in cases of an Emergency or
with approval of the Director, no Rights-of-Way Excavation or Work
may be done in violation of a stop work order issued by the Director.
Such stop work orders may be enforced by equitable action in the Circuit
Court of Lincoln County, Missouri, and if the City prevails in such
case, the ROW User by acceptance of the Permit, agrees to be liable
for all costs and expenses incurred by the City, including reasonable
attorneys' fees, in enforcing such order, in addition to any
and all penalties established in this chapter.
I.
Plans required. At least 30 days before the beginning of any installation,
removal, or relocation of its Facilities, the ROW User shall submit
detailed plans of the proposed action to the Director. The Director
shall, within 30 days of receipt of such plans, either approve the
plans or inform the ROW User of the reasons for disapproval.
J.
Subsurface utility engineering survey. Unless determined by the Director
as unnecessary, prior to the commencement of any construction or alteration
of its Facilities located in the Rights-of-Way, the ROW User shall
furnish to the Director a subsurface utility engineering study on
the proposed route of construction, expansion, or alteration, which
shall consist of the following tasks:
1.
All available plans, plats, and other location data indicating the
existence and approximate location of all Facilities along the proposed
construction route;
2.
Completion of a visual survey and written record of the location
and dimensions of any Above-ground features of any Underground Facilities
along the proposed construction route including, but not limited to,
manholes, pedestals, valve boxes, utility boxes, posts, and visible
street cut repairs;
3.
Plot and incorporate the data obtained from completion of tasks (a)
and (b) above onto the provider's proposed Facilities route maps,
plan sheets, and computer-aided drafting and design (CADD) files;
and
4.
Provide all such data collected into a CADD file (or other format
as may be identified by the Director) compatible with that used by
the Director and deliver a copy to the Director.
K.
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 and inconvenience to the traveling public.
Such reasonable conditions may include, but are not limited to:
1.
The amount of Excavation or Facilities Maintenance which may occur
at one time and the amount of Rights-of-Way which may be obstructed
during construction;
2.
The number or size of conduits or other Facilities that may be installed
by each ROW User based on the reasonable needs to ensure that no one
ROW User may unreasonably consume a disproportionate amount of the
available Rights-of-Way to deter competition or deprive the public
or others of the reasonable use of the Rights-of-Way;
3.
Posting of an additional or larger performance and maintenance bond
for additional Facilities, except as otherwise provided in § 38.214
hereof, when the established amount is reasonably determined to be
insufficient;
4.
The design, location, and nature of all Facilities, based on a nondiscriminatory
basis in ensuring the safe, efficient, and appropriate use of the
ROW consistent with this chapter and applicable law; and
5.
Other reasonable conditions regarding the timing, safety precautions,
space, or specific implementation of the specific work proposed.
A.
Open excavations; street-plate bridging. The ROW User shall not permit
an Excavation to remain open or Facilities Maintenance actions to
continue in the Rights-of-Way longer than is necessary to complete
the repair, installation or action, and in no event may an Excavation
or Facilities Maintenance remain open or continue beyond the expiration
of the Excavation Permit or any approved extension. Unless otherwise
approved by the Director in writing, all Excavations shall be filled
in or covered at the end of each working day. Street plate bridging
(SPB) to cover open Excavations shall be authorized subject to requirements
contained in the standard specifications. In the event the ROW User
fails to backfill or cover any excavation made in the ROW, the Director,
at his/her discretion, may repair said cut or cover such excavation
at the sole cost and expense of the ROW User.
B.
Interference control. The ROW User Excavating in the Rights-of-Way
shall cause the Excavation to be done with the least possible injury
to the pavement, sidewalk, curbing, parkway, or other surface and
shall place the materials from the Excavation where they will cause
the least possible inconvenience to the public and permit the uninterrupted
passage of water along the gutters. The width of the Excavation shall
be no greater than is necessary for doing the work.
C.
Erosion control. Before new Excavation or construction is commenced
and until sodding, planting, concreting, paving, or other final surfacing
is in place, which will avoid washing or spreading of dirt and mud
onto other property, sidewalks, curbs, gutters, streets, and the Rights-of-Way,
the ROW User shall erect and maintain approved temporary erosion control
measures to prevent such washing or spreading of materials. At the
end of each day and as required throughout the day during the course
of Excavating or construction, dirt and mud on the sidewalks, curbs,
gutters, streets, and the Rights-of-Way resulting from work must be
removed.
D.
Cleaning up; removing mud from vehicles. The Person doing the Excavating
or other ROW work under the requirements of this chapter shall immediately,
after the work is completed and the refill is made, clean up and haul
away all surplus earth, rock, debris, or other rubbish. The ROW User
shall remove dirt from the wheels of all vehicles leaving any site
where mud has accumulated on the wheels before such vehicles enter
any public street of the City. It shall be unlawful for any ROW User
to permit any vehicles to leave such place with mud on the wheels
which is liable to be dispersed over any public street of the City
and it shall be unlawful for any driver of a vehicle to enter upon
the public streets of the City without having removed or had mud removed
from the wheels prior to such entry. Each occurrence shall be a separate
offense. The ROW User shall be responsible for damages to the City,
or its contractors, resulting from such failure and shall indemnify
the City and its contractors as provided herein and pay the costs
for remedying such failure.
E.
Spilling materials onto rights-of-way. The ROW User shall load materials
on any vehicle so no portion thereof shall be spilled or be liable
to be spilled on the streets of the City. It shall be unlawful for
any ROW User to permit any vehicle to enter upon the streets of the
City loaded in violation of this provision and it shall be unlawful
for any Person to operate a vehicle on the streets of the City which
is loaded in such manner that it spills or is liable to spill mud,
dirt, or other materials on the streets.
F.
Barricades and safety devices. The ROW User assumes the sole responsibility
for maintaining proper barricades, plates, safety fencing, and/or
lights as required from the time of opening of the ROW until the Excavation
is surfaced and opened for travel. All Excavations and Facilities
Maintenance that disturb traffic or pedestrian travel shall be barricaded
in such a manner as to protect both pedestrians and vehicular traffic.
Such Excavations, Facilities Maintenance, and barricades shall be
lighted at night with danger signals in such a manner that all traffic
may be warned of the existence and location of such Excavations, Facilities
Maintenance, and barricades. All warning devices shall be moved periodically
as construction advances to maintain a consistent warning distance.
G.
Traffic control. Whenever there is an Excavation or Facilities Maintenance
by the ROW User, the ROW User shall be responsible for providing adequate
traffic control to the surrounding area as determined by the Director.
All traffic control devices shall be in compliance with the current
version of the standard specifications and the Manual of Traffic Control
Devices (MUTCD), unless otherwise agreed to by the City. All surplus
Excavation materials, tools, or supplies at the site of the Excavation
or Facilities Maintenance shall be barricaded and lighted at night
in the manner described in this section. Where poor visibility or
sight lines exist on a road the speed limit shall be reduced to insure
that motorists can maintain safe vehicle speeds. "Men at work" warning
signs shall be posted where practical at least 150 feet in either
direction of the street cut. The ROW User shall at all times take
the necessary precaution to protect the life and health of all persons
employed on the work site. In the event the Excavation or Facilities
Maintenance is not completed in a reasonable period of time, the ROW
User may be liable for actual damages to the City for delay caused
by the ROW User pursuant to this chapter.
H.
Hours of activity. Nonemergency Excavations or Facilities Maintenance
effecting traffic on arterial and collector streets may not be performed
during the hours of 7:00 a.m. to 8:30 a.m. and 4:00 p.m. to 6:00 p.m.,
in order to minimize disruption of traffic flow. The ROW User shall
perform Excavations or Facilities Maintenance on the Rights-of-Way
at such times that will allow the least interference with the normal
flow of traffic and the peace and quiet of the neighborhood, and shall
not work between the hours of 11:00 p.m. and 6:00 a.m.
I.
Boring under streets. The City reserves the authority to require
the ROW User to bore under its streets, in lieu of open excavation.
The casing shall be minimum schedule 40 steel and be a minimum of
six inches larger in diameter than the carrier pipe. Casing must be
from ditch line to ditch line or from three foot behind curb to three
foot behind curb.
J.
Methods of pavement removal, excavation, and backfill. The Person
making an Excavation shall abide by the following conditions:
1.
The initial cut in a street pavement shall be equal to the width
of the trench with the option of being jack hammered or saw cut. The
final cut in an asphaltic concrete street pavement shall be one foot
wider than the trench width and shall be made only by saw cutting
of the pavement.
2.
For cuts in concrete paved streets, concrete pavement replacement
shall be full slab length (joint-to-joint) and full slab width (curb
or gutter to street centerline) unless specifically authorized otherwise
by the Director.
3.
Refill Excavation with suitable unfrozen materials free from trash,
rubbish, vegetative and deleterious material, and/or rocks over three
inches in maximum dimension, in layers not exceeding eight inches
in depth and each layer shall be compacted thoroughly.
4.
Testing: Both compaction and compression tests will be required.
Failure to obtain the required compaction or compression results may
result in the removal and replacement of the patched area. Compaction
shall meet or exceed the most current version of the standards and
conditions of the City and the ASTM International (American Society
for Testing and Materials).
K.
Repairs when defective. All violations of the standards and requirements
herein shall be corrected within the time specified in the issuance
of a written notice to correct. Action to correct violations which
require immediate action shall be taken upon notification to the Person
by the City. Every Person failing to comply with the oral or written
notice shall be deemed in violation of this chapter. If the action
is not taken within the time period specified by notice and in addition
to any other remedy, the Director may have the violation, including
but not limited to, the existence of mud or debris on the Rights-of-Way,
immediately remedied and the City's costs shall be reimbursed
by the ROW User through the surety or otherwise. Nothing in this subsection
shall prevent prosecution of violation of this chapter in the absence
or in addition to the issuance of notice of violation.
L.
Inspection and acceptance of excavations after backfilling and settlement.
When an Excavation has been made in the ROW, and after the same has
been properly backfilled, the Person making the Excavation shall notify
the Director that the same is ready for final repair. The Director
or his duly authorized agent shall inspect the same. The judgment
of the Director or his authorized agent as to when an Excavation has
been properly backfilled to permit final repair shall be conclusive.
M.
Final repair of excavations; specifications; City restoration. After
inspection and acceptance of Excavation by the Director, the Person
shall be responsible for Restoration of the affected Rights-of-Way,
including pavement and its foundation, pursuant to and in accordance
with the standard and conditions of the City, to be completed prior
to expiration of the Excavation Permit. If the Excavation is not properly
completed and Restored by the expiration of the Excavation Permit,
the City may, in addition to all other remedies, perform the Restoration
and completion and obtain reimbursement for such costs from the ROW
User or surety, provided that if the City provides an invoice to the
ROW User for such Restoration, such invoice shall be paid in not more
than 30 days of such invoice.
N.
Notice of completion. The ROW User shall notify the Director upon
completion of the Excavation or Facilities Maintenance authorized
by the Excavation Permit.
O.
Guarantee of work. Every Person to whom an Excavation Permit has
been granted or otherwise performed Excavations, shall guarantee for
a period of four 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. Said Excavation or Work shall be completed within a reasonable
time, not to exceed 30 calendar days of the receipt of notice from
the Director (not including days during which work cannot be done
because of circumstances constituting force majeure or days when work
is prohibited as unseasonable or unreasonable). In the event the ROW
User is required to perform new Restoration pursuant to the foregoing
guarantee, the Director shall have the authority to extend the guarantee
period for such new Restoration for up to an additional 48 months,
or other greater period allowed by law, from the date of the new Restoration,
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.
A.
The Director may deny an application for a Permit if:
1.
To the extent permitted by law, the Person does not have a current
registration Franchise, License, or Rights-of-Way Use Agreement, or
other authorization with the City.
2.
The ROW User, or any Persons acting on the behalf of the ROW User,
fails to provide all the necessary information requested by the City
for managing the Rights-of-Way.
3.
The ROW User, or any Persons acting on the behalf of the ROW User,
including contractors or subcontractors, has a history of noncompliance
or permitting noncompliance within the City. For purposes of this
section, "history of noncompliance or permitting noncompliance within
the City" shall include where the ROW User, or any Persons acting
on the behalf of the ROW User, including contractors or subcontractors,
has failed to return the Rights-of-Way to its previous condition under
a previous Permit, or has violated terms, or is in violation of terms
of the ROW Users' Franchise, Rights-of-Way Use Agreement, License,
or other authorization with the City.
4.
The City has provided the ROW User with a reasonable, competitively
neutral, and nondiscriminatory justification for requiring an alternative
method for performing the Excavation or Facilities Maintenance identified
in the Permit application, or a reasonable alternative route that
will not result in additional installation expense of more than 10%
to the ROW User or a declination of service quality.
5.
Any other violations or noncompliance caused by or through the ROW
User of any applicable City, state or federal law or regulation, except
where such violation is prohibited by applicable law for being a basis
for denial.
6.
The City determines that the denial is necessary to protect the public
health and safety, provided that the authority of the City does not
extend to those items under the jurisdiction of the PSC, such denial
shall not interfere with a ROW User's right of eminent domain
of private property, and such denials shall only be imposed on a competitively
neutral and nondiscriminatory basis. In determining whether denial
of a Permit application is necessary to protect the public health
and safety, the Director may consider one or more of the following
factors:
a.
The extent to which the Rights-of-Way space where the Permit is sought
is available, including the consideration of competing demands for
the particular space in the Rights-of-Way, or other general conditions
of the Rights-of-Way;
b.
The applicability of any ordinance, code provision, or other regulations
that affects the location of Facilities in the Rights-of-Way;
c.
The degree and nature of disruption to surrounding communities and
businesses that will result from the use of that part of the Rights-of-Way,
including whether the issuance of a Permit for the particular dates
and/or times requested would cause a conflict or interfere with an
exhibition, celebration, festival, or any other event;
d.
The area is environmentally sensitive as defined by state statute
or federal law or is a historic district designated by City ordinance;
and
e.
The failure to comply with applicable City ordinances, or any other
violation, unsafe conditions, or damage or threatened harm to the
Rights-of-Way or public, except where such circumstance would otherwise
not constitute a lawful basis for denial of a Permit.
A.
The Director may, after reasonable notice and an opportunity to cure,
revoke a Permit without fee refund, but only in the event of a substantial
breach of the terms and material conditions of the Permit. A substantial
breach by a ROW User includes but is not limited to:
1.
A material violation of a provision of the Permit;
2.
An evasion or attempt to evade any material provision of the Permit,
or the perpetration or attempt to perpetrate any fraud or deceit upon
the City or its citizens;
3.
A material misrepresentation of fact in the Permit application;
4.
A failure to complete work by the date specified in the Permit, unless
a Permit extension is obtained, or unless the failure to complete
the work is due to reasons beyond the ROW User's control;
5.
A failure to correct, within the time specified by the City, work
that does not conform to applicable national safety codes, industry
construction standards, or local safety codes, upon inspection and
notification by the City of the faulty condition; or
6.
Such other lawful reasons.
A.
Exclusion of certain locations/facilities. 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.
B.
Location, type, and design of facilities subject to approval.
1.
Review required. The design, location, and nature of all Facilities
shall be subject to the review and approval of the Director. Such
review shall be on a non-discriminatory basis in application of City
policy and approvals shall not be unreasonably withheld. 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 effect this provision.
2.
Underground facility location. 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.
3.
Above-ground facilities. All new Facilities may be located Above-ground
only if approved by the Governing Body 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.
4.
Use of existing facilities required; exceptions. All new Facilities
or structures shall collocate on existing poles 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
poles 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.
5.
Wireless antennas and facilities. Pursuant to City authority, including
by Section 67.1830, RSMo., and due to the limited space in the City's
Rights-of-Way, and to minimize obstructions and interference with
the use of the Rights-of-Way by the public, and to ensure traffic
safety, preserve property values, and enforce the public policy to
maintain neutrality as to ownership of wireless locations, wireless
Facilities or structures and equipment shall not be permitted in the
Rights-of-Way on new structures unless the Governing Body determines
on a non-discriminatory basis such proposed application is in the
public interest addressing all concerns stated herein and provided
such use and location has received prior, separate zoning authorization
to the extent permitted by law. In such circumstances where any new
wireless application is permitted in the Rights-of-Way, such uses
shall be subject to reasonable regulations, including any applicable
specifications, compensation, and other terms established by the City
in such approval or agreements.
6.
Limited space. The City shall have the power to prohibit or limit
the placement of new or additional equipment in the Rights-of-Way
if there is insufficient space to accommodate all of the requests
of potential ROW Users. In making such decisions, the City shall strive
to the extent possible to accommodate all existing and potential users
of the Rights-of-Way, but shall be guided primarily by considerations
of the public interest, public health and safety, the public's
priority needs for the particular service, the condition of the Rights-of-Way,
the time of year with respect to essential utilities, the protection
of existing equipment in the Rights-of-Way, and future City plans
for public improvements and development projects which are in the
public interest.
7.
Limit number of ROW users. To the extent not prohibited by law, the
City may limit the number of users in the Rights-of-Way in a competitively
neutral manner, based upon, but not necessarily limited to, specific
local considerations such as:
a.
The capacity of the Rights-of-Way to accommodate current or future
Facilities, public improvements, or public use;
b.
The impact on the community of the volume of Facilities in the Rights-of-Way;
c.
The disruption arising from the use of or numerous Excavations of
the Rights-of-Way; or
d.
Any other consideration based upon the interests of the public safety
and welfare.
C.
Mapping of facilities. Upon completion of the ROW work involving
installation of new Facilities, the ROW User shall supply the City
copies of as-built and detailed maps showing the exact location of
Facilities installed in the ROW.
A.
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.
B.
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 with the City, followed by all others.
C.
Site triangle maintained. ROW Users shall comply with the requirements
of site triangles and nothing shall be erected, placed, planted or
allowed to grow in such a manner as to materially impede vision within
the triangular area formed by the Rights-of-Way lines and a line connecting
them at points 30 feet from their point of intersection or at equivalent
points on private street.
A.
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.
B.
Advertising, signs, or extraneous markings. ROW Users shall not place
or cause to be placed any sort of signs, advertisements, or other
extraneous markings, whether relating to the ROW User or any other
Person on the Rights-of-Way, except such necessary minimal markings
as approved by the City as are reasonably necessary to identify the
Facilities for service, repair, Maintenance or emergency purposes,
or as may be otherwise required to be affixed by applicable law or
regulation.
C.
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.
D.
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.
E.
Joint permit applications. Applicants may apply jointly for Permits
in the Rights-of-Way at the same time and place. All joint Applicants
must jointly execute all required documents and shall be jointly and
severally liable for all duties and obligations hereunder. Persons
who apply jointly may share in the payment of the application deposit
fee. Such Persons must agree among themselves as to the portion each
shall pay.
F.
Notification, joint installation, and collocation. ROW Users shall,
prior to any Excavation or installation in the Rights-of-Way, provide
sufficient notification and joint installation opportunity on a shared-cost
basis to potential users of the Rights-of-Way as may be provided for
by separate City policy. Such notification and adopted policies shall
be designed to maximize Collocation of ROW Users, to minimize the
disturbance to the Rights-of-Way, and maximize its usable capacity.
ROW Users shall identify by mapping, as required by the Director,
the location and specifications of all conduit available or dedicated
for Collocation. Any Person unreasonably failing to respond to Collocation
opportunities or otherwise comply with this provision or policies
adopted hereunder shall, unless good cause is found by the City, be
precluded from use of the Rights-of-Way for a period of 30 months
at such locations that would reasonably have been accommodated by
the Collocation opportunity that was declined.
G.
Coordination of construction activities. All ROW Users are required
to cooperate with the City and with each other as follows:
1.
By January 15th of each year, each ROW User shall provide the Director
with a schedule of its proposed construction activities, which may
affect the public rights-of-way for the ensuing 12 months. Failure
to provide a schedule on a timely basis may be considered in denial
of a permit for the ensuing 12 months.
2.
Each ROW User shall meet with the Director and other ROW Users, either
quarterly or as determined by the Director, to schedule and coordinate
facilities work.
A.
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.
B.
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 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.
C.
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; provided that ROW User has failed to relocate the Facilities
within the time frame required by the City.
A.
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 § 537.610, RSMo. for political subdivisions; provided
that nothing herein shall be deemed to waive the City's sovereign
immunity. An endorsement shall be provided which states that the City
as an additional insured with full and equivalent coverage as the
insured under the insured's policy and stating that the policy
shall not be cancelled or materially modified so as to be out of compliance
with the requirements of this section, or not renewed without 30 days'
advance written notice of such event being given to the Director.
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 $50,000 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 $25,000,000 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.
B.
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 $25,000,000 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 years thereafter,
maintain a performance and maintenance bond in a form approved by
the City Attorney. The amount of the bond shall be $5,000 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 $100,000 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.
C.
Copy required. A copy of the insurance policy(ies), endorsement,
and documentation demonstrating compliance with the insurance requirements
herein and the performance and maintenance bond requirements herein
must be on file with the City Clerk.
A.
Compliance with laws. Each ROW User shall comply with all applicable
federal and state laws and regulations and rules as well as all City
ordinances, resolutions, rules, and regulations heretofore and hereafter
adopted or established.
B.
ROW users subject to other laws, police power.
1.
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:
a.
The most restrictive adjacent underlying zoning district classification
shall apply unless otherwise specifically zoned and designated on
the official zoning map; and
b.
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.
2.
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 Permit, they are reserved,
whether or not expressly enumerated.
C.
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.
D.
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 for the City acceptable to the City) and hold harmless
the City, its municipal officials, officers, employees and agents,
from and against any and all claims, demands, suits, proceedings,
and actions, liability and judgment by other Persons for damages,
losses, costs, and expenses, including attorney fees, arising, directly
or indirectly, in whole or in part, from the action or inaction of
the 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 years after the effective date of expiration
or termination.
E.
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.
F.
Abandonment and unusable facilities.
1.
Abandoned facility requirements. ROW Users owning Facilities in the
Rights-of-Way shall not Abandon or otherwise cease to use of the Facilities
for longer than one year unless, prior to doing so, the ROW Users
satisfies one of the following:
a.
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; or
b.
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
c.
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.
2.
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.
A.
Appeals. Unless otherwise required by law, the review procedures set forth in Chapter 27 shall govern appeals by an aggrieved Person of a final action of the Director or any other City official, officer, Board, or commission that are claimed by an aggrieved Person to be unlawful or an unconstitutional taking or property without compensation. To the fullest extent permitted by law, the review procedures of Chapter 27 shall be exhausted before any action may be filed in any court against the City or its officers, employees, boards, officials or commissions.
B.
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 Chapter 13 of the City Code per day for each and every day the violation exists or continues.
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.
