[Ord. No. 420, 1-13-2020]
A.
Applicability. Except as provided for herein and where limited by
applicable law, this Article 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 Article. 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. This Article shall supplement and
establish additional requirements to the other provisions of this
Article.
B.
Preemption. No provision of this Article 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 Article 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superseded or preempted by State or Federal law or found by a court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.
[Ord. No. 420, 1-13-2020]
For purposes of this Article, 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:
Declared abandoned by the owner of such equipment or facilities;
No longer in active use for a period of six (6) months or more,
and the owner of such equipment or facilities fails to respond within
thirty (30) days to a written notice sent by the City;
The owner allows a franchise, agreement or license to expire
and fails to cure within thirty (30) days after notice; or
As otherwise may be defined by applicable law.
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 who has applied for a ROW use agreement, franchise,
license, ROW permit, or any permit or other authorization to install,
maintain, repair or otherwise physically access facilities in the
ROW.
Any facilities located in the ROW and owned by the City.
The transmission via facilities, in whole or in part, of
any writings, signs, signals, pictures, sounds or other forms of intelligence
through wire, wireless, or other means, including, but not limited
to, any telecommunications service, enhanced service, information
service, or internet service, as such terms are now, or may in the
future be, defined under applicable law, and including all instrumentalities,
facilities, apparatus (communications facilities), and services (among
other things, the receipt, forwarding, and delivery of telecommunications)
incidental to such transmission or designed to directly or indirectly
facilitate or accept such transmission and shall also include "video
services" as defined in § 67.2677, RSMo. The term "communications
service" does not include the rental of conduit or physical facilities.
The Mayor or his/her designee.
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 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, or structure located in the
rights-of-way, including, without limitation, cables, wires, lines,
poles, towers, antennas, conduit facilities, vaults, pedestals, transmitters,
meters, fiber, foundations, and any other equipment, infrastructure,
structures or obstruction. Facilities shall not include mailboxes,
lawful vehicular parking or use or lawful minor incidental uses such
as driveway aprons, private utility connections or other incidental
facilities which may be permitted by a license issued by the Director
as provided herein.
A binding and accepted ordinance for certain ROW users to
occupy the rights-of-way for the purpose of providing, transporting,
or distributing electricity, gas, water, steam, lighting, energy,
or sewer service to any person or area in the City's limits and
boundaries.
The executed agreement between the City and a person to use
and occupy the rights-of-way for the purpose of installing incidental
temporary facilities within the rights-of-way or incidental uses such
as ingress and egress facilities, lateral utility lines, or driveway
aprons.
The length in feet of cable, wire, fiber, conduit or other
linear facilities. Facilities that are physically connected, wrapped
or lashed as a single cable, conduit or bundle of cables or conduit
shall be considered a single facility for purposes of calculating
each linear foot, provided that each conduit or bundle of conduit
up to and including four (4) inches in exterior diameter shall constitute
a separate facility for calculating linear feet. Conduit having fiber
optic or other cable or wire installed within it shall not be considered
separate facilities but shall be considered part of the single conduit
or bundle for purposes of calculating linear feet, provided that such
fiber optic or other cable or wire installed within a singular conduit
can physically fit inside four (4) inches of exterior diameter.
An excavation permit or a facilities maintenance permit.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
The area on, below, or above a public roadway, highway, street
or alleyway in which the City has an ownership interest or right of
management, and including such adjacent areas within such public ways
within such City control, except as may be limited by law.
A document granting consent by the City to use the ROW for
the purpose of providing communications service or for such other
use for which a franchise or license is not applicable and obtained
as provided for herein.
All persons and entities, whether a PSC-registered utility
or otherwise, owning, controlling, leasing, maintaining, using or
installing facilities in the rights-of-way of the City, not otherwise
expressly exempted. To the extent permitted by law, ROW user shall
not include the City.
[Ord. No. 420, 1-13-2020]
A.
ROW Use Agreement, License, Or Franchise Required. Except where otherwise
authorized or required by applicable law, no person may own, control,
lease, use, or install facilities or other structures in the rights-of-way
without a franchise, license, or ROW use agreement all subject to
the requirements of this Article and issued by the City as provided
herein and as follows:
1.
Franchise. A franchise shall be obtained in conformance with
all applicable franchise procedures for any ROW user seeking to use
the rights-of-way for the purpose of providing, transporting or distributing
electricity, gas, water, steam, lighting, energy, or sewer service
to any person or area in the City's limits and boundaries.
2.
ROW Use Agreement. A ROW use agreement shall be required for
all other ROW users, except as provided herein or otherwise required
by law. A ROW use agreement shall conform to all applicable laws and
requirements, including as provided herein, but shall not be subject
to procedures applicable to franchises.
3.
License For Incidental Uses. Persons desiring to install an
incidental use, which includes installation of temporary structures
or minor incidental uses in the rights-of-way, such as driveway aprons,
ingress or egress facilities, and similar incidental uses, that utilize
a small area of the rights-of-way and serves the principal structure,
may be permitted without a franchise or rights-of-way use agreement
pursuant to a license issued by the Director. The Director shall have
discretion to establish such application, requirements, and conditions
applicable to such uses consistent with the purposes of this Article
or as otherwise established by law. The applicant shall be required
to pay an application fee and an inspection fee as established by
the City. Any person granted a license hereunder shall be subject
to the applicable requirements of this Article. Unless otherwise stated
in the license, a license shall be for an indefinite term and shall
be revocable at any time on written notice in the public interest
by the City.
4.
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.
5.
Temporary License Or Construction Permits.
a.
Any ROW user that has a license or permit for construction of
facilities and is otherwise required to obtain a franchise or ROW
agreement shall within ninety (90) days of the date of the effective
date of this Article:
(1)
Seek and obtain a fully executed franchise or ROW
agreement with the City and fully comply with the terms of such franchise
or agreement, this Code and other applicable law; or
(2)
Provide written evidence documenting a legal right
to operate without such franchise or ROW agreement ("asserted preemption")
and fully comply with the requirements of this Article and other applicable
law.
b.
Nothing in this Subsection shall waive the City's right
to challenge any asserted preemption nor shall such preemption be
valid if not fully supported by applicable law.
B.
Grant And Nature Of Approval. The authority granted by the City in
any ROW use agreement, license or franchise shall be for non-exclusive
use of the rights-of-way. Such grant does not in any way limit the
continuing authority of the City through the proper exercise of its
statutory powers to adopt and enforce ordinances necessary to provide
for the health, safety, and welfare of the public. The City specifically
reserves the right to grant, at any time, such additional agreements
or other rights to use the rights-of-way for any purpose and to any
other person, including itself, as it deems appropriate, subject to
all applicable laws. The granting of any ROW use agreement, license
or franchise by the City shall not be deemed to create any property
interest of any kind in favor of the ROW user nor shall it create
any relationship of agency, partnership, joint venture, or employment
between the parties. Licenses may be approved by the Director on a
non-discriminatory basis, provided that the person is in compliance
with all applicable requirements. Each franchise, license, and ROW
use agreement shall include terms of use and be deemed to incorporate
the terms of this Article and other applicable laws of the City, except
as may be expressly stated in such use agreement, license or franchise.
C.
Condition Precedent To Permit. Unless otherwise required by applicable
law, no permit may be issued unless or until such person has a valid
franchise, license or rights-of-way use agreement with the City that
authorizes that person's use of the rights-of-way. Unless prohibited
by applicable law, in addition to any other reason provided herein,
the Director may deny a ROW permit to any person that does not have
a valid franchise, ROW use agreement, or license with the City.
[Ord. No. 420, 1-13-2020]
A.
Application Form. An application for a franchise or ROW use agreement
shall be provided to the City on City forms and shall include all
such information as is required by this Article and as determined
necessary by the Director. The ROW user shall be responsible for accurately
maintaining the information in the application during the term of
any franchise or ROW use agreement and shall be responsible for all
costs incurred by the City due to the failure to provide or maintain
as accurate any application information required herein.
B.
Application Deposit Fee. An application deposit of five hundred dollars
($500.00), or such other amount determined to be required by the Director,
shall be submitted with the application, which shall be utilized to
at least partly offset the City's costs in reviewing and issuing
an agreement, and not to exceed an amount permitted by applicable
law, provided that no costs shall be included if such inclusion is
prohibited by applicable law as to that person; any amount not used
by the City for its actual lawfully reimbursable costs will be refunded
upon request after execution of a ROW use agreement or franchise.
If applicable, the applicant shall be obligated to reimburse the City
for its reasonable expenses associated with the review, negotiation,
and adoption of an appropriate ROW use agreement or franchise that
may exceed the application deposit.
C.
Standard For Approval Or Renewal. In reviewing an application for
a new or renewal ROW use agreement or franchise, the City may consider
prior conduct of the person in performance of its obligations or compliance
with the City's ordinances in the past, or the existence of any
outstanding violations or deficiencies. The City may deny or condition
any ROW use agreement or franchise where the proposed use would interfere
with the public use of the rights-of-way or otherwise conflict with
the legitimate public interests of the City to fulfill the requirements
and objectives of this Article or as otherwise provided by law. All
ROW use agreements or franchises by ordinance or resolution of the
City Council and applications shall be decided on a non-discriminatory
basis and shall be approved, conditioned or denied based on compliance
with all applicable requirements herein, and conformance with applicable
law and the public interest.
D.
Approval Process. After submission by the applicant of a duly executed
and completed application, deposit fee, and executed franchise or
rights-of-way use agreement as may be provided by the Director or
as modified by the Director in review of the specific circumstances
of the application, all in conformity with the requirements of this
Article and all applicable laws, the Director shall submit such agreement
to the Board of Aldermen for approval. Upon determining compliance
with this Article, the Board of Aldermen 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 Article)
and such executed franchise or ROW use agreement shall constitute
consent to use the rights-of-way; provided that nothing herein shall
preclude the rejection or modification of any executed franchise or
ROW use agreement submitted to the City to the extent applicable law
does not prohibit such rejection or modification, including where
necessary to reasonably and in a uniform or non-discriminatory manner
reflect the distinct engineering, construction, operation, maintenance,
public work, or safety requirements applicable to the person or use.
[Ord. No. 420, 1-13-2020]
A.
Excavation Permit Required. Except as otherwise provided herein,
no ROW user or other person shall perform excavation work in the ROW
without an excavation permit. Any person desiring to excavate in the
ROW shall first apply for an excavation permit, on an application
form provided by the City, and submit the application fee and pay
all applicable fees to obtain an excavation permit, in addition to
any other building permit, license, easement, or other authorization
required by law, unless such excavation must be performed on an emergency
basis as provided herein. The cost of said permit shall be set out
by the Director. The Director is authorized to draft an application
form consistent with the requirements of this Article. An excavation
permit should be obtained for each project unless otherwise provided
for in this Article. A separate special permit or lease shall be required
for excavation in or use of any real property interest of the City
that is not ROW. It shall be unlawful for any person to perform excavation
work within the City at any time other than from 6:00 A.M. to 9:00
P.M., Monday through Friday without prior approval from the City,
except in the case of an emergency. No work shall be performed during
City holidays, except in the case of an emergency. All excavation
permits shall expire after 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 Article shall not be refunded
the application fee.
B.
Facilities Maintenance Permit; Exemptions. No person shall perform
facilities maintenance at a specified location in the rights-of-way
without first obtaining a facilities maintenance permit from the Director,
except where such facilities maintenance is expressly authorized by
an existing valid excavation permit for the applicable facilities
maintenance location or is exempt herein. In addition to the applicable
conditions and obligations set forth in this Article, conditions of
a facilities maintenance permit shall be as established in such permit
and shall include requirements of notice to and approval by the City
whenever traffic lanes are to be obstructed, manhole covers or safety
barriers removed or altered, temporary or other barricades installed,
and other events set forth in the facilities maintenance permit. All
facilities maintenance permits shall expire after sixty (60) days
from the date of issuance, unless otherwise specified in such permit.
A facilities maintenance permit shall not be required for:
1.
ROW users performing routine maintenance which does not require
excavation, does not disrupt traffic or pedestrians, and requires
no more than four (4) hours to complete, provided that at minimum
two (2) 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; or
4.
Routine maintenance on previously approved small wireless facilities,
replacement of small wireless facilities that are the same or smaller
in size, weight, and height, or installation placement, maintenance,
operation, or replacement of micro wireless facilities that are strung
on cables between utility poles in compliance with applicable safety
and building codes, when such work will not involve excavation, affect
traffic patterns, obstruct traffic in the ROW, or materially impede
the use of a sidewalk, and provided the ROW user submits as-builts
of the new small wireless facilities or micro wireless facilities
so the City may maintain an accurate inventory of facilities installed
in the ROW.
C.
Bulk Permits. The Director shall have the authority to establish
procedures for bulk processing of applications and periodic payment
of fees.
D.
Emergencies. In the event of an emergency requiring immediate attention
to remedy defects, and in order to avoid loss of damage to person
or property, it shall be sufficient that the person conducting the
work shall as soon as practicable notify the City of the location
of the work and shall apply for the required ROW permit as soon as
practicable following the commencement of the work, not to exceed
the third business day thereafter, or as otherwise directed by the
City. In the event the City becomes aware of an emergency requiring
facilities work, the City shall attempt to contact a representative
of each ROW user affected, or potentially affected, by the emergency
work. If no response is received by a particular ROW user to whom
contact is attempted, the Director may take whatever action he/she
deems necessary to respond to the emergency, the cost of which shall
be borne by the person whose action or inaction occasioned the emergency
or by the ROW user if the emergency was occasioned by an act of nature.
E.
ROW Permit Specific Conditions. The Director may also impose reasonable
conditions upon the issuance of a permit and the performance of work
in order to protect the public health, safety, and welfare, to ensure
the structural integrity of the rights-of-way, to protect the property
and safety of other users of the rights-of-way, and to minimize the
disruption and inconvenience to the traveling public.
F.
Codes Incorporated. Every permit issued hereunder shall incorporate
the requirements and terms of this Article, agreements, and all applicable
ordinances, to the extent permitted by law. The ROW user shall perform
such work in accordance with the issued permit and applicable provisions
of this Article and any subsequent ordinances or regulations that
may be adopted by the City regarding excavation or facilities maintenance
work. In addition, all ROW users shall be subject to all technical
specifications, design criteria, policies, resolutions, and ordinances
now or hereafter adopted or promulgated by the City in the reasonable
exercise of its police power relating to permits and fees, sidewalk
and pavement cuts, facility location, construction coordination, surface
restoration, and other requirements on the use of the rights-of-way.
A ROW user shall perform all excavations or facilities maintenance
in full compliance with all applicable engineering codes adopted or
approved by the City, and in accordance with applicable Statutes of
the State of Missouri, and the rules and regulations of the Public
Service Commission, Federal Communications Commission, and any other
local, State or Federal agency having jurisdiction over the parties.
The ROW user shall comply with the excavation requirements of Missouri
One Call established by §§ 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.
G.
Tree And Landscape Protection. Upon ten (10) days' written notice
and with the supervision of the City or as otherwise provided by law
or agreement, the City may permit a ROW user to trim trees that overhang
rights-of-way of the City so as to prevent the branches of such trees
from coming in contact with facilities in the ROW, at its own expense,
subject to the supervision and direction of the City. Nothing in this
Subsection shall authorize the trimming of trees on private property
without permission of the property owner. All cut materials shall
be properly disposed. Unless otherwise approved in writing by the
City, a ROW user shall not remove, cut or damage any trees or their
roots in the rights-of-way. In reviewing any permit application, the
City may require the applicant to directionally bore around or otherwise
avoid disturbance to any tree or landscaping, existing facility, or
other protected area in the rights-of-way.
H.
Permit Displayed. At all times during the work, permits shall be
conspicuously displayed at the work site and shall be available for
inspection by the Director.
I.
Modification Requiring New Permit. If at any time it appears that
the duration or scope of the work is or will become materially different
from that allowed by the permit, the ROW user shall inform the Director.
The Director may issue a waiver, an extension or revised permit, or
require that the ROW user reapply for a permit in accordance with
all requirements of this Chapter.
[Ord. No. 420, 1-13-2020]
A.
The Director may deny an application for a permit if:
1.
To the extent permitted by law, the person does not have a current
franchise, license, or rights-of-way use agreement, or other authorization
with the City.
2.
The ROW user, or any persons acting on the behalf of the ROW
user, fails to provide all the necessary information requested by
the City for managing the rights-of-way.
3.
The ROW user, or any persons acting on the behalf of the ROW
user, including contractors or subcontractors, has a history of non-compliance
or permitting non-compliance 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 right-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 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.
5.
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.
[Ord. No. 420, 1-13-2020]
A.
The Director may, after reasonable notice and an opportunity to cure,
revoke a permit without fee refund, but only in the event of a substantial
breach of the terms and material conditions of the permit. A substantial
breach by a ROW user includes but is not limited to:
1.
A material violation of a provision of the permit;
2.
An evasion or attempt to evade any material provision of the
permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the City or its citizens;
3.
A material misrepresentation of fact in the permit application;
4.
A failure to complete work by the date specified in the permit,
unless a permit extension is obtained, or unless the failure to complete
the work is due to reasons beyond the ROW user's control;
5.
A failure to correct, within the time specified by the City,
work that does not conform to applicable national safety codes, industry
construction standards, or local safety codes, upon inspection and
notification by the City of the faulty condition; or
6.
Such other lawful reasons.
[Ord. No. 420, 1-13-2020]
A.
City-Required Relocation. The ROW user shall promptly remove, relocate,
or adjust any facilities located in the rights-of-way as directed
by the City when such is required by public necessity, or public convenience
and security require it, or such other findings in the public interest
that may require relocation, adjustment, or removal at the cost of
the ROW user. Such removal, relocation, or adjustment shall be performed
by the ROW user within the time frames established by the City and
at the ROW user's sole expense without any expense to the City,
its employees, agents, or authorized contractors and shall be specifically
subject to rules, regulations, and schedules of the City pertaining
to such.
B.
Emergency Exception. In the event of an emergency or where construction
equipment or facilities create or are contributing to an imminent
danger to health, safety, or property, the City may, to the extent
allowed by law, remove, re-lay, or relocate such construction equipment
or the pertinent parts of such facilities without charge to the City
for such action or for restoration or repair. The City shall attempt
to notify the person having facilities in the rights-of-way prior
to taking such action, but the inability to do so shall not prevent
same. Thereafter, the City shall notify the person having facilities
in the rights-of-way as soon as practicable.
C.
Third-Party Relocation. A person having facilities in the rights-of-way
shall, on the reasonable request of any person, other than the City,
holding a validly issued permit, after reasonable advance written
notice, protect, support, or temporarily disconnect or relocate facilities
to accommodate such person, and the actual cost, reasonably incurred,
of such actions shall be paid by the person requesting such action.
The person having facilities in the rights-of-way taking such action
may require such payment in advance.
D.
Abandonment Exception. Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (G) of this Section.
E.
ROW User Responsible For Damage. Any damages suffered by the City,
its agents or its contractors to the extent caused by the ROW user's
failure to timely relocate, remove or adjust its facilities, or failure
to properly relocate, remove, or adjust such facilities, shall be
borne by the ROW user. Where the ROW user shall fail to relocate facilities
as required by the City, the City may, but shall not be required to,
upon notice to the ROW user remove the obstructing facilities with
or without further delay, and the ROW user shall bear all responsibility
and liability for the consequences therefrom, and the City shall bear
no responsibility to the ROW user or others for damage resulting from
such removal.
F.
No Vested Rights. No action hereunder shall be deemed a taking of
property and no person shall be entitled to any compensation therefor.
No location of any facilities in the rights-of-way shall be a vested
interest or property right.
G.
Abandoned Facilities; Removal. A person owning abandoned facilities
in the rights-of-way must, not later than within thirty (30) days'
of notice or of abandonment, remove its facilities and replace or
restore any damage or disturbance caused by the removal at its own
expense. The Director may upon written application and written approval
allow underground facilities or portions thereof to remain in place
if the Director determines that it is in the best interest of public
health, safety, and general welfare to do so. The City shall be entitled
to all costs of removal and enforcement for any violation of this
provision.
H.
Nuisance. Facilities abandoned or otherwise left unused in violation
of this Article 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:
[Ord. No. 420, 1-13-2020]
A.
Compliance With Laws. Each ROW user shall comply with all applicable
Federal and State laws and regulations and rules as well as all City
ordinances, resolutions, rules, and regulations heretofore and hereafter
adopted or established.
B.
Zoning, Safety, And Building Code Compliance. ROW users shall at
all times be subject to the lawful exercise of the police powers of
the City, including but not limited to all police powers regarding
zoning, supervision of the restoration of the rights-of-way, building
and safety regulations, and control of the rights-of-way currently
in effect or as may be amended. Installation of all facilities in
the rights-of-way are subject to and must be in compliance with all
zoning and safety and building code requirements. For applications
for installation of any facility in the rights-of-way:
1.
The most restrictive adjacent underlying zoning district classification
shall apply unless otherwise specifically zoned and designated on
the official Zoning District Map; and
2.
No application shall be submitted for approval without attaching
the City's consent to use the rights-of-way for the specific
construction application in accordance with Chapter 67, RSMo., and
compliance with this Article.
C.
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.
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.
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 which states that the City is 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 other documentation, shall be provided. If
the person is self-insured, it shall provide the City proof of compliance
regarding its ability to self-insure and proof of its ability to provide
coverage in the above amounts. The City's additional insured
coverage shall have no deductible. The insurance requirements in this
Section or otherwise shall not apply to a ROW user to the extent and
for such period as the ROW user is exempted from such requirements
pursuant to § 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 therefor
so exempted unless otherwise provided by a ROW use agreement or franchise
or the City determines such exemption has not been adequately shown.
Additionally, in accordance with § 67.5121(3), a self-insured
ROW user shall not be required to obtain insurance naming the City
as an additional insured solely to the extent such ROW user is utilizing
"small wireless facilities" as defined in the Uniform small wireless
facility Deployment Act within the ROW. This exception to the City's
insurance requirements shall only apply as related to small wireless
facilities and shall not otherwise alter the obligations of a ROW
user to provide appropriate insurance to the City for any other activities
or operations. The City may waive any and all requirements under this
Subsection when deemed to be lawful and in the public interest.
F.
Performance And Maintenance Bonds.
1.
Bond Required. Prior to any work, a ROW user shall establish
in the City's favor a performance and maintenance bond in an
amount to be determined by the Director to guarantee the restoration
of the rights-of-way. The bond shall continue in full force and effect
for a period of forty-eight (48) months following completion of the
work. The Director may waive this requirement when the work involves,
as determined in the sole discretion of the Director, no or only minor
disruption or damage to the rights-of-way. The bond 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 § 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 therefor
so exempted, unless otherwise provided by a ROW use agreement or franchise
or the City determines such exemption has not been adequately shown.
The City may waive any and all requirements under this Subsection
for good cause when deemed to be lawful and in the public interest.
2.
Failure To Satisfactorily Complete Restoration. If a ROW user
fails to complete the work in a safe, timely, and competent manner
or if the completed restorative work fails without remediation within
the time period for the bond (as determined by the Director), then
after notice and a reasonable opportunity to cure, there shall be
recoverable, jointly and severally from the principal and surety of
the bond, any damages or loss suffered by the City as a result, including
the full amount of any compensation, indemnification, or cost of removal
or abandonment of any property of the ROW user and the cost of completing
work in or restoring the rights-of-way, up to the full amount of the
bond. The City may also recover against the bond any amount recoverable
against a security fund or letter of credit where such amount exceeds
that available under a security fund or letter of credit.
3.
Bond Terms. The bond shall be issued by a surety with an "A"
or better rating of insurance in Best's Key Rating Guide, Property/Casualty
Edition, shall be subject to the approval of the City's Attorney
and shall contain the following endorsement: "This bond may not be
canceled or allowed to lapse until sixty (60) days after receipt by
the City, by certified mail, return receipt requested, of a written
notice from the issuer of the bond of intent to cancel or not to renew."
4.
Exception. In lieu of the bond required herein, the ROW user
may establish in the City's favor such other security as the
Director may determine to be commensurate with the noted bonding requirements,
including, but not limited to, an annual bond to be maintained in
the minimum amount of twenty-five thousand dollars ($25,000.00). Additionally,
in accordance with § 67.5121(4), the bonds required for
"small wireless facilities" as defined in the Uniform Small Wireless
Facility Deployment Act shall not exceed one thousand five hundred
dollars ($1,500.00) per small wireless facility or more than seventy-five
thousand dollars ($75,000.00) for all small wireless facilities within
the ROW of a ROW user. This exception to the City's bonding requirements
shall only apply as related to such small wireless facilities and
shall not otherwise alter the obligations of a ROW user to provide
appropriate bonds to the City for any other activities or operations.
G.
Indemnification. Any person performing excavation or a ROW user as
a condition of use of the rights-of-way shall at its sole cost and
expense fully indemnify, protect, defend (with counsel acceptable
to the City), and hold harmless the City, its municipal officials,
officers, employees, and agents, from and against any and all claims,
demands, suits, proceedings, and actions, liability, and judgment
by other persons for damages, losses, costs, and expenses, including
attorney fees, arising, directly or indirectly, in whole or in part,
from the action or inaction of the person performing excavation or
the ROW user, its agents, representatives, employees, contractors,
subcontractors, or any other person for whose acts the person performing
excavation or ROW user may be liable, in constructing, operating,
maintaining, repairing, restoring, or removing facilities or other
structures, or use of the rights-of-way or the activities performed,
or failed to be performed, by the person performing excavation or
the ROW user under this Article or applicable law, or otherwise, except
to the extent arising from or caused by the sole or gross negligence
or willful misconduct of the City, its elected officials, officers,
employees, agents, or contractors. Nothing herein shall be deemed
to prevent the City or any agent from participating in the defense
of any litigation by their own counsel at their own expense. Such
participation shall not under any circumstances relieve the person
from the duty to defend against liability or its duty to pay any judgment
entered against the City, or its agents. This indemnification shall
survive the expiration or termination of any ROW use agreement, license,
or permit, provided, however, that in accordance with § 67.5121(2),
RSMo., a ROW user solely to the extent a ROW user is operating a "small
wireless facility" as defined in the Uniform Small Wireless Facility
Deployment Act within the ROW shall only indemnify and hold the City,
its officers and employees, harmless against any damage or personal
injury caused by the negligence of the ROW user, its employees, agents,
or contractors. This exception shall only apply to the ROW user's
small wireless facilities and shall not otherwise alter the obligations
of a ROW user to provide indemnification to the City for any other
activities or operations.
H.
ROW User Responsible For Costs. The ROW user shall be responsible
for all reasonable costs borne by the City that are directly associated
with the ROW user's installation, maintenance, repair, operation,
use, and replacement of its facilities in the rights-of-way, to the
extent permitted by law. All such costs shall be itemized and the
City's books and records related to these costs shall be made
available upon request of the ROW user.
[Ord. No. 420, 1-13-2020]
A.
Inspections. All work and facilities shall be subject to inspection
by the City and the supervision of all Federal, State, and local authorities
having jurisdiction in such matters to ensure compliance with all
applicable laws, ordinances, departmental rules and regulations, and
the permit.
B.
Stop-Work Orders. The Director shall have full access to all portions
of the work and may issue stop-work orders and corrective orders to
prevent unauthorized work or substandard work as established herein.
Except in cases of an emergency or with approval of the Director,
no work may be done in violation of a stop-work order issued by the
Director.
C.
Repairs When Defective. All violations of the standards and requirements
herein shall be corrected within the time specified in the issuance
of a written notice to correct. Action to correct violations which
require immediate action shall be taken upon notification to the person
by the City. Every person failing to comply with the oral or written
notice shall be deemed in violation of this Article. 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 Article in the absence
or in addition to the issuance of notice of violation.
D.
Appeals. Unless otherwise provided herein or by any other governing
ordinance or law, any person aggrieved by a decision, fee or requirement
established or made pursuant to this Article shall, prior to seeking
any judicial or statutory relief, if any, file a written appeal of
any such decision, fee, or requirement with the Board of Aldermen
within fifteen (15) days of such decision or imposition of such fee
or requirement specifying this provision and including specific details
of the alleged claim or grievance, and an evidentiary hearing shall
be held on such appeal by the Board of Aldermen or its designee to
render a final decision. Nothing herein shall deny or preclude any
additional applicable appeal remedy that may be granted and required
by Federal or State law after such decision.
E.
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 Article 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.
[Ord. No. 420, 1-13-2020]
In addition to any rights specifically reserved to the City
by this Article, 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
Article, 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 Article 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.
