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HomeMy WebLinkAbout1578 Amending City Code 250 Management of Right-of-Way BILL NO: 2018-008 ORDINANCE NO:!s79 AN ORDINANCE AMENDING CITY CODE CHAPTER 250 AS IT RELATES TO MANAGEMENT OF THE CITY'S RIGHT-OF-WAY. WHEREAS, the City is authorized to enact certain regulations to manage its Right-of-Way and recover its management costs for the same; and WHEREAS,the City has specifically been granted authority including Section 67.1830 RSMo., to establish permitting requirements for towers and other structures or equipment for Wireless Communication Facilities in the Right-of-Way and the City desires to reaffirm its intent to regulate and enforce permitting requirements for the Wireless Communication Facilities in the Right-of-Way; and WHEREAS,the Board of Aldermen's legislative findings include that: (a)the Right-of-Way is a unique and physically limited resource; (b)the Right-of-Way is critical to the travel and transportation of persons and property in the City; (c)the Right-of-Way intended for public uses and must be managed and controlled consistent with that intent; and can be partially occupied by Facilities or utilities and public service entities to the enhancement of the health, welfare, and general economic well-being of the City and its citizens; (d)to avoid disruption of the market and violation of Section 67.5094 RSMo. prohibition on having preferential treatment for wireless facilities based on ownership,wireless facilities in the Right- of-Way shall be subject to the same zoning and compensation requirements for all wireless facilities, regardless of location; and (e) such requires adoption of specific additional regulations to ensure coordination of users,maximize available space,reduce maintenance and costs to the public,and facilitate entry of a maximum number of ROW-Users in the public interest; and WHEREAS, consistent with state and federal law and the Board of Aldermen's legislative findings,the Board of Aldermen desires to amend their current ROW Management Code. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN FOR THE CITY OF RIVERSIDE, MISSOURI, as follows: SECTION 1.The above recital clauses are hereby specifically incorporated herein by reference. SECTION 2. That Section 250.020 of the Municipal Code ("Code") of the City of Riverside, Missouri ("City")is hereby amended to read as follows: Section 250.020 Purpose. A. The purpose and intent of this Chapter is to: 1. Conserve the limited physical capacity of the right of ways held in public trust by the City. 2. Permit and manage reasonable access to the right of way of the City. 3. Maintain a competitively neutral and non-discriminatory policy to ROW Users and resell service providers and allow the citizens of the City to receive the benefits of market competition. 4. Facilitate orderly construction and maintenance of facilities in the right-of-way reduce the damage to the facilities or ROW Users, and minimize disruption of service to the citizens of the City. 5. Assure that the City can continue to fairly and responsibility protect the public health, safety and welfare. 6. Enable the City to discharge its public trust consistent with rapidly evolving Federal and State telecommunications regulatory policies, industry competition and technological development. 7. Establish a local policy concerning communications (including telecommunications) providers and services. 8. Encourage the provision of advanced and competitive communications services on the widest possible basis to the businesses, institutions and residents of the City. 9. Establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of the right of way. SECTION 3. That Section 250.030 of the Code of the City is hereby amended to read as follows: Section 250.030 Definitions. For the purpose of this Chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings: ABANDONED FACILITIES Any equipment materials, apparatuses, devices or facilities that are either declared abandoned by the owner of such equipment or facilities;or,no longer in active use,physically disconnected from a portion of the operating facility or any other facility that is in use or in service, and no longer capable of being used for the same or similar purpose for which the equipment, apparatuses or facilities were installed; or no longer in active use and the owner of such equipment or facilities fails to respond within 30 days to a written notice sent by the City,or as otherwise may be defined by applicable law. ADMINISTRATOR The City Administrator of the City or his or her designee(s). ADMINISTRATIVE FEE The fee charged by the City to recover its cost incurred for Right-of-Way management; including, but not limited to, costs associated with registering applicants; issuing, processing, and verifying Right-of-Way permit applications;inspection of job sites and restoration improvements;protecting or moving public utility right-of-way user construction equipment after reasonable notification to the public utility right-of-way user during public right-of-way work; determining the adequacy of Right-of-Way restoration; restoring work inadequately performed after providing notice and the opportunity to correct the work; revoking Right-of-Way permits and, other costs that may be considered "management costs" or "Right-of-Way management costs" under section 67.1830 RSMo. the City may incur in managing the provisions of this chapter. AFFLIATE Any person controlling, controlled by, or under the common control of a ROW user or reseller service provider ANTENNA Any device that transmits and/or receives electromagnetic wireless radio waves or signals for voice, data or video communications purposes including, but not limited to, television, text, AM/FM radio, microwave, cellular telephone, communications service, or otherwise. APPLICANT Any person requesting permission to occupy, lease, or operate facilities using the Right-of-Way, or to excavate the Right-of-Way. BOARD The Board of Aldermen of the City. CABLE ACT The Cable Communications Policy Act of 1984, 47 U.S.C. §532 et seq., as now and hereafter amended. CABLE INTERNET SERVICES The offering of direct access by a cable license to the international computer network of both Federal and non-Federal interoperable packet switched data networks to customers for a fee. "Cable Internet Service" shall mean the direct access to the Internet provided to customers over the cable facilities and shall include the provision of incidental services or revenues that are required by law to be treated under the same regulation as such direct access service. CABLE OPERATOR A person providing or offering to provide cable service within the City. CABLE SERVICE Shall have the same meaning provided by the Cable Act. CITY The City of Riverside, Missouri. CITY PROPERTY Includes all real property owned in fee or leased by the City, other than right of way, and all property held in a proprietary capaCity by the City, including but not limited to City parks, City Hall, the community center, any public safety facilities or any public works facilities, which are not subject to right-of-way permitting as provided in this Chapter. COMMUNICATIONS FACILITIES See"Utility" and"Utility Facilities." COMMUNICATIONS SERVICE The transmission via facilities,in whole or in part, of any writing, signs, signals,pictures, sounds, or other forms of intelligence through wire,wireless,or other means,including,but not limited to, any telecommunications service,enhanced service,information service,or internet service,as such terms are now, or may in the future be, defined under applicable law, and including all instrumentalities, facilities, apparatus (communications facilities), and services (among other things, the receipt, forwarding, and delivery of telecommunications) incidental to such transmission or designed to directly or indirectly facilitate or accept such transmission and shall also include"video services"as defined in§67.2677 RSMo. The term"Communications Service" does not include the rental of conduit or physical Facilities. CONSTRUCTION Includes the construction, installation, erection, building, affixing, or otherwise placing any fixed structure or object in, on,under,through or above the right-of-way. EMERGENCY Includes but is not limited to the following: (1) An unexpected or unplanned outage, cut, rupture, leak, or any other failure of a public utility facility that prevents or significantly jeopardizes the ability of the public utility to provide service to customers; (2) An unexpected or unplanned outage, cut, rupture, leak, or any other failure of a public utility facility that results or could result in danger to the public or a material delay or hindrance to the provision of service to the public if the outage, cut, rupture, leak, or any other such failure of public utility facilities is not immediately repaired, controlled, stabilized, or rectified; or (3) Any occurrence involving a public utility facility that a reasonable person could conclude, under the circumstances, that immediate and undelayed action by the public utility is necessary and warranted. EXCAVATE OR EXCAVATION 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 that the following shall not be deemed excavation: (1) Any de minimis displacement or movement of ground caused by pedestrian or vehicular traffic; (2) The replacement of utility poles and related equipment at the existing general location that does not involve either a street or sidewalk cut; or (3) Any other activity which does not disturb or displace surface conditions of the earth, asphalt,concrete, sand, gravel, rock, or any other material in or on the ground. EXCAVATION PERMIT The permit which,pursuant to this Chapter,must be obtained before a person may install,excavate and/or obstruct the right of way in connection with facilities. EXCAVATION PERMITTE Any person to whom an excavation permit has been granted by the City under this Chapter. EXCESS CAPACITY The remaining volume or capacity in any existing or future duct, conduit, manhole, handhold or other utility facility within the right of way that is or will be available for use of communications facilities. EXTRAORDINARY CIRCUMSTANCES Any unforeseeable event beyond the reasonable control of the non-performing person, including strikes and lockouts (except where such strikes or lockouts are, directly or indirectly, within the power of the person involved in extraordinary circumstances to prevent), fire, earthquake, floods, war, riots, confiscation or nationalization, whether imposed by law, decree or regulation by any governmental authority, provided such event is not caused, directly or indirectly, by the financial ability, failure to make any required payment, negligence, intentional conduct or misconduct of the non-performing person,including its officers,employees,agents and Affiliates,and such event makes such person's performance of its obligations hereunder impossible or so impracticable as reasonably to be considered impossible under the circumstances. FACILITIES See "Utility"and"Utilities Facilities." FCC The Federal Communications Commission or other Federal administrative agency, or lawful successor,authorized to regulate and oversee communications carries, services and providers on a national level. FRANCHISE The rights and obligations extended by the City to certain utilities to occupy City Right-of-Way for the purpose of providing certain forms of utility service to any person or areas within the City's limits and boundaries INSTALL To construct or install facilities within the right of way. LINEAR FOOT 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 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. Each provider shall be subject to a separate linear foot charge for facilities used by provider and subject to this Code. LICENSE The rights and obligations extend by the City to a person, corporation, association, firms, partnerships, or others to use and occupy the City Right-of-Way for the purpose of installing temporary facilities within the Right-of-Way or incidental uses such as ingress and egress facilities, lateral utility lines, mailboxes, or driveway aprons. LOCAL REPRESENTATIVE A local person,or designee of such person,authorized by a registrant to accept service and to make decisions for that registrant regarding all matters within the scope of this Chapter. MANAGING THE RIGHT OF WAY The actions the City takes, through reasonable exercise of its police powers, to impose rights, duties and obligations on all users of the Right-of-Way, including the City itself, in a reasonable, competitively neutral and nondiscriminatory and uniform manner, reflecting the distinct engineering, construction, operation, maintenance and public work and safety requirements applicable to the various users of the public Right-of-Way, provided that such rights, duties and obligations shall not conflict with any federal law or regulation. MINOR WORK Only routine service operations in the right of way. OBSTRUCT To place any tangible object within a right of way so as to hinder free and open passage over that or any part of the right of way. OVERHEAD FACILITIES Utility facilities and communications facilities located above the surface of the ground, including the underground supports and foundations for such facilities. PERMITTEE Any person to whom a permit has been issued to work,excavate,or locate specific facilities within the right-of-way. PERSON Any natural or corporate person, business association,or business entity including but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing or any other legal entity. PUBLIC STREET Any highway, street,cartway, alley or other public right-of-way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes not inconsistent with facilities. PUBLIC WAYS See "Right of Way" PUBLIC WAYS USE PERMITTEE See"Right of Way User" REPAIR The temporary construction work necessary to make the right of way usable for travel. RESELLER SERVICE PROVIDER A person providing service within the City limits that does not have its own facilities in the Right- of-Way, but instead uses the Right-of-Way by interconnecting with the network elements of a ROW user utilizing the Right-of-Way, and/or by using excess capacity from a ROW user with no right to physically access facilities or the Right-of-Way. RESTORATION BOND A performance bond or cash deposit posted to ensure the availability of sufficient funds to assure that excavation and obstruction work is completed in both a timely and quality manner. RESTORATION COST The cost of restoration. RESTORE OR RESTORATION The process by which a right of way and surrounding area, including pavement and foundation, is returned to the same condition that existed before the commencement of the work under a construction permit. RIGHT OF WAY The area on, below or above a public roadway, highway, streets, alleys, bridges, bikeways, parkways, and sidewalks in which the City has an ownership interest and including such adjacent areas of such right of ways within such ownership interest as made available by the City for ROW use herein,but not including: (a)the airwaves above a public Right-of-Way with regards to cellular or other non-wire telecommunications or broadcast service; (b) easements obtained by utilities or private easements in platted subdivisions or tracts; or (c) poles, pipes, cables, conduits, wires, optical cables, or other means of transmission, collection or exchange of communications, information, substances, data, or electronic or electrical current or impulses utilized by a municipally owned or operated utility pursuant to Chapter 91,RSMo,or pursuant to a charter form of government; or(d)easements obtained by utilities or private easement in platted subdivision or tracts. RIGHT OF WAY INSPECTOR The Administrator and any other person authorized by the Administrator to carry out inspections related to the provisions of this Chapter. RIGHT OF WAY USE AGREEMENT The rights and obligations extended by the City to a person, corporation, association, firms, partnerships or others to erect utility facilities or other structures within the City Right-of-Way for the purpose of providing any form of communications service to any person or area within the City's limits and boundaries subject to the regulations and requirements herein. RIGHT OF WAY USER All persons and entities,whether a PSC registered utility or otherwise owning,controlling,leasing, maintains, using or installing facilities in the right-of-way of the City, not otherwise expressly exempted. A ROW User shall not include Reseller Service Provider, ordinary vehicular or pedestrian traffic, or to the extent permitted by law, any governmental entity that has entered into an inter-local agreement with the City regarding the use and occupancy of the City's right-of-way. SERVICE A commodity provided to a person by means of a delivery system that is comprised of the facilities located or to be located in the Right-of-Way, including, but not limited to gas, telephone, cable television, internet services, open video systems, alarm systems, steam, electric, water, telegraph, data transmission,petroleum pipelines, or sanitary sewerage. STATE The State of Missouri. SUPPLEMENTARY APPLICATION An application made to excavate or obstruct or install within or use more of the right of way than allowed in, or to extend a right-of-way permit that had already been issued. SURPLUSSPACE That portion of the usable space on a utility pole which has the necessary clearances from other pole users, as required by all applicable orders and regulations to allow its use by a communications carrier for a pole attachment. UNDERGROUND FACILITIES Utility facilities and facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities. UTILITY Any corporations, companies as associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees, and receivers; which provide communications, electric, natural gas, or other such services to their customers. For purposes of this chapter, this term does not include the City except as maybe required by law. UTILITY EASEMENT Any easement owned by the City and acquired,established,dedicated or devoted for public utility purposes UTILITY FACILITIES The plant,equipment and property, including but not limited to the poles,pipes, mains, conduits, ducts,cables, wires,plant, equipment or any other related structure located under, on, or above the surface of the ground within the right-of-way of the City and used or to be used for the purpose of providing utility services; provided this term shall not authorize antennas,towers, or other structures or equipment for wireless communications unless having been expressly consented to by the City in writing pursuant to supplemental requirements and regulation of the City. WORK Excavation and/or the construction, installation, repair, or maintenance of any type of facility within the Right-of-Way. SECTION 4. That Section 250.040 of the Code of the City is hereby amended to read as follows: Section 250.040 Excavation Permit. Any person who desires to excavate,obstruct,install or work within any right of way in connection with facilities shall first obtain an excavation permit from the City pursuant to Article III of this Chapter. SECTION 5. That Section 250.050 of the Code of the City is hereby amended to read as follows: Section 250.050 Right of Way Use Agreement. Any person who desires to use, operate,maintain or otherwise locate facilities within any right of way shall first obtain from the City a Right of Way Use Agreement regarding the use of the right of way pursuant to Section 150.150 of this Chapter. SECTION 6.That Section 250.065 is hereby added to the Code of the City to read as follows: Section 250.065 Applicability; Exceptions. Unless otherwise provided in a license, franchise, or Right-of-Way use agreement, or where limited by applicable law, any person that utilizes the City's Right-of-Way is subject to the requirements of this chapter. No Person shall commence or continue with the operation of any facilities or structures in the ROW except as provided and in compliance with this chapter. Because numerous types of users and uses of the ROW may be subject to various or changing regulatory schemes under federal or state law, any such limitation or qualification that may be applicable to less than all users and uses of the ROW are not duplicated herein,but are nevertheless incorporated herein, whenever application is so required by law, including but not limited to applicable provisions of Chapter 67 RSMo. and other applicable state and federal law. The requirements of this chapter shall be in addition to any obligation contained in any license, franchise, or Right-of-Way use agreement except in those instances where the provisions of this chapter and a license, franchise, or Right-of-Way use agreement which existed on the date of adoption hereof and specifically inconsistent with like provisions of occupancy or construction and excavation within the City's Right-of-Way until: (1) The expiration of said franchise or Right-of-Way use agreement; or (2) An agreement to an unexpired franchise or Right-of-Way use agreement is added; or (3) Both parties agree to defer full compliance to a specific date not later than the present expiration date of the preexisting agreement. Exceptions.Unless otherwise provided in a license,franchise or right-of-way use agreement,every person is subject to the applicable requirements of this chapter.Provided however that no provision of this chapter shall apply to any circumstance in which such application shall be unlawful under superseding federal or state law and furthermore, if any section, subsection, sentence, clause, phrase,or portion of this chapter is now or in the future superseded or preempted by state or federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and applied as required by law. SECTION 7. That Section 250.100 of the Code of the City is hereby amended to read as follows: Section 250.100 Reservation of Regulatory and Police Powers. The City by executing a right of way use agreement or by registering or licensing a person under this Chapter does not surrender or to any extent lose, waive, impair or lessen the lawful powers and rights, which it has now or may be hereafter granted to the City under the Constitution and Statutes of the State, to regulate the use of the use of the right of way; and each ROW User, registrant and licensee by its acceptance of a right-of-way permit or license or by registering under this Chapter agrees that all lawful powers and rights, regulatory power, or Police power, or otherwise as are or the same may be from time to time vested in or reserved to the City, shall be in full force and effect and subject to the exercise thereof by the City at any time.Each ROW User, registrant and licensee is deemed to acknowledge that is rights are subject to the regulatory and Police powers of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public. SECTION 8.That Section 250.120 of the Code of the City is hereby amended to read as follows: Section 250.120 Compliance with Other Laws. Obtaining a construction permit or franchise, license, or Right of Way Use Agreement does not relieve the parry of its duty to obtain necessary permits, licenses, and authority to pay all fees required by any other City, County, State, or Federal rules, laws or regulations. All persons shall comply with all requirements of local, State and Federal laws and shall perform all work in conformance with all applicable Codes and established rules and regulations and are responsible for all work done,regardless of who does the work. SECTION 9. That Section 250.150 of the Code of the City is hereby amended to read as follows: Section 250.150 Agreement,License, or Franchise required; requirements. A. Agreement, license, or franchise required. Except where otherwise authorized or required by applicable law,no person may construct, maintain, own, control, or use utility facilities or structures in the right-of-way without a franchise, license, or right-of-way use agreement with the City as provided herein. 1. Franchise. A franchise shall be obtained in conformance with all applicable franchise procedures for any person or utility seeking to use the Right-of-Way for purposes of providing service of distribution of electricity, gas,water, steam, lighting,or sewer public utility service in the City. 2. Right-of-way use agreement. A right-of-way use agreement shall be required for all other persons desiring to use the right-of-way, except as provided herein or otherwise required by law. Such agreement shall conform to all applicable laws and requirements including as provided in this chapter for ROW user providing communication services, if applicable,but shall not be subject to procedures applicable to franchises. 3. License. Persons desiring to install an incidental use,which includes installation of temporary structures or non-wireless utility facilities within the Right-of-Way and installation of permanent incidental uses such as mailboxes, driveway aprons, ingress or egress facilities, and similar incidental uses that utilize a small area of the Right-of-Way and serves the principal structure, on, in, or above the Right-of-Way may be permitted without a franchise or Right-of-Way agreement pursuant to a license issued by the the Administrator. The the Administrator may establish such application, requirements and conditions, applicable to such uses consistent with the purposes of this chapter or as otherwise established by law. Any Person granted a License hereunder shall be subject to the applicable requirements of this Chapter. B. Franchises, licenses, and agreements non-exclusive-approval. The authority granted by the City in any agreement, license,or franchise shall be for non-exclusive use of the Right-of-Way. The City specifically reserves the right to grant,at any time, such additional agreements or other rights to use the Right-of-Way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable laws. The granting of any agreement, license, or franchise shall not be deemed to create any property interest of any kind in favor of the ROW user. All franchises and agreements shall be approved by ordinance of the Board of Aldermen on a non-discriminatory basis provided that the applicant is in compliance with all applicable requirements. Licenses may be approved by the the Administrator on a non-discriminatory basis provided that the applicant is in compliance with all applicable requirements. Such franchises, licenses, and agreements shall be deemed to incorporate the terms of this chapter and other applicable laws of the City, except as may be expressly stated in such agreements, licenses, and franchises. The City may require compensation for use of the Right-of-Way or other public property as may be reasonably required by the Board of Aldermen, subject to applicable law. C. Condition precedent to permit. Unless prohibited by applicable law,no permit for excavation may be issued unless or until such applicant has a valid franchise, license, or Right-of-Way use agreement with the City. D. No warranty. The City makes no express or implied representation or warranty regarding its rights to authorize the installation or construction of facilities on any particular segment of Right- of-Way and shall not be liable for any damage therefrom. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon the ROW user. The ROW user shall be solely liable for any damages to facilities or other property due to excavation, or other ROW work performed prior to obtaining the location of all facilities that have been properly identified prior to such work. The ROW user shall not make or attempt to make repairs, relocation, or replacement of damaged or disturbed facilities without the approval of the owner of the facilities. E. Use of City or Third-Party Facilities. No ROW use agreement, franchise, or license shall grant the right to use facilities owned or controlled by the City or a third party, and no such use shall occur, without the express written consent of such party (on file with the City and subject to other applicable requirements), nor shall any franchise, row agreement, or license excuse such person from first obtaining a pole attachment agreement or other express consent for such right or use before locating on the facilities controlled or owned by the City or a third party. F. Duty of reseller providers to provide notice of operations within City. Prior to providing service within the City or acquiring or using excess capacity through facilities in the City,reseller service providers shall provide written notice to the City of the intent to do so and register with the City as provided herein. It shall be unlawful for any reseller service provider not having its own agreement or franchise to transmit communications for commercial purposes through any facility owned by a person without a valid agreement or other City authorization for such facilities. Any reseller service provider that buys or leases excess capacity or other services for resale from a ROW user, shall be subject to the terms and conditions of this chapter, including the requirement to first register with the City and obtain any necessary permit, license, certification, grant,registration, franchise agreement,or any other authorization required by any appropriate governmental entity, including, but not limited to,the City, PSC or the FCC. If a person through such lease or purchase owns facilities in the Right-of-Way or has the right to physically access or maintain any facilities in the Right-of-Way,then such person no longer meets the definition of a reseller service provider and is required to first obtain a franchise, license, or Right-of-Way use agreement as required herein G. 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. H. Forfeiture of Agreement and Privilege. In case of failure on the part of the ROW user, including its successors and assigns to comply with any of the provisions of this chapter or a ROW use agreement, franchise, license or other authorization, or if the ROW user, its successors and assigns should do or cause to be done any act or thing prohibited by or in violation of this chapter or the terms of the authorization of such use, or otherwise loses authority to provide its service in the City,the ROW user, its successors and assigns shall forfeit all rights and privileges permitted by this chapter and any ROW use agreement, franchise, license or other authorization, and all rights hereunder shall cease,terminate and become null and void, provided that said forfeiture shall not take effect until the City shall carry out the following proceedings: Before the City declares the forfeiture or revocation of a Right-of-Way use agreement, franchise, license or other authorization, it shall first serve a written notice upon the person setting forth in detail the neglect or failure complained of, and the person shall have thirty (30) days thereafter, or such other reasonable period established by the Governing Body, in which to cure the default by complying with the conditions of the row use agreement, franchise, license or other authorization or requirement and fully remedying any default or violation. If at the end of such period the City determines that the conditions have not been complied with and that the person did not reasonably and in the public interest require more than thirty (30) days to cure the default,the City shall take action by an affirmative vote of the Board of Aldermen present at the meeting and voting to terminate the row use agreement, franchise, license or other authorization, setting out the grounds upon which said agreement or other authorization is to be forfeited or revoked. Nothing herein shall prevent the City from invoking any other remedy or from declaring immediate forfeiture where the default is incapable of being cured by the ROW user, including where such defaults or violations have repeatedly occurred. SECTION 10. That Section 250.155 is hereby added to the Code of the City to read as follows: Section 250.155 Application Process. All persons seeking to obtain a franchise, license or agreement must submit an application for said franchise, license,or agreement. 1. Application. An application for a franchise or rights-of-way use agreement shall be presented to the the Administrator in writing on the form provided by the city and shall include all such information as is required by this section and on the application form. All ROW users occupants shall be responsible for accurately maintaining the information in the application during the term of any franchise or rights-of-way use agreement and shall be responsible for all cost incurred by the city due to the failure to provide or maintain as accurate any application information required herein. 2. Application form. All applicants shall submit a completed application for a franchise, or rights-of-way use agreement on such form provided by the city, which shall include information necessary to determine compliance with this chapter including, but not limited to: a. Identity and legal status of the proposed rights-of-way user. b. Name,address, telephone number, fax number, and e-mail address of each officer, agent or employee responsible for the accuracy of the application. Each officer, agent or employee shall be familiar with the local facilities of the proposed ROW user, shall be the person(s)to whom notices shall be sent, and shall be responsible for facilitating all necessary communications including, but not limited to, certification to the city of any material changes to the information provided in such completed application during the term of any franchise or agreement. c. Name, address,telephone number, fax number, and e-mail address of the local representative of the proposed ROW user rights-of-way occupant who shall be available at all time to act on behalf of the ROW user rights-of-way occupant in the event of an emergency. d. Proof of any necessary permit, license, certification, grant, registration, franchise agreement of any other authorization required by any appropriate government entity including, but not limited to, the FCC of or the Missouri Public Service Commission. e. Description of the proposed ROW user's intended use of the right-of-way, including such information as to proposed services so as to determine the applicable, Federal, State, and local regulatory provisions as may apply to such ROW user. f. A list of authorized agents, contractors, and subcontractors eligible to obtain permits on behalf of the proposed ROW user. An application may be updated to add such person at the time of permit application if the updated application is submitted by an authorized representative of the ROW user. g. Information sufficient to determine the amount of net assets of the proposed ROW user. h. Information sufficient to determine whether the proposed ROW user rights-of- way occupant is subject under applicable law to franchising, service regulation, payment of compensation for use of the rights-of-way,taxation, or other requirements of the city. i. An application deposit fee of two thousand four hundred dollars ($2,400) is required for a rights-of-way use agreement application and an application deposit fee of five thousand four hundred dollars ($5,400) is required for a franchise application. Such deposit fees shall be utilized to offset the city's costs in review and issuance of rights-of-way use agreement or franchise agreement,consistent with applicable law. Any amount not used by the city for its actual lawfully reimbursable costs will be refunded to the application on request after execution of the rights-of-way use agreement or franchise agreement. 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 rights-of- way use agreement or franchise agreement that may reasonably exceed the application deposit amount. j. Any request including one or more antennas shall also include all requirements for installation of antennas and wireless Facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act(§§ 67.5090 et. seq. RSMo.) or other applicable law; and k. Such other information as may be reasonably required by the city to determine requirements and compliance with the applicable regulation. 3. Approval process. After submission by the proposed ROW user rights-of-way occupant of a duly executed and completed application and application deposit fee and an executed franchise or rights-of-way use agreement as may be provided by the the Administrator or as modified by the the Administrator in review of the specific circumstances of the application, all in conformity with the requirements of this chapter and all applicable laws,the the Administrator shall submit such agreement to the Board of Aldermen for approval. Upon determining compliance with this chapter,the Board of Aldermen shall authorize execution of the franchise or rights-of-way use agreement(or modified agreement otherwise acceptable to the city consistent with the purpose of this chapter) and such executed franchise or agreement shall constitute consent to use the rights-of- way in accordance with this chapter and the rights-of-way use agreement;provided that nothing herein shall preclude the rejection or modification of any executed franchise or agreement submitted to the city to the extent such 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 applicant. 4. Standard for approval or renewal of ROW use agreements. In reviewing an application for a new or renewal ROW use agreement,the city may consider prior conduct of the person in performance of its obligations or compliance with the city's ordinances in the past,or the existence of any outstanding violations or deficiencies. The city may deny or condition any ROW use agreement or franchise where the proposed use would interfere with the public use of the rights-of-way or otherwise conflict with the legitimate public interests of the city or as otherwise provided by law. Applications for ROW use agreements or franchises may be approved, denied, or approved with conditions consistent with requirements of applicable law or other applicable requirements as may be necessary to fulfill the requirements and objectives of this chapter. Section 11. That Section 250.160 of the Code of the City is hereby amended to read as follows: Section 250.160 Registrations. A. Any existing ROW user must register within 30 days of the effective date of the ordinance from which this chapter derives. Prior to providing service(including sale or transfer of product or service)within the city or acquiring or using excess capacity through facilities in the city, all reseller service providers much register with the city. Prior to providing service within the city, transmitting communications through facilities in the city, or constructing in the rights-of-way entities not required to obtain a franchise, license, or rights-of-way use agreement due to superseding federal or state law, shall nevertheless be required to register with the city. B. Any person, who is not a ROW user prior to the effective date of the ordinance and who wishes to become a ROW user, must first obtain a franchise, license, or rights-of-way use agreement, or other authorization from the City. C. A ROW user is authorized, subject to other applicable requirements,to sell or transfer use of excess capacity to reseller service providers or other entities, provided that such entity either: (1) has no right to and does not physically access the facilities while in the ROW, or(2)has a separate franchise or ROW use agreement or other written agreement or consent authorizing the same with the city. In the event of such sale or transfer to a reseller service provider, the ROW user shall notify the city of the same prior to such action so that the city can review compliance regarding doing business in the city. This notice shall not relieve the reseller service provider from its own obligation to register,pay taxes,and obtain any necessary authorization from the city. D. The ROW user shall be responsible for all costs incurred by the city due to the failure to provide any information to the city required for registration. E. Any reseller service provider that buys or leases excess capacity or other services for resale from a ROW user, shall be subject to the terms and conditions of this chapter, including the requirement to first register with the city and obtain any necessary permit, license, certification, grant,registration, franchise agreement or any other authorization required by any appropriate governmental entity, including, but not limited to,the city, PSC or the FCC. If a person through such lease or purchase owns facilities in the rights-of-way or has the right to physically access or maintain any facilities in the rights-of-way,then such person no longer meets the definition of a reseller service provider and is required to first obtain a franchise, license, or rights-of-way use agreement as required herein. SECTION 12. That Section 250.185 is hereby added to the Code of the City to read as follows: Section 250.185 Transferability. Except as provided in this Chapter,or as otherwise required by law,no franchise, license, or right-of-way use agreement,permit,or registration may be transferred or assigned without the written application to and consent of the City. Consent to transfer a franchise, license,or right- of-way use agreement, permit or registration shall not be unreasonably withheld by the City, and any costs incurred by the City shall be paid by the ROW user to the extent allowed by law. SECTION 13. That Section 250.190 of the Code of the City is hereby amended to read as follows: Section 250.190 Excavation Permit Requirement. 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. An excavation permit should be obtained for each project unless otherwise provided for in this chapter. A separate special permit or lease shall be required for excavation in or use of any real property interest of the city that is not ROW. SECTION 14. That Section 250.210 of the Code of the City is hereby amended to read as follows: Section 250.210 Permit Applications. The permit application shall be on the form provided by the Administrator and at a minimum shall include the following: 1. Compliance with all necessary registration and authorization requirements of this Chapter. 2. If applicable to the work, attachments and scaled drawings showing the location and area of the proposed project,the location of all existing and proposed facilities at such location,the length, size,type and proposed depth of any conduit or other enclosures, the number and character or each proposed cut or excavation, and the relationship of all facilities to all existing streets. 3. A traffic control plan, if applicable, including a work schedule indicating the extent and duration of such plan. 4. All applicable permit fees as provided in this chapter 5. Payment of all monies due the city for permit fees and costs, for prior excavation costs, for any loss, damage or expense suffered by the city because of the applicant's prior excavations of the rights-of-way or for any emergency actions taken by the city,unless the payment of such money is in dispute and timely appealed as provided hereafter. 6. Any all bonds as provided in this Chapter. 7. Designation of a local person familiar with the facilities that shall act as a local agent for the ROW user and shall be responsible for satisfying any information requirement of this chapter. The application shall contain such person's name, address,telephone number,and email address. Such person shall be the person to whom relocation notices and other such notices shall be sent, and with whom rests the responsibility to facilitate all necessary communications. The ROW user shall be responsible for all costs incurred by the city due to the failure to provide such information to the city. SECTION 15. That Section 250.220 of the Code of the City is hereby amended to read as follows: Section 250.220 Issuance of Permit—Conditions 1. The Administrator may impose reasonable conditions upon the issuance of a permit and the performance of the permittee 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 the other users of the rights-of-way, and to minimize the disruption and inconvenience to the traveling public. Conditions may include the requirement that an outside consultant be hired with the consultant's compensation to be paid for by the applicant. 2. When an excavation permit is requested for purposes of installing additional facilities and the performance and maintenance bond for additional facilities is reasonably determined to be insufficient, the posting of an additional or larger performance and maintenance bond for the additional facilities may be required. 3. A permittee shall perform all work in full accord with any and all applicable engineering codes adopted or approved by the parties and in accordance with applicable statutes of the state, and the rules and regulations of the commission or any other local, state or federal agency having jurisdiction'over the parties. A permittee shall perform all work in conformance with all applicable codes and established rules and regulations and shall be responsible for all work in the rights-of-way pursuant to its permit, regardless by whom the work is done by. Every permit issued shall be deemed to incorporate the requirements and terms of this chapter, and all applicable ordinances, to the extent permitted by law 4. Except in cases of an emergency or with the approval of the Administrator,no rights-of-way work may be done when conditions are unreasonable for such work. 5. A permittee shall not disrupt the right-of-way such that the natural free and clear passage of water through the gutters or other waterways is interfered with. Private vehicles may not be parked within or next to the permit area. 6. If work is being done for the ROW user by another person, subcontractor or otherwise,the person doing the work and ROW user shall be liable and responsibility for all damages, obligations,and warranties herein described, including ensuring that the excavation by said person is performed consistent with its permit and applicable law(including that the contract shall be properly licensed under the State of Missouri and local ordinances)and shall be responsibility for promptly correcting acts by said person. 7. The permittee shall not at any one time excavate or encumber more of the rights-of-way than shall be reasonably necessary to enable the permittee to complete the project in the most expeditious manner. 8. The permittee shall, in the performance of any work required for the installation,repair, maintenance, relocation and/or removal of any of its facilities, limit all excavations to those that are necessary for efficient operation. 9. The permittee shall not permit such an excavation to remain open longer than is necessary to complete the repair or installation. 10.Non-emergency work on arterial and collector streets may not be performed between the hours of 7:00 a.m. to 8:30 a.m. and 4:00 p.m. to 6:00 p.m., in order to minimize disruption of traffic flow. The permittee shall perform work 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. At no time shall traffic be restricted to less than two lanes on arterial streets. 11. 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. 12. 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. 13. Upon completion of the ROW work involving installation of new facilities,the ROW user shall supply the city copies of as-built and detailed maps showing the exact location of facilities installed in the ROW. 14. The Administrator may limit 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 (1)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. 15. The Administrator may impose other reasonable conditions regarding the timing, safety precautions, space, or specific implementation of the specific work proposed. SECTION 16. That Section 250.240 of the Code of the City is hereby amended to read as follows: Section 250.240 Supplementary Applications. A. An excavation permit is valid only for the area of the right of way specified in the permit.No permittee may do any work outside the area specified in the permit, except as provided herein. Any permittee which determines that an area greater than that specified in the permit must be obstructed or excavated or installed within or is otherwise necessary must before working in the greater area: 1. Make application for a permit extension and pay any additional fees required thereby; and 2. Be granted a new permit or permit extension. B. An excavation permit is valid only for the dates specified in the permit. No construction permittee may begin its work before the permit start date or, except as provided herein, continue working after the end date. If a construction permittee does not finish the work by the permit end date, it must apply for a new permit for the additional time it needs and receive the new permit or an extension of the old permit before working after the end date of the previous permit. This supplementary application must be done before the permit end date. SECTION 17. That Section 250.250 of the Code of the City is hereby amended to read as follows: Section 250.250 Denial of Permit. A. The administrator has discretion to deny a permit to protect the public health, safety,and welfare,to prevent interference with the safety and convenience or ordinary travel over the rights-of-way, or when necessary to protect the rights-of-way and its users. In exercising this discretion,the the Administrator shall be guided by the safety and convenience of anticipated travel of the public over the rights-of-way and the public benefits offered by the ROW user and may consider one or more of the following factors in denial of the permit: 1. The applicant fails to provide all necessary information requested by the city for managing the public right-of-way; 2. The applicant has failed to return the right-of-way to its previous condition under a previous permit; 3. The Administrator has provided the applicant with a reasonable, competitively neutral and nondiscriminatory justification for requiring an alternative method for performing the work identified in the permit application or a reasonable alternative route that will result in neither additional installation expense up to ten(10)percent to the applicant nor a declination of service quality; 4. The Administrator determines that denial is necessary to protect the public health and safety,provided that such does not extend to those items under the jurisdiction of the Missouri Public Service Commission, such denial shall not interfere with a public utility's right of eminent domain of private property, and such denials shall only be imposed on a competitively neutral and nondiscriminatory basis; 5. The area is environmentally sensitive as defined by state statute or federal law or is historic district as defined by city ordinance; 6. Such other lawful reasons. SECTION 18. That Section 250.280 of the Code of the City is hereby amended to read as follows: Section 250.280 Revocation of Permits. A. Permittees hold rights-of-way permits issued pursuant to this chapter as a privilege and not as a rights. The city reserves its rights, as provided herein,to revoke any rights-of-way permits, without refund of the permit fee, in accordance with this chapter or in the event of a substantial breach of the terms and conditions of any law or the rights-of-way permit. A substantial breach shall include,but not limited to the following: 1. The violation of any material 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. Any material misrepresentation of any fact in the permit application; 4. The failure to complete the 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 permittee's control; 5. The 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 that are no more stringent than national safety codes, upon inspection and notification by the city of the faulty condition; 6. Such other lawful reasons. B. If a rights-of-way permit is revoked,the permittee shall also reimburse the city for the city's reasonable costs, including administrative costs, restoration costs, and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation. SECTION 19. That Sections 250.500, 250.510, and 250.520 of the Code of the City are hereby deleted in their entirety. SECTION 20. That Section 250.530 of the Code of the City is hereby amended to read as follows: Section 250.530 Excavation Permit Fees. A. The excavation permit fee shall be recommended by the Administrator, approved by the Board, and set out in the schedule of fees and charges in the City Clerk's Office. B. The Administrator is to establish separate fee structures for minor and major projects,and for major project, shall include standards for recovery of actual, substantiated costs based on additional staff involvement required by the size and complexity of such projects C. The excavation permit fee shall include an administrative fee and inspection fee but shall not include attorney's fees or any fee prohibited by applicable law. D. Fees paid for the excavation permit,which is subsequently revoked by the Administrator are not refundable. E. In the event the scope of the project is revised during the course of the work,the Administrator may recalculate the fee based on a change in the scope of work, and may require an additional administrative fee. F. 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 right-of-way that are not otherwise accounted for as part of the permit fee established pursuant to this chapter,to the extent permitted by law. all such costs shall be itemized and the City's books and records related to these costs shall be made available upon request of the row user. SECTION 21. That Section 250.540 of the Code of the City is hereby amended to read as follows: Section 250.540 Linear Foot Fees. A. Fees. Unless otherwise provided,each ROW User shall pay to the City as monthly compensation for the use of the right of way a linear foot fee equal to one thousand ($1,000.00)for the first(1st)mile of linear facilities, or part thereof,plus sixteen cents ($0.16)per linear foot thereafter plus one hundred dollars ($100.00) for each antenna in the right of way up to a maximum charge under this section of five thousand dollars ($5,000.00). Provided that ROW user shall be entitled to a credit against the linear foot fee hereunder equal to the payments(s) made to and received by the City from such ROW user for the same period for the gross receipts tax on ROW user's communications services; provided, however, such credit cannot exceed the amount due under this Subsection and may not be carried forward or back to any other time period. B. Timing Of Payment Of User Fees. Unless otherwise agreed to in writing, all linear foot fees shall be due and payable on a monthly basis within sixty (60) calendar days of the close of each month for which the payment applies (the "due date"). C. Interest Of Late Payments And Under Payments. If any linear foot fee, or any portion thereof, is not postmarked or delivered on or before the due date, interest thereon shall accrue from the due date until received, at the rate of one and one half percent (1.5%) per month or at such other maximum rate as may be allowable by Missouri law. D. Fee Statement. Each linear foot fee payment shall be accompanied by a statement showing the manner in which the linear foot fee was calculated. If any fee statement is determined to understate the fee owed, then such additional amount owed shall be made with a corrected statement, including interest on said amount as provided herein. Within ninety(90)calendar days following the end of the calendar year, each ROW User shall submit a statement, certified as true, setting forth its gross revenues,the amount of linear foot and antennae within the facilities, and describing what revenues or receipts were included and excluded in the fee calculations for the calendar year, and describing any adjustments made in determining the user fee. E. No Accord And Satisfaction. No acceptance by the City of any fee or any other payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any user fee or any other payment be construed as a release of any claim of the City. F. Maintain Records. ROW User shall at all times maintain complete and accurate books of account and records of the business, ownership, and operations of the ROW User with respect to the facilities in a manner that allows the City to determine whether the ROW User has properly calculated its fee in compliance with this Chapter. Should the City reasonably determine that the records are not being maintained in such manner, the ROW User shall correct the manner in which the books and/or records are maintained so that the ROW User comes into compliance with this Section. All financial books and records which are maintained in accordance with FCC regulations and the regulations of any governmental entity that regulates utilities in Missouri, and generally accepted accounting principles shall be deemed to be acceptable under this Section. Such books and records shall be maintained for a period of at least three(3) years. G. Right Of Inspection. The City or its designated representatives shall have the right to inspect, examine or audit, during normal business hours and upon reasonable notice, all documents, records or other information that pertains to the facilities within right of ways and/or ROW User's user fee obligations. In addition to access to the records of ROW User for audits,upon request, ROW User shall provide reasonable access to records necessary to verify compliance with the terms of this Chapter. SECTION 22. That Section 250.570 of the Code of the City is hereby amended to read as follows: Section 250.570 Location of Facilities. A. The ROW-user's use of the rights-of-way shall in all matters be subordinate to the city's use or occupation of the rights-of-way. Without limitations of its rights, the city expressly reserves the rights to exercise its governmental powers now and hereafter vested in or granted to the city. In situations where multiple users are within the same location, first the municipal use shall have priority followed by Persons with a valid and current Rights-of- Way Use Agreement, Franchise, or other authorization with the City, followed by all others. All ROW users shall construct and maintain their facilities so as not to interfere with other users of the rights-of-way. B. The ROW-users shall coordinate the placement of facilities in a manner that minimizes adverse impact on any public improvement, as reasonably determined by the city. Where placement is not regulated, the facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvements as defined in the city's Design and Construction Manual. The design, location, and nature of all facilities shall be subject to the review and approval of the the Administrator. 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 ROW shall also be applicable to all facilities. For applications for towers or other structures or equipment for wireless communications, the most restrictive adjacent underlying zoning district classification shall apply unless otherwise zoned and designated on the official zoning map. C. No equipment or facilities that exceed 30 inches in height above ground level, except utility poles, shall be placed within the sight distance areas of intersections as determined under the city's sight distance standards and the most current edition of the Manual of the American Association of State Highway and Transportation Officials. Appropriate sight distances for such equipment or facilities related to driveways, alleys, or other entrances onto streets other than at intersections, shall be determined on a case-by-case basis by the the Administrator, in order to provide reasonably safe locations for such equipment or facilities. D. The ROW-user shall consider any request made by the city concerning placement facilities in private easements in order to limit or eliminate future street improvement relocation expenses. E. All facilities shall be located and laid so as not to disrupt, adversely impact, or interfere with any pipes, drains, sewers, irrigation systems, or other structures or public improvements already installed. In addition, the ROW-user shall, in doing work in connection with its facilities, avoid, so far as may be practicable, disrupting or interfering with the lawful use of the streets, alleys, sidewalks, or other public lands of the city. F. All facilities of the ROW-user shall be placed so that they do not interfere with the use of rights-of-way and public lands, either existing or proposed. The city, through its the Administrator, shall have the right to consult and review the location,design, and nature of the facility prior to installation. The City may, in its discretion,designate certain locations or facilities in the rights-of-way to be excluded from use by the ROW user, including but not limited to, ornamental or similar specially-designed street lights or other facilities or locations which, in the reasonable judgment of the the Administrator, do not have electrical service adequate or appropriate for the provider's facilities, or cannot safely bear the weight or wind loading thereof, or any other facility or location that in the reasonable judgment of the the Administrator is incompatible with the proposed facilities, or would be rendered unsafe or unstable by the installation. G. The ROW-user shall not interfere with the facilities of other ROW-users without their permission. If and when the city requires or negotiates to have a ROW-user cease using its existing poles and to relocate its facilities underground, all other ROW-users using the same poles shall also relocate their facilities underground at the same time. The cost of such relocations shall be borne in accordance with this chapter and the applicable tariff governing that ROW-user. H. All facilities and other appurtenances laid, constructed, and maintained by the permittee shall be laid, constructed and maintained in accordance with acceptable engineering practice and in full accord with any and all applicable engineering codes adopted or approved by the parties and in accordance with applicable statutes of the state, as well as the rules and regulations of the commission or any other local, state, or federal agency jurisdiction over the parties. I. The ROW-user shall cooperate promptly and fully with the city and take all reasonable measures necessary to provide accurate and complete on-site information regarding the nature and location of its facilities within the rights-of-way, both underground and overhead, when requested by the city or its authorized agent for a public improvement. Such location and identification shall be at the sole expense of the ROW-user without any expense to the city, its employees, agents or authorized contractors. J. It shall be the responsibility of the ROW-user to take adequate measures to protect and defend its facilities in the rights-of-way from harm and damage. K. Limited Space. The city shall have the power to prohibit or limit the placement or new or additional equipment within the right-of-way if there is insufficient space to accommodate all of the request of potential ROW users. In making such decisions, the city shall strive to the extent possible to accommodate all existing and potential users of the right-of-way, but shall be guided primarily by considerations of the public interest, public health and safety,the public's priority needs for the particular utility service,the condition of the right-of-way, the time of the year with respect to essential utilities,the protection of existing equipment in the right-of-way, and future city plans for public improvements and development projects which have been determined to be in the public interest. L. Use of existing facilities required; exceptions. All new facilities or structures shall collocate on existing poles or within existing conduit, trenches or other facilities to minimize unnecessary use of right-of-way space, reduce potential existing or future interference and obstructions and to reduce the cost to the public or others therefrom, and to maximize the public's ability to use and license appropriate private or public uses of the public rights-of- way in the public interest(except where preempted by law or where good cause is established as determined by the city applying these objectives.) Where existing poles or facilities are available,or exist at or near the proposed use, unless otherwise approved, the applicant must either use such facilities or file a written request verified by the applicant for exception specifying the specific reasons why such facilities are not available or feasible to be used and addressing the objectives hereof. M. ROW users may be required prior to any excavation or installation within the rights-of-way, to provide sufficient notification and joint installation opportunities on a shared cost basis to potential users of the rights-of-way as may be provided for by separate city policy. Such notifications and adopted policies shall be designed to maximize collocation ROW users,to minimize the disturbance of the rights-of-way and to maximize usable capacity. N. Wireless antennas and facilities 1. Pursuant to city authority, including by Section 67.1830(f)RSMo., and to properly manage the limited space in the city's rights-of-way, minimize obstructions and interference with the use of the rights-of-way by the public, and to ensure public safety, preserve property values, and enforce the public policy to maintain neutrality as to ownership of wireless locations, while also seeking to facilitate delivery of broadband technologies to city residents and businesses wireless facilities, shall be permitted in the rights-of-way only in compliance with the requirements applicable to other facilities and users in the rights-of-way, and the additional requirements set forth in this section for wireless antennas and facilities. Any wireless facilities authorized in the ROW shall be only as authorized in a binding approved ROW agreement,pole attachment agreement, or other written authorization with the city and subject to approval, denial, or condition relating to location,design, height, appearance, safety, specifications for use of city structures, and such zoning, building, or other regulations, including specifically chapter 166, except as may be limited by law. 2. General conditions. Any wireless facility in the ROW shall be authorized only for entities that have a current and unexpired lawful ROW agreement, franchise, or other written authorization with the city as required by this chapter and 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 public works the Administrator to address changing infrastructure,technology, and uses of the rights-of- way and/or city facilities. 3. "Fast-Track" small wireless collocation. Small wireless facilities meeting the requirements of a"Fast Track Small Wireless Facility" set forth in the Zoning Code, may be authorized to be located in the rights-of-way with approval of the the Administrator subject to the following additional requirements: a. Only one small wireless facility shall be permitted per structure in the rights-of- way; b. No ground equipment shall be authorized; c. No small wireless facility shall be located in a manner which obstructs or causes a safety concern for vehicle or pedestrian traffic; and d. If the proposed structure the applicant proposes to locate its small wireless facility is not structurally sound, but the the Administrator finds such to be a desired location, the the Administrator can require the applicant to install a new substantially similar structure at its cost. 4. New Structures. Wireless facilities shall not be permitted in the rights-of-way on new structures,provided that if evidence warranting an exception is provided by the applicant pursuant to section 6.115.510,the Board may grant an exception authorizing a new structure for a wireless facility if it also determines on a non-discriminatory basis such proposed application is in the public interest in light of the purposes of this section and chapter,and provided such use and location has received prior, separate zoning authorization as required by and in compliance with chapter 166,to the extent permitted by law. In such circumstances where any small wireless facilities is permitted in the rights-of-way on a new structure, such uses shall be subject to reasonable regulations or conditions and including any applicable specifications, compensation, and other terms established by the city in such approval or agreements as necessary or appropriate to preserve the purposes of this section and chapter. 5. All other wireless in ROW. Any wireless facility located on an existing structure but not meeting the requirements of subsections(2) General conditions or(3)"Fast Track" small wireless collocation above, may be approved, subject to conditions as may be imposed consistent with the purposes of this section, only upon approval by the council upon a determination by the council that such wireless facility is: (1) in the public interest to provide a needed service to persons within the city, (2)cannot feasibly meet all of the requirements but varies from such requirements to the minimum extent necessary, (3) does not negatively impact appearance or property values in light of the location, design, and circumstances to be approved, (4) does not create any reasonable safety risk, and (5) complies with all zoning, ROW, and other applicable requirements. 6. Wireless facility compensation. Compensation shall be as follows unless otherwise lawfully provided for in the agreement authorizing such use a. If a wireless facility is to be located on a city owned structure, a pole attachment agreement or other authorization shall be required with terms including insurance, indemnification, and a monthly payment of$200.00 per attachment or such other compensation as may be lawfully provided for in such agreement; b. Pursuant to its authority under § 67.1830(6)(f)RSMo., and as may be authorized by § 67.5094(11)RSMo.,the ROW user wishing to install wireless facilities within the rights-of-way shall also pay to the city, in addition to the fees herein, a one-time administrative and zoning fee of$500.00 per each wireless antenna installation to partly cover the city's costs and risks of allowing installation of wireless facilities within the rights-of-way. 7. Application Requirements. Any application including one or more wireless antennas or facilities shall include all requirements for(1) installation of any facilities in the ROW as set forth in this chapter, (2)the requirements of this section, and also include (3) requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act(§§ 67.5090 et. seq. RSMo.)or other applicable law including written proof of consent of landowner(copy of the ROW agreement) and of structure owner(document authorizing use of the structure). SECTION 23. That Section 250.600 of the Code of the City is hereby amended to read as follows: Section 250.600 Relocation or Removal of Facilities. A. The ROW user shall promptly remove, relocate or adjust, at its own cost and expense, any facilities located within the rights-of-way as directed by the city for a public improvement or when reasonably required by the city by reason of public safety 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 at the ROW user's sole expense without 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. ROW users shall proceed with relocations at due diligence upon notification by the city to begin relocation. B. The ROW user shall promptly remove, relocate, or adjust any facilities located in private easement subject to the following: 1. The relocation is required as provided herein; 2. The City has condemned, or the ROW user has disclaimed to the City the portion of the private easement necessary for the public improvement; 3. The ROW user shall relocate the facilities into the expanded rights-of-way at the city's direction or into any remaining portion of the private easement not condemned by or disclaimed to the city; and C. As soon as working drawings are available for public improvements that will require the ROW user to relocate its facilities,the city shall provide the ROW user with written notice of relocations and the anticipated bid letting date of said improvement. The ROW user shall respond with any conflicts and a proposed construction schedule within 30 days. D. Following notice by the city in the form of the delivery of final design plans for such public improvements, the ROW user shall remove, adjust, or and relocate its facilities in accordance with the mutually agreed upon schedule,provided the project is not delayed by adverse weather conditions and other factors beyond the control of the ROW user. ROW user shall certify to the city, in writing,that its facilities have been relocated or adjusted to clear construction in accordance with project plans provided by the city. E. Any damages suffered by the city, its agents or its contractors to the extent caused by the ROW user's failure to timely relocate or adjust such facilities,based on the above agreed to schedule, shall be borne by the ROW user. Damages may include but be limited to: 1. Delays to contractor causing increased labor costs or reduced productivity. 2. Delays to contractor causing demobilization and remobilization. 3. Delays to city causing increased inspection time. 4. Delays to residents or motorists causing increased travel costs, inconvenience,or damages. F. In the event the ROW user is required to move its facilities in accordance with this section, a rights-of-way permit will be required however the permit fee shall be waived. G. It is the intent of this section for both the city and the ROW user to cooperate with one another so that the need for facility relocation is minimized and, when required and feasible, relocations may be completed prior to receipts of bids by the city for such public improvement. H. The ROW user shall upon request of any other person requesting relocation of facilities and holding a validly issued building or moving permit of the city, and within a reasonable period of time prior to the date upon which said Person intends to exercise its rights under said permit, thereupon temporarily raise, lower or relocate its wires or other facilities as may be required for the person to exercise the rights under the permit, and the ROW user may require such person to make payment in advance for any expenses incurred by said ROW user pursuant to said person's request. SECTION 24. That Section 250.620 of the Code of the City is hereby amended to read as follows: Section 250.620 Unused and abandoned facilities. A. A ROW user owning abandoned facilities in the right of way must either: 1. Remove its facilities and replace or restore any damage or disturbance caused by the removal at its own expense. The the Administrator may allow underground facilities or portions thereof remain in place if the the Administrator determines that it is in the best interest of public safety to do so. At such time,the city may take ownership and responsibility of such abandoned facilities left in place; or 2. Provide information satisfactory to the city that the ROW user's obligations for its facilities in the rights-of-way have been lawfully assumed by another authorized ROW user; or 3. Submit to the city a proposal and instruments for transferring ownership of its facilities to the city. If the ROW user proceeds under this sub-section,the city may,at its option purchase the equipment, require the ROW user, at its own expense,to remove it, or require the ROW user to post a bond in an amount sufficient to reimburse the city for reasonable anticipated costs to be incurred to remove the facilities. B. Facilities of a ROW user who fails to comply with this section, and whose facilities remain unused for two years, shall be deemed to be abandoned after the city has made a good faith effort to contact the ROW user, unless the city receives confirmation that the ROW user intends to use the facilities. Abandoned facilities are deemed to be a nuisance. The city may exercise any remedies or rights it has at law or in equity, including but not limited to, (a) abating the nuisance, (b)taking possession and ownership of the facility and restoring it to a useable function, or(c) requiring the removal of the facility by the ROW user. SECTION 25. That Section 250.670 of the Code of the City is hereby amended to read as follows: Section 250.670 Insurance. Before a permit as herein provided is issued,the applicant shall furnish to the city a certificate of insurance in a company approved by the enforcement agency or the city, evidencing that such applicant has a comprehensive general liability and property damage insurance that includes contractual liability coverage with minimum limits in no event less than the maximum amounts of liability set forth in Section 537.610 RSMo applicable to political subdivisions. The policies of insurance shall be in such form and shall be issued by such company or companies as may be satisfactory to the city. The city, and such additional persons and entities as may be deemed to have exposure to liability as a result of the performance of the excavation work, as determined by the city, shall be named as additional insured with full and equivalent coverage as the insured and with the duty of defense on all insurance policies required hereunder. A certificate of insurance providing compliance with this section shall be submitted to the city and shall include a provision that the insurance coverage cannot be cancelled or not renewed without thirty (3) days advance written notice to the city. If the person is self-insured, it shall provide the city proof of compliance regarding its ability to self-insure and proof of its ability to provide coverage in the above amounts. Any self-insurance or deductible above fifty thousand dollars($50,000.00) must be declared to and pre-approved by the city. The insurance requirements in this section or otherwise shall not apply to any entity to the extent and for such period during an agreement, franchise or permit issued hereunder if such entity is exempted from such requirements pursuant to Section 67.1830(6)(a) and has on file with the city clerk an affidavit certifying that the entity has twenty-five million dollars($25,000,000.00) in net assets and is otherwise therefore so exempted unless otherwise provided by agreement or franchise. The city reserves the right to waive any and all requirements under this section when deemed to be in the public interest. Nothing herein shall be deemed to waive the City's sovereign immunity SECTION 26. That Section 250.690 of the Code of the City is hereby amended to read as follows: Section 250.690 Bonding. The permittee shall at all times during the term of the permit,and for four years thereafter, maintain a performance and maintenance bond in a form approved by the city counselor. The amount of the bond will be $5,000.00 or the value of the restoration,whichever is the greater, for a term consistent with the term of the permit plus four additional years, conditioned upon the permittee's faithful performance of the provisions,terms and conditions conferred by this chapter. An annual bond in the amount of$50,000.00 automatically renewed yearly during the period shall satisfy the requirements of this section. In the event the city shall exercise its rights to revoke the permit as granted herein, then the city shall be entitled to recover under the terms of said bond,the full amount of any loss occasioned. Permittee submitting bonds shall comply with the following requirements: 1. A copy of the maintenance and performance bond must be on file with the city clerk. 2. No maintenance or performance bond will be required of any governmental entity. Or of any residential property owner working in the rights-of-way adjacent to his/her residence,who does not utilize a contractor to perform the excavation. The bond requirement herein shall not apply to an applicant who has on file with the city clerk an affidavit certifying that the applicant has twenty-five million dollars ($25,000,000.00)in net assets and does not have a history of permitting noncompliance within the city. SECTION 27. That Section 250.870 of the Code of the City is hereby amended to read as follows: Section 250.870 Right of Way Repair and Restoration—Failure to Restore—Guarantee of Restoration. A. Right of Way Repair and Restoration. 1. After any excavation,the permittee shall, at its expense, and in a timely manner as set forth in the permit obtained by the permittee, restore all portions of the rights-of-way to the same condition or better condition than it was prior to the excavation thereof. This shall include the sodding, or seeding, of all established lawn areas as directed by the permit with the same species of grass as that disturbed by the excavation. 2. The permittee shall employ a testing laboratory, as approved by the Administrator, which shall verify the proper backfilling on any street cut. The permittee shall pay all costs associated with such testing. This provision shall be waived when flowable fill is used as backfill or with the permission of the Administrator. 3. If an excavation cannot be backfilled immediately and must be left unattended,the permittee shall securely and adequately cover any street cuts, or protect any unfilled grassed area excavation. The permittee has sole responsibility for maintaining proper barricades, safety fencing and/or lights as required, from the time of the opening of the excavation until the excavation is surfaced and open for travel. 4. In addition to repairing its own street cuts,the permittee must restore any area within five feet of the new street cut that has previously been excavated, including the paving and its aggregate foundations. 5. All earth,materials, sidewalks, paving, crossings, utilities, public improvement, or improvements of any kind damaged or removed by the permittee shall be fully repaired or replaced promptly by the permittee at its sole expense and to the reasonable satisfaction of the city. However, a permittee shall not make or attempt to make repairs, relocations,or replacement of damaged or disturbed facilities without the approval of the owner of the facilities. The permittee shall notify the the Administrator upon completion ffo the excavation work authorized by the permit. The the Administrator has the authority to inspect the repair or replacement of the damage, and if necessary,to require the permittee to do the additional necessary work.Notice of the unsatisfactory restoration and the deficiencies found will be provided to the permittee and a reasonable time not to exceed ten calendar days will be provided to allow for the deficiencies to be corrected. Upon determination by the the Administrator that such repair or replacement is a public safety matter, all such repair or replacement shall be corrected within 24 hours notice from the city, or the the Administrator may direct the city to make such repair or replacement and bill the ROW user for the city's costs. B. Failure to Restore. If the permittee fails to restore the rights-of-way in the manner and to the condition required by the the Administrator, or fails to satisfactorily and timely complete all restoration the city may, at its option, serve written notice upon the permittee and its surety that, unless within five days after serving of such notice, a satisfactory arrangement can be made for the proper restoration of the rights-of-way, the city shall immediately serve notice of failure to comply upon the surety and the permittee, and the surety shall have the rights to take over and complete the work;provided, however, that if the surety does not commence performance within ten days from the date of notice,the city may take over the work and prosecute same to completion, by contract or otherwise at the expense of the permittee, and the permittee and its surety shall be liable to the city for any and all excess cost assumed by the city by reason of such prosecution and completion. C. Guarantee of Restoration. 1. In restoring the rights-of-way,the permittee guarantees its work and shall maintain it for four years following its completion. During the four years the permittee shall, upon notification from the the Administrator, correct all restoration work to the extent necessary,using any method as required by the the Administrator. Said work shall be completed within a reasonable time, not to exceed 15 calendar days, of the receipt of notice from the the Administrator. In the event the permittee is required to perform new restoration pursuant to the foregoing guarantee, the the Administrator shall have the authority to extend the guarantee period for such new restoration for up to an additional four years from the date of the new restoration, if the the Administrator determines any overt action by the permittee not to comply with the conditions of the rights-of-way permit and any restoration requirements. 2. When any corrective action has been completed and inspected by the the Administrator' satisfaction,the four-year maintenance period will begin. 3. The four-year guarantee period shall be applicable to failure of the pavement surface as well as failure below the pavement surface. Settlement of the excavation or cracking, breaking or rutting of the surface shall be prima facie evidence of failure of the backfill. SECTION 28. That Section 250.900 of the Code of the City is hereby amended to read as follows: Section 250.900 Aboveground and Underground Facilities. 1. Aboveground Facilities a. All new facilities may be located above-ground only if approved by the Board for good cause. Unless extraordinary circumstances exist, good cause shall not include authorization for above-ground facilities requiring new poles or major modification to existing above-ground structures. above-ground pedestals, vaults, cabinets, or other facilities may be installed only if approved by the city where alternative underground facilities are not feasible or where underground requirements are otherwise waived pursuant to the provisions of this subsection. existing conduit shall be used where feasible and available. where reasonable and appropriate and where adequate rights- of-way exists,the row user shall place above-ground facilities underground in conjunction with city capital improvement projects and/or at specific locations requested by the city provided that such placement is practical, efficient, and economically feasible. This prohibition shall not include replacement poles that are of similar dimension of the existing pole. b. No equipment, equipment boxes, or other facilities(including transformer boxes, telephone risers,junction boxes, equipment boxes), shall be placed in the rights-of- way that exceed 66 inches in height above ground level, or 20 square feet in surface. Such equipment and facilities are to be located only within the width of utility easements that exist along side property lines between adjacent properties, and subject to any sight line restrictions contained in this chapter or the city code in general. The city reserves the right to modify proposed locations of such equipment and facilities if the location identified by the applicant is deemed to create a safety hazard or to adversely affect the property value of the premises where the equipment or facilities are to be located. c. If more than one equipment box or other facility is to be erected under any one application for a city construction permit, all equipment locations for such a project shall be clearly identified in drawings accompanying the application, and the impact of the entire system on the safety or property values in the areas affected shall be evaluated by the city, and the city shall have the right to impose alternative locations for such equipment prior to issuing a construction permit. 2. Underground Facilities. All facilities shall be located underground whenever possible as provided herein. The ROW user shall comply with all city requirements as well as any utility commission regulations its must adhere to.. If this requirement is waived as provided herein, the facility shall be located as determined by the the Administrator, including but not limited to any requirements placed on the ROW user by the commission. Specific locations where facilities will be required to be underground may be identified in the city's technical specifications and standard drawings. SECTION 29. That Section 250.190 of the Code of the City is hereby amended to read as follows: Section 250.190 Responsibility of Owner Excavation permittees, the owner(s) of the facilities to be constructed and, if different, ROW User(s) are responsible for performance of and compliance with all provisions of this Chapter. SECTION 30. That Section 250.930 of the Code of the City is hereby amended to read as follows: Section 250.930 Indemnification A permittee operating under the provisions of this chapter shall fully indemnify, release, defend (with counsel acceptable to the city) and hold harmless the city, agents of the city when acting in their capacity as municipal officials, 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, from the action or inaction of the ROW user, its agents,representatives, employees, contractors, subcontractors or any other person for whose acts the ROW user may be liable, in constructing, operating,maintaining,repairing, restoring or removing facilities, or use of the rights-of-way or the activities performed, or failed to be performed, by the ROW user under this chapter or applicable law, or otherwise, except to the extent arising from or caused by the sole or gross negligence or willful misconduct of the city, its elected officials, officers, employees, agents or contractors. Nothing herein shall be deemed to prevent the city, or any agent from participating in the defense of any litigation by their own counsel at their own expense. Such participation shall not under any circumstances relieve the person from his duty to defend against liability or his duty to pay any judgment entered against the city, or its agents. This indemnification shall survive the expiration or termination of any ROW use agreement, franchise, license,permit, or other authorization for a period of five (5) years after the effective date of expiration or termination. SECTION 31. SEVERABILITY CLAUSE. The portions of this Ordinance shall be severable. In the event that any portion of this Ordinance is found by a court of competent jurisdiction to be invalid, the remaining portions of this Ordinance are valid, unless said court finds that the valid portions of this Ordinance are so essential and inseparably connected with and dependent upon the void portion that it cannot be presumed that the Board of Aldermen would have enacted the valid portions without the invalid ones, or unless the court finds that the valid portions standing alone are incomplete and area incapable of being executed in accordance with legislative intent. SECTION 32. EFFECTIVE DATE. This ordinance shall be in full force and effect from and after the date of its passage and approval. BE IT REMEMBERED that the above was read two times by heading only, PASSED AND APPROVED by a majority of the Board of Aldermen and APPROVED by the Mayor of the City of Riverside this_&:�w day of , 2018. cr' r Kathleen L. Rose ATTEST;-'...-' Robin'Kincaid, City @lerk' . `