[Ord. No. 23-2384, 5-1-2023]
A.
ROW Permit. A ROW Permit must be obtained for each project and all
work in the ROW unless otherwise provided for in this Chapter. Except
as required by law, no ROW Permit may be transferred or assigned without
the written application to and consent of the City based on the requirements
and policies of this Chapter. The City shall not unreasonably withhold
its consent, but any costs incurred shall be paid by the ROW User
to the extent not prohibited by applicable law. In the case of the
City granting consent to transfer, the transferee shall be subject
to the terms and conditions of the ROW Permit and this Chapter.
1.
Excavation Permit. No person shall make, or cause to be made,
any Excavation in any ROW without first obtaining an Excavation Permit
from the City as hereinafter provided, in addition to any other building
permit, license, easement, or other authorization required by law,
except public work done under authority of the Board of Aldermen by
the employees of the City, and except as otherwise provided in emergency
cases. All Excavation Permits shall expire after sixty (60) days from
the date of issuance, unless otherwise specified in the Excavation
Permit.
2.
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 Chapter, 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:
a.
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;
b.
Emergency situations as more fully described in Subsection (F)
below;
c.
Public work done under authority of the Board of Aldermen by
the employees of the City or Contractors working on the construction
or reconstruction of public improvements and which are operating pursuant
to a contract with the City for such construction; or
d.
Routine maintenance on previously approved "small wireless facilities,"
as defined by Section 67.5111, RSMo., replacement of such "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," as defined by Section 67.5111, RSMo.,
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 such new "small wireless facilities" or "micro
wireless facilities" so the City may maintain an accurate inventory
of Facilities installed in the ROW.
B.
Condition Precedent To ROW Permit. Unless otherwise required by applicable law, no ROW 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 general use of the Rights-of-Way as required by Article II above. 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.
C.
Resident Notification Required. 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. At a minimum and except for
emergency ROW work as provided herein, any person performing ROW work
that requires a ROW Permit shall provide written notice to all property
owners within one hundred eighty-five (185) feet of the site(s) at
least forty-eight (48) hours prior to starting any such ROW work.
Notice shall include a reasonably detailed description of work to
be done, the location of work, and the time and duration of the work.
D.
ROW Permit Index. The Director shall maintain indexes of all ROW
Permits issued, both by the ROW User and by the affected ROW.
E.
Emergency ROW Work. In case of an emergency where the public health
or safety is endangered and the office of the Director is not open
for business, the provisions of this Chapter relating to the issuance
of ROW Permits prior to commencement of work shall not apply. In such
case, the person making the ROW Work shall notify the Police Department
of the City that emergency work is being commenced and the location
thereof, and the work may proceed immediately including the procedures
herein for backfilling; provided, however, final surfacing or temporary
patches shall not be applied to any Excavation until such time as
the Director has inspected and approved the backfill and issued a
ROW Permit therefor. Application for the ROW Permit shall be made
on the first day on which the office of the Director is open for business
after the work is commenced. 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.
[Ord. No. 23-2384, 5-1-2023]
A.
Application Requirements. Application for ROW Permit(s) shall be
made, in writing, to the Director. The Director is authorized to draft
an application form consistent with the requirements of this Chapter.
Each application shall at minimum contain the following information
for the proposed ROW work, unless otherwise waived by the Director:
1.
The name, address, email, and telephone number of a representative
whom the City may notify or contact at any time (i.e., twenty-four
(24) hours per day, seven (7) days per week) concerning the work;
2.
If different from the applicant, the name, address, email, and
telephone number of the person on whose behalf the proposed work is
to be performed;
3.
A description of the proposed work, including a conceptual master
plan, landscaping plan, and an engineering site plan or other technical
drawing or depiction showing the nature, dimensions, location, and
description of the applicant's proposed work or Facilities, their
proximity to other Facilities that may be affected by the proposed
work and the number of street crossings and their locations and dimensions,
if applicable;
4.
Projected commencement and termination dates and anticipated
duration of the work or, if such dates are unknown, a representation
that the applicant shall provide the Director with reasonable advance
notice of such dates once they are determined;
5.
Copies of any required certificates of insurance or performance
and maintenance bonds;
6.
An application fee set by the Director in an amount to cover
the City's cost for review of the application and inspections
of the ROW work; and
7.
Any other amounts due to the City from the applicant, including,
but not limited to, prior delinquent fees, costs and any loss, damage,
or expense suffered by the City because of the applicant's prior
work in the ROW or for any emergency actions taken by the City, but
the Director may modify this requirement to the extent the Director
determines any such fees to be in good faith dispute.
B.
Bulk Permits. The Director shall have the authority to establish
procedures for bulk processing of applications and periodic payment
of fees.
C.
ROW Permit Review Time. The Director shall promptly review each completed
application for a ROW Permit and shall grant or deny all such applications
as provided herein within thirty-one (31) days of receipt thereof.
D.
No Warranties. No reference herein to the ROW shall be deemed to
be a representation or guarantee by the City that its interest or
other right to control the use of such property is sufficient to permit
its use. The City makes no express or implied representation or warranty
regarding its rights to authorize the installation or construction
of Facilities on any particular segment of Rights-of-Way and shall
not be liable for any damages therefrom. The burden and responsibility
for making all such determinations in advance of construction or installation
shall be entirely upon the ROW User. The ROW User shall be solely
liable for any damages to Facilities or other property due to Excavation,
Facilities Maintenance, or other work performed prior to obtaining
the location of all Facilities that have been properly identified
prior to such work.
E.
No Waiver. No action or omission of the City shall operate as a future
waiver of any rights of the City under this Chapter.
[Ord. No. 23-2384, 5-1-2023]
A.
Codes Incorporated. Every ROW Permit issued hereunder shall incorporate
the requirements and terms of this Chapter, any agreement with the
ROW User, 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 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 ROW 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 (1) 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.
B.
ROW Permit Displayed. At all times during the work, the ROW Permit
shall be conspicuously displayed at the work site and shall be available
for inspection by the Director.
C.
Modification Requiring New ROW 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 ROW Permit, the ROW User shall
inform the Director. The Director may issue a waiver, an extension
or revised ROW Permit, or require that the ROW User reapply for a
ROW Permit in accordance with all requirements of this Chapter.
D.
Minimum ROW Permit Terms. Each ROW permit issued by the Director
shall minimally include:
1.
Projected commencement and termination dates or, if such dates
are unknown at the time the permit is issued, a provision requiring
the ROW user to provide the Director with reasonable advance notice
of such dates once they are determined;
2.
Length of affected ROW, number of road crossings and identification,
methods of performing the ROW Work, and description of any pavement
or curb cuts included in the work;
3.
Information regarding scheduling and coordination of work, if
necessary;
4.
The location of any of the applicant's Facilities, both
those proposed and existing;
5.
An acknowledgment and representation by the applicant to comply
with the terms and conditions of the ROW Permit and this Chapter;
and
6.
Condition that installation and collocation of a "small wireless
facility" as defined by Section 67.5111, RSMo., shall be completed
within one (1) year of issuance of the ROW Permit or the ROW Permit
shall become null and void and shall no longer authorize installation
or collocation of such "small wireless facility."
E.
ROW Permit Conditions. The Director may also impose reasonable conditions
upon the issuance of a ROW Permit and the performance of work 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 (1) 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 or landscape restoration, except as otherwise provided in Section 510.085 hereof, when the established amount is reasonably determined to be insufficient;
4.
The design, location, and nature of all Facilities, based on
a non-discriminatory 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.
F.
Tree And Landscape Protection. Unless otherwise approved, in writing,
by the Director, a ROW user shall not remove, cut, or damage any trees
or their roots within the ROW. As a ROW Permit condition, the City
may require the ROW User to directionally bore around or otherwise
avoid disturbance to any tree or landscaping. Upon completion of any
ROW work and prior to close out of any ROW Permit, any disturbance
caused by the ROW work to landscape areas, including grass, shall
be fully replaced to its original before condition by the ROW User.
G.
Alternatives. It is the intention of the City that interference with,
damage to, Excavation or disruption of, or the placement of Facilities
within, the City's ROW should be minimized and limited in scope
to the extent allowed by law to achieve the purposes of this Chapter.
When reasonable and necessary to accomplish such purposes, the Director
may require as alternatives to the proposed ROW work either less disruptive
methods or different locations for Facilities, provided that any required
alternative:
[Ord. No. 23-2384, 5-1-2023]
A.
Denial. The Director may deny an application for a ROW 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
Subsection, "history of non-compliance or permitting non-compliance
within the City" shall include where the ROW User, or any persons
acting on the behalf of the ROW User, including contractors or subcontractors,
has failed to return the Rights-of-Way to its previous condition under
a previous ROW Permit, or has violated terms, or is in violation of
terms of this Chapter or the ROW User's 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 ROW Permit application, or a reasonable alternative route as permitted by Section 510.060(G).
5.
For reasons of environmental, historic, or cultural sensitivity
as defined by applicable Federal, State, or local law.
6.
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.
B.
Revocation. The Director may revoke a ROW Permit without fee refund
in the event of a substantial breach of the terms and conditions of
the ROW Permit or this Chapter. Prior to revocation, the Director
shall provide written notice to the ROW User identifying any substantial
breach or violation of this Chapter or ROW Permit and allowing a reasonable
period of time not longer than thirty (30) days to cure the violation,
which cure period may be immediate if certain activities must be stopped
to protect the public safety. The cure period shall be extended by
the Director on good cause shown by the ROW User. A substantial breach,
includes, but is not limited to, the following:
1.
A material violation of a provision of the ROW Permit or this
Chapter, including failure to provide notifications to persons affected
by the ROW work;
2.
An evasion or attempt to evade any material provision of the
ROW Permit or this Chapter, or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its residents;
3.
A material misrepresentation of fact in the ROW Permit application;
4.
A failure to complete ROW work by the date specified in the
ROW Permit, unless an extension is obtained or unless the failure
to complete the work is due to reasons beyond the ROW User's
control; and
5.
A failure to correct work that does not conform to applicable
national safety ordinances, industry construction standards, this
Chapter, the ROW Permit, or any other applicable ordinances.
C.
Ordinance Violations. Any breach of the terms and conditions of a
ROW Permit shall also be deemed a violation of this Chapter, and in
lieu of revocation, the Director may initiate prosecution of the ROW
User for such violation.
[Ord. No. 23-2384, 5-1-2023]
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 ROW 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.
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 and shoring and
bracing must be used as necessary to keep the sides of the trench
vertical and to prevent caving.
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.
Hours Of Activity. Unless otherwise stated on the issued ROW Permit, Non-Emergency
Excavations or Facilities Maintenance may only be performed during
the hours of 7:30 A.M. to 4:30 P.M. Monday through Friday, 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. The Director
shall have authority to further set the specific timeframe, including,
but not limited to, weekend work for the Excavation or ROW Maintenance
on the ROW permit based on the scope of work and desired location
of same.
E.
Restoring And Maintaining The Rights-of-Way.
1.
Restoration Requirement. To complete any ROW work, the ROW User
shall restore the ROW and surrounding areas, including, but not limited
to, any pavement, foundation, concrete slabs or curbs, screening,
landscaping, or vegetation and shall comply with other reasonable
conditions of the Director. Restoration of the ROW shall be completed
within the dates specified in the ROW Permit unless the Director issues
a waiver, extension, or a new or revised ROW Permit. All Excavation
and restoration work in the ROW shall conform to the applicable Standard
Construction Specifications For Sewers And Drainage Facilities of
the Metropolitan St. Louis Sewer District (MSD), the St. Louis County
Standard Specifications For Highway Construction, and those additional
requirements of the City.
2.
Backfill. It shall be the duty of any person making an Excavation
in the ROW to backfill such Excavations and restore the surface in
accordance with the City's minimum prescribed standards for such
surfaces or the following standards as determined by the Director.
a.
If the Excavations are made in the improved portion of the ROW,
twelve (12) inches of granular backfill will be placed over exposed
Facilities and controlled low strength material (CLSM) will fill the
hole within eight (8) inches of the finished surface for concrete
pavements. There will be a plastic membrane placed between the rock
base and the CLSM to prevent the material from bleeding into the rock
base. The remaining eight (8) inches will be restored by placing a
twenty-eight (28) day minimum strength, four thousand five hundred
(4,500) psi concrete mix.
b.
If the Excavations are made in the improved portion of an asphalt
or combination street, twelve (12) inches of granular backfill will
be placed over exposed Facilities, and CLSM will fill the hole within
nine (9) inches of the finished surface. There will be a plastic membrane
placed between the rock base and the CLSM to prevent the material
from bleeding into the rock base. The remaining nine (9) inches will
be restored by placing a six (6) inch thick, twenty-eight (28) day
minimum strength, four thousand five hundred (4,500) psi concrete
mix under a three (3) inch asphalt concrete lift of type C mix to
meet existing grades.
c.
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.
d.
Construction of asphalt driveway entrances in residential ROW
will be constructed of six (6) inches of compacted rock base and three
(3) inches of type C asphalt concrete mix. Construction of asphalt
driveway entrances in commercial ROW will be constructed of four (4)
inches of compacted rock base, seven and one-half (7 1/2) inches
of type X and three (3) inches of type C asphalt concrete mix. Concrete
driveway approaches will consist of a four (4) inch compacted rock
base and be a minimum of six (6) inches thick in residential ROW and
eight (8) inches thick in commercial ROW.
3.
Backfill Inspection. An inspection of the placement of backfill
shall be made by the City of Manchester Department of Public Works.
The ROW User must notify the City Engineer not later than 1:00 P.M.
of the workday before the backfill work is to be done to coordinate
the inspection. In addition to any other fee required herein, an inspection
fee of twenty-five dollars ($25.00) per hour, while backfilling and
repaving is in process, shall be paid to the City by any ROW User
performing backfill and repaving in paved streets, driveways, and
walks with either granular material or Excavated material.
4.
Failure To Restore; City Restoration; Costs. If a ROW user fails
to restore the ROW within the date specified either by the ROW Permit
or any extension thereof as granted by the Director, the City may
perform its own restoration. The City may also opt to perform its
own restoration regardless of any failure by the ROW User, in which
case the ROW Permit, or any amendment or revision thereto, shall note
such option. In either event, if the City performs the restoration,
the ROW User shall be responsible for reimbursing the City's
reasonable actual restoration costs within thirty (30) days of invoice.
A ROW user shall not be relieved of the obligation to complete the
necessary ROW restoration and maintenance because of the existence
of any performance bond required by this Chapter. If granular backfill
and repaving operations must be performed by the City of Manchester
Department of Public Works, a final estimate of the actual quantities
of the work done will be prepared by the Director. The rates to be
charged in preparing the cost estimates shall be at the prevailing
rate, as reasonably determined by the Director in his/her sole discretion.
If the final estimate is less than the deposit amount made at the
time of the permit application, a refund will be made; if such final
estimate is greater, a charge will be made for the balance. No subsequent
Excavation Permit will be issued until such balance has been paid
in full.
5.
Guarantee Of Work. Every ROW User in restoring the Rights-of-Way,
shall guarantee its work and shall maintain it for forty-eight (48)
months following its completion and in accordance with Section 67.1834,
RSMo. During the forty-eight (48) months, the ROW User shall, upon
notification from the Director, correct all restoration work to the
extent necessary, using any method as required by the Director. Said
work shall be completed within a reasonable time, not to exceed thirty
(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 forty-eight (48) months, or other
greater period allowed by law, from the date of the new restoration
requirements. The guarantee period shall be applicable to failure
of the pavement surface as well as failure below the pavement surface.
[Ord. No. 23-2384, 5-1-2023]
A.
Least Interference. ROW users shall not open or encumber more of
the rights-of-way than is reasonably necessary to complete the ROW
work in the most expeditious manner or allow Excavations to remain
open longer than is necessary to complete the work. All ROW Users
shall construct and maintain its Facilities so as not to interfere
with other users of the Rights-of-Way. The ROW User shall not interfere
with or alter the Facilities of the City or other ROW User without
their consent and shall be solely responsible for such. All Facilities
shall be installed and located to cause minimum interference with
the rights and convenience of property owners, other ROW users, and
the City. Facilities shall not be placed where they will disrupt or
interfere with other Facilities or public improvements or obstruct
or hinder in any manner the various utilities serving the residents
and businesses in the City or public improvements. Street crossings
will be bored at the direction of the Director.
B.
Barricades And Safety Devices. ROW Users assume 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.
All surplus Excavation materials, tools, or supplies at the site of
the Excavation or Facilities Maintenance shall be barricaded and lighted
at night in such a manner that all traffic may be warned of the existence
and location of such Excavations, Facilities Maintenance, and barricades.
C.
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.
Applicant shall follow applicable articles of the "St. Louis County
Standard Specifications for Highway Construction." Failure to provide
proper traffic control, protect the streets from possible damage,
protect City property, and provide proper safety measures in the interest
of public safety shall result in the City taking whatever action is
necessary to restore disrupted areas and the immediate revocation
of this Excavation Permit. ROW User shall maintain traffic flow at
all times. Where an Excavation is made entirely across a public highway,
and adequate detour for traffic is not available, substantial driveway
must be maintained across such Excavation until such Excavation is
refilled. Detours may not be established except on special permit
from the Director, and then only after notice to the Chief of Police
of the City and the Fire Protection District.
D.
Industry Standards. All ROW work shall be in accordance with all
applicable Sections of the Occupational Safety and Health Act of 1970,
the National Electrical Safety Code and other Federal, State, or local
laws and regulations that may apply, including, without limitation,
local health, safety, construction and zoning ordinances, and laws
and accepted industry practices, all as hereafter may be amended or
adopted. In the event of a conflict among ordinances and standards,
the most stringent ordinance or standard shall apply (except insofar
as that ordinance or standard, if followed, would result in Facilities
that could not meet requirements of Federal, State, or local law).
All ROW work shall be conducted in accordance with good engineering
practices, performed by experienced and properly trained personnel
so as not to endanger any person or property or to unreasonably interfere
in any manner with the rights-of-ways or legal rights of any property
owner, including the City, or unnecessarily hinder or obstruct pedestrian
or vehicular traffic.
E.
Licensed; Contractor Responsibility. Any contractor or subcontractor
of a ROW User must be properly licensed under laws of the State and
all applicable local ordinances, and each contractor or subcontractor
shall have the same obligations with respect to its work as a ROW
user would have pursuant to this Chapter. A ROW user:
1.
Must ensure that contractors, subcontractors, and all employees
performing ROW work are trained and experienced;
2.
Shall be responsible for ensuring that all permits are required
and that work is performed consistent with the ROW Permit and applicable
law;
3.
Shall be fully responsible for all acts or omissions of contractors
or subcontractors;
4.
Shall be responsible for promptly correcting acts or omissions
by any contractor or subcontractor; and
5.
Shall implement a quality control program to ensure that the
work is properly performed.
[Ord. No. 23-2384, 5-1-2023]
A.
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. City height
limitations, applicable zoning restrictions, and general City policies
with regard to all users of the Rights-of-Way shall be applicable
to all Facilities. The Director may establish such regulations or
policies as may be deemed necessary or appropriate to affect this
provision.
2.
Underground Facilities.
a.
In conjunction with the City's long-standing policy favoring
underground construction, no person may erect, construct, or install
new poles or other Facilities above the surface of the ROW without
the written permission of the City, based on good cause established
by the applicant and found by the City unless the City's authority
has been pre-empted by State or Federal law. Such permission may be
granted through a ROW Permit when other similar Facilities exist above
ground or when conditions are such that underground construction is
impossible, impractical, or economically unfeasible, as determined
by the City, and when in the City's judgment the above ground
construction has minimal aesthetic impact on the area where the construction
is proposed. Where reasonable and appropriate and where adequate Rights-of-Way
exists, the ROW User shall place above-ground Facilities underground
in conjunction with City capital improvement projects and/or at specific
locations requested by the City provided that such placement is practical,
efficient, and economically feasible. New utility poles and related
ground mounted equipment shall be permitted to be installed above
ground; provided, however, that to ensure unobstructed pedestrian
use and City maintenance of the ROW and minimize visual obstructions
for vehicular traffic, a new utility pole and any ground mounted equipment
related to that utility pole or the equipment thereon shall not be
installed within one hundred fifty (150) feet of another utility pole
or other ground mounted equipment on the same side of the ROW. A replacement
utility pole that is installed in lieu of an existing utility pole
and is installed within ten (10) feet of the existing utility pole,
shall not be considered a new utility pole subject to the spacing
requirements herein. Such spacing regulations as applied to that specific
site may be altered by the Board of Aldermen.
b.
During installation of Facilities and to the extent authorized
by law, existing underground conduits shall be used whenever feasible
and permitted by the owner thereof. Applicants shall cooperate with
each other and other ROW Users and the City for the best, most efficient,
least intrusive, most aesthetic, and least obtrusive use of the Rights-of-Way.
c.
Applicants shall participate in any joint planning, construction,
and advance notification of such work, including coordination and
consolidation of any Excavation of or disturbance to the ROW, as directed
by the Director. In the case of new construction or property development,
the developer or property owner shall give reasonable written notice
to other potential ROW Users as directed by the City of the particular
date on which open trenching will be available for installation of
Facilities. Costs of trenching and easements required to bring Facilities
within the development shall be borne by the developer or property
owner; except that if the Facilities are not installed within five
(5) working days of the date the trenches are available as designated
in the notice given by the developer or property owner, then once
the trenches are thereafter closed, the cost of new trenching shall
be borne by the person installing the Facilities.
3.
Above Ground Facilities.
a.
The Director may designate certain locations or Facilities in
the ROW to be excluded from use by the applicant for its Facilities,
including, but not limited to:
(1)
Ornamental or similar specially designed street
lights;
(2)
Designated historic areas;
(3)
Facilities, equipment, structures, or locations
that do not have electrical service adequate or appropriate for the
proposed Facilities or cannot safely bear the weight or wind loading
thereof;
(4)
Facilities, equipment, structures, or locations
that in the reasonable judgment of the Director are incompatible with
the proposed Facilities or would be rendered unsafe or unstable by
the installation; and
(5)
Facilities, equipment, structures, or locations
that have been designated or planned for other use or are not otherwise
available for use by the applicant due to engineering, technological,
proprietary, legal, or other limitations or restrictions.
b.
Above ground facilities shall be a neutral color and shall not
be bright, reflective, or metallic. Black, gray, and tan shall be
considered neutral colors, as shall any color that blends with the
surrounding dominant color and helps to camouflage the Facilities.
Facilities shall be located in such a manner as to reduce or eliminate
their visibility. A sight proof landscape screen may be required for
any authorized above ground facilities taller than three (3) feet
in height or covering in excess of four (4) square feet in size. Such
screening shall be sufficient to reasonably conceal the Facility.
A landscape plan identifying the size and species of landscaping materials
shall be approved by the Director prior to installation of any Facility
requiring landscape screening. The person having Facilities within
the ROW shall be responsible for the installation, repair, or replacement
of screening materials. Alternative screening or concealment may be
approved by the Director to the extent it meets or exceeds the purposes
of these requirements.
c.
Above ground facilities shall be constructed and maintained
in such a manner so as not to emit any unnecessary or intrusive noise
and shall comply with all other applicable regulations and standards
established by the City or State or Federal law.
d.
If the application of this Subsection excludes locations for
above ground facilities to the extent that the exclusion conflicts
with the reasonable requirements of the applicant, the Director shall
cooperate in good faith with the applicant to attempt to find suitable
alternatives, but such alternatives may exceed the cost increase limitation
established by Section 515.060.G and the City shall not be required
to incur any financial cost or to acquire new locations for the ROW
User.
4.
Use Of Existing Poles/Facilities Required; Exceptions. All new
Facilities 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 ROW User must either use such Facilities or file a written
request verified by the ROW User for exception specifying the specific
reasons why such Facilities are not available or feasible to be used.
B.
Antennas And Facilities. Pursuant to City authority, including Section
67.1830(f), RSMo., and the Uniform Small Wireless Facility Deployment
Act (Section 67.5110 et seq., RSMo.), and to properly manage
the limited space in the Right-of-Way, minimize obstructions and interference
with the use of the Right-of-Way by the public, and to ensure public
safety, while also seeking to facilitate delivery of broadband technologies
to City residents and businesses, Antennas shall be permitted in the
Right-of-Way in compliance with the requirements applicable to other
Facilities and users in the Right-of-Way, and subject to the additional
requirements set forth in this Section for wireless Antennas and Facilities.
1.
General Conditions. Any wireless Facilities shall be subject
to conditions relating to the location (including prohibited or limited
locations), design, height, appearance, safety, radio frequency, and
other interference issues as may be lawfully imposed by the City where
necessary or appropriate to protect the public, and to conform to
policies and interests of the public as may be set forth in special
district plans, historic areas, or other policies as may be reasonably
adopted by the City to address changing infrastructure, technology,
and uses of the Right-of-Way and/or City Facilities. A wireless Facility
shall not be located or installed in a manner that results in interference
with or impairs the operation of existing utility Facilities or City
or third-party attachments. Wireless Antennas or Facilities shall
further comply with:
a.
All applicable requirements for installation of any Facilities in
the ROW as set forth in this Chapter including a ROW Permit;
b.
The requirements of this Section; and
c.
Requirements for installation of wireless Antennas and Facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Section 67.5090 et seq., RSMo.), Uniform Small Wireless Facility Deployment Act (Section 67.5110 et seq., RSMo.), applicable zoning, building, and other regulations and approvals, specifically including Chapter 405.
2.
Specific Conditions.
a.
Small Wireless Facilities. Any "small wireless facility" meeting
the requirements for "small wireless facility" as defined by Section 67.5111,
RSMo., shall be authorized to be located in the Right-of-Way with
approval of the Director subject to the following additional requirements:
(1)
If proposing to install a new utility pole, compliance
with the spacing requirements herein;
(2)
Compliance with Section 67.5113.3(9), RSMo.,
to the satisfaction of the City;
(3)
For collocations on City poles, all make-ready
estimates for the pole, including replacement costs where necessary
for the safety and reliability of the pole, as determined by the City;
(4)
Attestation that the proposed "small wireless facility"
meets the volumetric requirements to meet the definition of a "small
wireless facility" in compliance with Section 67.5111, RSMo.;
and
(5)
Any other requirements which may be applicable
to the proposed "small wireless facility" pursuant to the Uniform
Small Wireless Facility Deployment Act (Section 67.5110 et seq.,
RSMo.).
b.
All Other Wireless In Right-Of-Way. Any wireless facility not
meeting the requirements for Small Wireless Facilities above may be
approved, subject to reasonable and non-discriminatory conditions
as may be imposed consistent with the purposes of this Section, only
upon approval by the Board of Aldermen upon a determination by the
Board of Aldermen that such Facility is:
(1)
In the public interest to provide a needed service
to persons within the City;
(2)
Cannot feasibly meet all of the requirements but
varies from such requirements to the minimum extent necessary;
(3)
Does not negatively impact appearance or property
values in light of the location, design, and circumstances to be approved;
(4)
Does not create any reasonable safety risk; and
(5)
Complies with all applicable zoning, Right-of-Way,
and other applicable requirements.
3.
Wireless Facility Compensation Requirements. If the small wireless
facility as defined by Section 67.5111, RSMo., is to be located
on a City Facility in the ROW, an annual payment of one hundred fifty
dollars ($150.00) per attachment shall be required.
4.
Application Requirements. Any application including one (1)
or more wireless Antennas or Facilities shall include all applicable
and lawful requirements for:
a.
Installation of any facilities in the right-of-way as set forth in
this Section;
b.
The requirements of this Subsection; and
c.
Requirements for installation of wireless Antennas and Facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Section 67.5090 et seq., RSMo.), Chapter 405, and other applicable law, including written proof of consent of the landowner and of the structure owner.
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 drawn to scale and certified
to the City showing the exact location of Facilities installed in
the ROW. Such records may be provided to the Director in the form
maintained by the ROW user, but when available to the ROW User, shall
be submitted in automated formats that are compatible with City systems,
as determined by the Director, or in hard copy otherwise. As a condition
of continued ROW use, all ROW Users shall, on an annual basis, provide
the City with such as-builts or other detailed maps of the ROW User's
current facilities. Such annual requirement may be waived by the Director
upon written request.
D.
Subordinate Uses. ROW User's use shall be in all situations
subordinate and subject to public municipal use.
E.
Relocation Of Equipment And Facilities.
1.
City Required Relocation. The ROW User shall promptly remove,
relocate, or adjust any Facilities located in the Rights-of-Way as
directed by the City when such is required by public necessity, or
public convenience and security require it, or such other findings
in the public interest that may require relocation, adjustment, or
removal at the cost of the ROW User. Such removal, relocation, or
adjustment shall be performed by the ROW User within the time frames
established by the City and at the ROW User's sole expense without
any expense to the City, its employees, agents, or authorized contractors
and shall be specifically subject to rules, regulations, and schedules
of the City pertaining to such.
2.
Emergency Exception. In the event of an emergency or where construction
equipment or Facilities create or are contributing to an imminent
danger to health, safety, or property, the City may, to the extent
allowed by law, remove, re-lay, or relocate such construction equipment
or the pertinent parts of such Facilities without charge to the City
for such action or for restoration or repair. The City shall attempt
to notify the Person having Facilities in the Rights-of-Way prior
to taking such action, but the inability to do so shall not prevent
same. Thereafter, the City shall notify the person having Facilities
in the Rights-of-Way as soon as practicable.
3.
Third-Party Relocation. A person having Facilities in the Rights-of-Way
shall, on the reasonable request of any person, other than the City,
holding a validly issued ROW Permit, after reasonable advance written
notice, protect, support, or temporarily disconnect or relocate Facilities
to accommodate such person and the actual cost, reasonably incurred,
of such actions shall be paid by the person requesting such action.
The person having Facilities in the Rights-of-Way taking such action
may require such payment in advance.
4.
Abandonment Exception. Rather than relocate Facilities as requested or directed, a ROW User may abandon the Facilities if approved by the City as provided in Subsection (E)(7) of this Section.
5.
ROW User Responsible For Damage. Any damages suffered by the
City, its agents or its contractors to the extent caused by the ROW
User's failure to timely relocate, remove, or adjust its Facilities,
or failure to properly relocate, remove, or adjust such Facilities,
shall be borne by the ROW User. Where the ROW User shall fail to relocate
Facilities as required by the City, the City may, but shall not be
required to, upon notice to 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.
6.
No Vested Rights. No action hereunder shall be deemed a taking
of property and no person shall be entitled to any compensation therefor.
No location of any Facilities in the Rights-of-Way shall be a vested
interest or property right.
7.
Abandoned Facilities; Removal. A person owning Abandoned Facilities
in the Rights-of-Way must not later than thirty (30) days of written
notice or of abandonment remove its Facilities and replace or restore
any damage or disturbance caused by the removal at its own expense.
The person shall obtain a ROW Permit and shall abide by all requirements
of this Chapter. If the person fails to remove the Facilities after
having been directed to do so, the City may, to the extent permitted
by law, have the removal done at the person's expense. 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. Abandoned
Facilities or otherwise left unused in violation of this Chapter are
deemed a nuisance. If the person fails to remove the Facilities after
having been directed to do so, the City may, to the extent permitted
by law, abate the nuisance or decide that the ownership of the Facilities
should be transferred to the City or to such person as directed by
the City. In either case, the owner of the Facilities shall submit
a written instrument, satisfactory in form to the City, transferring
to the City, or to such person as directed by the City, ownership
of the Facilities. The City may sell, assign, or transfer all or part
of the Facilities so transferred. The City shall not remove or seek
to possess or transfer the Facilities until thirty (30) days have
passed following written notice by the Director to the person having
Facilities within the ROW of the City's intent to so act. The
Director may choose not to act on good cause shown by the person having
Facilities within the ROW.
[Ord. No. 23-2384, 5-1-2023]
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 Chapter.
C.
No Cause Of Action Against The City. As a condition for use of the
Rights-of-Way, a ROW User shall have no damages, remedy, or monetary
recourse whatsoever against the City for any loss, cost, expense,
or damage arising from any of the provisions or requirements of any
ROW Use Agreement, Franchise, or License, or because of the enforcement
thereof by 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.
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. The Facilities
installed shall be of durable quality.
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 Section 537.610, RSMo., for political subdivisions; provided,
that nothing herein shall be deemed to waive the City's sovereign
immunity. An endorsement which states that the City as an additional
insured with full and equivalent coverage as the insured under the
insured's policy and stating that the policy shall not be cancelled
or materially modified so as to be out of compliance with the requirements
of this Section, or not renewed without thirty (30) days' advance
written notice of such event being given to the Director, along with
copies of the policy and 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 Section 67.1830(6)(a), RSMo., and has on file with
the City Clerk an affidavit certifying that ROW User has twenty-five
million dollars ($25,000,000.00) in net assets and is otherwise therefore
so exempted unless otherwise provided by a ROW Use Agreement or Franchise
or the City determines such exemption has not been adequately shown.
Additionally, in accordance with Section 67.5121(3), RSMo., a
self-insured ROW user shall not be required to obtain insurance naming
the City as an additional insured solely to the extent such ROW user
is utilizing "small wireless facilities" as defined in the Uniform
Small Wireless Facility Deployment Act within the ROW. This exception
to the City's insurance 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 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 as more fully provided in Section 510.080(E). 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 City may waive any and all requirements under this Subsection when deemed to be lawful and in the public interest.
2.
Failures Subject To Bond. 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
cancelled or allowed to lapse until sixty (60) days after receipt
by the City, by certified mail, return receipt requested, of a written
notice from the issuer of the bond of intent to cancel or not to renew."
4.
Exceptions. In lieu of the bond required herein, the ROW User
may establish in the City's favor such other security as the
Director may determine to be commensurate with the noted bonding requirements,
including, but not limited to, an annual bond to be maintained in
the minimum amount of twenty-five thousand dollars ($25,000.00). The
bond requirements in this Section or otherwise shall not apply to
a ROW User to the extent and for such period as the ROW User is exempted
from such requirements pursuant to Section 67.1830(6)(a), RSMo.,
and has on file with the City Clerk an affidavit certifying that ROW
User has twenty-five million dollars ($25,000,000.00) in net assets
and is otherwise therefore 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 Section 67.5121(4),
RSMo., the bonds required for "small wireless facilities" as defined
in the Uniform Small Wireless Facility Deployment Act shall not exceed
one thousand five hundred dollars ($1,500.00) per "small wireless
facility" or more than seventy-five thousand dollars ($75,000.00)
for all "small wireless facilities" within the ROW of a ROW user.
This exception to the City's bonding requirements shall only
apply as related to such "small wireless facilities" and shall not
otherwise alter the obligations of a ROW user to provide appropriate
bonds to the City for any other activities or operations.
G.
Indemnification. Any person performing excavation or a ROW user as
a condition of use of the right-of-way shall at its sole cost and
expense fully indemnify, protect, defend (with counsel acceptable
to the City), and hold harmless the City, its municipal officials,
officers, employees, and agents, from and against any and all claims,
demands, suits, proceedings, and actions, liability, and judgment
by other persons for damages, losses, costs, and expenses, including
attorney fees, arising, directly or indirectly, in whole or in part,
from the action or inaction of the person performing excavation or
ROW user, its agents, representatives, employees, contractors, subcontractors,
or any other person for whose acts the person performing excavation
or ROW user may be liable, in constructing, operating, maintaining,
repairing, restoring, or removing facilities or other structures,
or use of the right-of-way or the activities performed, or failed
to be performed, by the person performing excavation or 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 agreement, license, or ROW permit for a
period of five (5) years after the effective date of expiration or
termination. Provided, however, that in accordance with Section 67.5121(2),
RSMo., a ROW user which is a wireless provider, as defined by Section
67.5111, RSMo., for and in relation to that wireless providers operation
of "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 ROW User's installation, Maintenance, repair, operation,
use, and replacement of its Facilities in the Rights-of-Way that are
not otherwise accounted for as part of the ROW Permit fee established
pursuant to this Chapter, to the extent permitted by law. All such
costs shall be itemized and the City's books and records related
to these costs shall be made available upon request of the ROW User.
I.
Property Repair And Alterations. During any ROW work, the person
doing the work shall protect from damage any and all Facilities belonging
to the City and any other person. Any and all Rights-of-Way, public
property, or private property disturbed or damaged during the work
shall be repaired or replaced by the person doing the work or the
person on whose behalf the work is being done, and such person shall
immediately notify the owner of the fact of any damaged property.
Such repair or replacement shall be completed within a reasonable
time specified by the Director and to the Director's satisfaction.
Any alteration to the existing water mains, sewerage, or drainage
system or to any City, State, or other public structures or Facilities
in the Rights-of-way required on account of the construction, installation,
repair, or maintenance of Facilities within the Rights-of-Way shall
be made at the sole cost and expense of the owner of such Facilities.
[Ord. No. 23-2384, 5-1-2023]
A.
Inspections. All Facilities and ROW Maintenance shall be subject
to inspection by the City and the supervision of all Federal, State,
and local authorities having jurisdiction in such matters to ensure
compliance with all applicable laws, ordinances, departmental rules,
and regulations and the ROW Permit.
B.
Stop Work Orders. The Director shall have full access to all portions
of the ROW work and may issue stop work orders and corrective orders
to prevent unauthorized work or substandard work. Such orders:
1.
May be delivered personally or by certified mail to the address(es)
listed on the application for the ROW Permit or the person in charge
of the construction site at the time of delivery;
2.
Shall state that substandard work or work not authorized by
the ROW Permit is being carried out, summarize the substandard or
unauthorized work, and provide a period of not longer than thirty
(30) days to cure the problem, which cure period may be immediate
if certain activities must be stopped to protect the public safety;
and
3.
May be enforced by equitable action in the Circuit Court of
St. Louis County, Missouri, and in such case, the person responsible
for the substandard or unauthorized work shall be liable for all costs
and expenses incurred by the City in enforcing such orders, including
reasonable attorney's fees, in addition to any and all penalties
established in this Chapter.
|
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
in this Chapter 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.
[Ord. No. 23-2384, 5-1-2023]
A.
Enforcement: Attorneys' Fees. The City shall be entitled to
enforce any provision of this Code through all remedies lawfully available,
and any person determined to have violated the terms of this Code
shall further be liable to pay the City's costs and attorneys'
fees in enforcing such Code provisions. Additionally, any user of
City services, Rights-of-Way, or other City Facilities or property,
shall, as a condition of such use or continued use, to the full extent
permissible by law, be liable to pay the City's costs and attorneys'
fees incurred in enforcing any lawful requirement applicable to such
use, whether arising in contract, statute, ordinance, or other enforceable
duty as to such use.
B.
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 Chapter 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 in accordance
with Chapter 536, RSMo. Contested case requirements shall be held
on such appeal by the Board of Aldermen 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.
C.
Penalty. In addition to any other penalties and remedies for violations that may exist in law or equity, any person violating any of the provisions of this Article shall be subject to those penalties established in Section 100.100 of the Code of Ordinances of the City of Manchester. Each day the violation continues may be charged as a separate offense.
[Ord. No. 23-2384, 5-1-2023]
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, ROW 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.
