[Ord. No. 4811 §1, 2-4-2002]
This Article shall be known and may be cited as the "Rights-of-Way
Usage Code".
[Ord. No. 4811 §1, 2-4-2002]
Definitions And Usage — General. For
the purposes of this code, the following terms, phrases, words and
abbreviations shall have the meanings given herein, unless otherwise
expressly stated. When not inconsistent with the context, words used
in the present tense include the future tense and vice versa, words
in the plural number include the singular number and vice versa, and
the masculine gender includes the feminine gender and vice versa.
The words "shall" and "will" are
mandatory, and "may" is permissive. For convenience,
the first (1st) letter of terms, phrases, words and abbreviations
defined in this code or by Federal law have been capitalized, but
an inadvertent failure to capitalize such letter shall not affect
meaning.
Includes facilities proposed to be placed above ground, at
a fixed location, but excluding facilities to be placed on existing
utility poles.
[Ord. No. 5260 § 1, 9-2-2014]
A facility consisting of any device, array or antenna of
any kind including, but not limited to, whip antennas, panel antennas
and satellite antennas that transmits or receives electromagnetic
signals to deliver microwave, cellular, broadcast or other non-wire
voice, data or video communications service through the airwaves above
the rights-of-way and which attach to either pre-existing or subsequently
approved facilities or structures.
A compensation fee approved by the City Council established
in the City's pertinent schedule of fees from time to time for the
rent of a portion of the rights-of-way by a person having facilities
within the rights-of-way. The antenna fee shall be calculated on the
number of antennas located within the ROW and shall not include any
linear foot fee, but a ROW user may be subject to both an antenna
fee and a linear foot fee.
The person applying for and receiving a ROW permit for ROW
work.
Form which an applicant must use to obtain a ROW permit to
conduct ROW work.
The City of Richmond Heights, Missouri, and its agencies,
departments, agents and employees acting within their respective areas
of authority.
"City Council" or "Council" shall mean the Governing Body of the City.
Any facilities, street light poles, lighting fixtures, electroliers
or other structures or equipment located within the rights-of-way
and owned by the City.
The City Manager of the City of Richmond Heights, Missouri.
The accelerated depreciation of a portion of the rights-of-way
caused by excavation in or disturbance of any paved portion of the
rights-of-way resulting in the need to repair or maintain such portion
of the rights-of-way earlier than would be required if the excavation
or disturbance had not occurred (excluding concrete slabs or curbs
which shall be replaced rather than restored).
The fee charged by the City to recover the costs associated
with a decrease in the useful life of any paved rights-of-way caused
by excavation or other disturbance. The degradation fee shall not
apply to concrete slabs or curbs, which shall be replaced rather than
restored.
The City's Public Works Director or such other person designated
by the City Manager to administer and enforce this code.
Includes, but is not limited to, ROW work made necessary
by exigent circumstances to repair, control, stabilize, rectify or
correct the following:
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility that prevents or significantly jeopardizes
the ability of a ROW user to provide service;
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility that results or could result in danger
to the public or a material delay or hindrance to the provision of
service if the outage, cut, rupture, leak or other such failure is
not immediately repaired, controlled, stabilized, rectified or corrected;
or
Any occurrence involving a facility that a reasonable person
would conclude under the circumstances that immediate and undelayed
action was necessary and warranted.
A network or system or any part thereof used for providing
or delivering a service and consisting of one (1) or more lines, pipes,
irrigation systems, wires, cables, fibers, conduit facilities, poles,
vaults, pedestals, boxes, appliances, antennas, transmitters, towers,
gates, meters, appurtenances or other equipment.
Any County, township, City, Town, Village, school district,
library district, road district, drainage or levee district, sewer
district, water district, fire district or other municipal corporation,
quasi-municipal corporation or political subdivision of the State
of Missouri or any other State, any agency or instrumentality of the
State of Missouri or any other State or the United States, and any
cooperative district allowed by law acting in a governmental rather
than a proprietary capacity.
A compensation fee approved by the City Council and established
in the City's pertinent schedule of fees from time to time for the
rent of a portion of the rights-of-way by a person having facilities
within the rights-of-way. The linear foot fee shall be calculated
on the length, in linear feet, of the rights-of-way in or on which
facilities are located and shall not include any antenna fee, but
a ROW user may be subject to both a linear foot fee and an antenna
fee.
An individual, partnership, limited liability corporation
or partnership, association, joint stock company, trust, organization,
corporation or other entity or any lawful successor thereto or transferee
thereof.
Any person having a possessory interest in, with the right
of physical access (as permitted by this code) to, facilities located
within the rights-of-way.
Unless otherwise restricted herein, the surface, the air space
above the surface, and the area below the surface of any public street,
highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel,
parkway, waterway, public easement, or sidewalk in which the City
now or hereafter holds any interest, which, consistent with the purposes
for which it was dedicated, may be used for the purpose of installing
and maintaining facilities. Rights-of-way shall not include:
City facilities or the City's property other than ROW,
such as City-owned or operated buildings, parks, or other similar
property;
Airwaves used for cellular, non-wire telecommunications or broadcast
services;
Easements obtained by ROW users on private property;
Railroad rights-of-way or ground used or acquired for railroads;
Facilities owned and used by the City for the transmission of
one (1) or more services; or
Pipes, cables, conduits, optical cables or other means of transmission,
collection or exchange of communications, information, substances,
data or electronic current or impulses utilized by a municipally owned
utility.
No reference herein to "rights-of-way" shall be deemed to be
a representation or guarantee by the City that its interest or other
right to control the use of such property is sufficient to permit
its use for the delivery of service.
[Ord. No. 5260 § 1, 9-2-2014]
A permit granted by the City to a ROW user for ROW work.
A person performing ROW work within the rights-of-way. A
ROW user shall not include ordinary vehicular or pedestrian use.
Action by a ROW user to:
Install, change, replace, relocate, remove, maintain or repair
facilities within the rights-of-way, or
To conduct work of any kind within or adjacent to the rights-of-way
that results in an excavation, obstruction, disruption, damage or
physical invasion or impact of any kind to the rights-of-way or the
use thereof. The routine inspection of facilities shall not be considered
ROW work unless the inspection requires the conduct of any of the
activities or actions noted herein.
Providing or delivering an economic good or an article of
commerce, including, but not limited to, gas, telephone, cable television,
Internet, open video systems, alarm systems, steam, electricity, water,
telegraph, data transmission, petroleum pipelines, sanitary or stormwater
sewerage or any similar or related service, to one (1) or more persons
located within or outside of the City using facilities within the
rights-of-way.
A person having facilities within the rights-of-way, which
such facilities consist primarily of antennas, transmitters, towers
or other appliances or equipment used to deliver a cellular, broadcast,
data transmission or other non-wire communications service through
the airwaves above the rights-of-way and which attach to either pre-existing
or subsequently approved facilities or structures.
In, along, under, over or across rights-of-way.
[Ord. No. 4811 §1, 2-4-2002]
A.
Registration Required.
1.
Any person desiring to become a person having facilities within the
ROW and any person having facilities within the ROW must register
with the City.
2.
Any person having or applying for a cable franchise from the City
under the Cable Communications Regulatory Code must register hereunder.
Such a person maintains all rights, privileges and obligations established
by its cable franchise and shall also remain subject to the Cable
Communications Regulatory Code. To the extent that any term of such
person's cable franchise conflicts with the Rights-of-Way Usage Code,
the terms of the cable franchise shall prevail. To the extent that
the Cable Communications Regulatory Code conflicts with the Rights-of-Way
Usage Code, the more stringent shall prevail.
3.
Any person that provides or intends to provide video programming
by means of an open video system pursuant to certification approved
by the Federal Communications Commission must register hereunder but
shall also remain subject to the applicable provisions of the Cable
Communications Regulatory Code. To the extent that the Cable Communications
Regulatory Code conflicts with the Rights-of-Way Usage Code, the more
stringent shall prevail.
4.
As of the effective date of this Code, any person having facilities
within the ROW pursuant to a duly-issued, lawful and applicable license
or franchise shall register hereunder. Such person maintains all rights,
privileges and obligations established by its license or franchise.
To the extent that any terms of such person's license or franchise
conflicts with the Rights-of-Way Usage Code, the terms of the license
or franchise shall prevail.
B.
Effectiveness Of Registration. Registration hereunder by
an eligible person shall remain effective for so long as that person
remains eligible, unless terminated by the person or the City hereunder.
Any registration of an ineligible person shall be void from the date
of ineligibility.
C.
Registration Characteristics.
1.
A valid registration hereunder authorizes the issuance of ROW permits
to the registered person in accordance with this code. It does not
expressly or implicitly authorize ROW work without a ROW permit, or
work on private property without owner consent through eminent domain
or otherwise (except for use of compatible easements pursuant to Federal
law), or to use publicly or privately owned facilities without a separate
agreement with the owners.
2.
A valid registration hereunder shall not eliminate the need to obtain
any franchise, license or permit for the privilege of transacting
and carrying on a business within the City as may be generally required
by the ordinances and laws of the City other than this code or for
attaching devices to poles or other structures whether owned by the
City or other person.
3.
A valid registration grants no exclusive or vested rights to occupancy
within the rights-of-way other than those granted by this code or
the administration thereof.
4.
The right to obtain ROW permits shall be subordinate to any prior
lawful occupancy of the rights-of-way, and the City reserves the right
to designate where facilities are to be placed within the rights-of-way
as provided herein to the extent allowed by law.
D.
Registered Person Subject To Other Laws.
1.
A person required to register shall at all times be subject to and
shall comply with all applicable Federal, State and local laws and
shall at all times be subject to all lawful exercise of the Police
power of the City including, but not limited to, all powers regarding
zoning, supervision of construction, assurance of equal employment
opportunities, control of rights-of-way and consumer protection.
2.
Registration hereunder shall not deprive any person of any rights
or obligations imposed by any previously existing franchise, license
or contract, nor shall it impose any obligations on any such person
additional to those included in any previously existing franchise,
license or contract, except to the extent allowed by law.
3.
Nothing in this code shall be construed to prohibit the grant or
renewal of any franchise by the City as may be allowed or required
by State or Federal law.
4.
Nothing in this Code shall be construed or deemed to supersede any
applicable State or Federal law or any applicable regulation issued
by a State or Federal agency including, but not limited to, the Missouri
Public Service Commission and the Federal Communications Commission.
In the event of any conflict between such laws or regulations and
this Code, the applicable State or Federal law or regulation shall
apply.
E.
Failure To Register. Any person who has not registered within
ninety (90) days of the effective date of this code shall nonetheless
be subject to all requirements of this code including, but not limited
to, its provisions regarding ROW permits, construction and technical
standards and fees, except as otherwise provided herein. In its discretion
and to the extent allowed by law, the City at any time may:
1.
Require such person to register within thirty (30) days of receipt
of a written notice to such person from the City that registration
is required;
2.
Require such person to remove its facilities from the rights-of-way
and restore the affected area to a condition satisfactory to the City
within a specific time period;
3.
Direct municipal personnel to remove the facilities from the rights-of-way
and restore the affected area to a condition satisfactory to the City
and charge the person the costs therefor, including by placing a lien
on the person's property as provided in connection with abating nuisances;
or
4.
Take any other action it is entitled to take under applicable law.
Additionally, such person may also be subject to the imposition of
penalties as provided herein.
F.
Registration Exemption.
1.
Because of unique facilities, wireless transmission providers shall
be exempt from registration but shall be required to enter into a
license or franchise agreement with the City for facilities to be
located within the rights-of-way. Such license or franchise agreement
may deviate from the requirements of this code to accommodate or address
the unique facilities of wireless transmission providers, but nothing
herein shall be construed to require either the placement of such
facilities in the ROW or a license or franchise agreement for such
placement. The license or franchise agreement also may require payment
of a reasonable and appropriate rental fee as may be allowed by law.
Exemption from registration does not authorize a wireless transmission
provider to perform any ROW work unless the wireless transmission
provider either obtains a ROW permit as provided herein or performs
such work as may be specified in a license or franchise agreement.
The facilities of wireless transmission providers may also be subject
to such other lawful regulation as the City deems appropriate.
[Ord. No. 4811 §1, 2-4-2002]
A.
Requirements And Processing.
1.
Registration shall be accomplished in the form of a letter to the
City filed with the City Clerk.
2.
To be valid, the registration letter must be signed by an authorized
representative of the registering person, contain all required information
and be accompanied by a filing fee established in the City's pertinent
schedule of fees.
3.
At any time the City determines a registration letter does not comply
with this code, the City may return it to a point of contact identified
therein with a written explanation of the reason(s) for such return.
Filing fees shall not be refunded. Failure to return a registration
letter shall not validate an incomplete or otherwise invalid or void
registration letter.
B.
Contents Of Registration Letter. A registration letter shall
contain or be accompanied by the information required herein. All
such information received by the City shall remain confidential insofar
as permitted by the Missouri Open Meetings Law and other applicable
State and Federal law. The information required shall include:
1.
Name, address and legal status of the registering person;
2.
Name, title, address, telephone number, e-mail address and fax number
of individual(s) authorized to serve as the point of contact between
the City and the registering person so as to make contact possible
at any time (i.e., twenty-four (24) hours per day, seven (7) days
per week);
3.
Description of the general uses made or to be made of the facilities
located within the rights-of-way by the registering person, e.g.,
provision of service(s), transfer or lease of facilities (or portion
thereof, including bandwidth) to another person, use of the facilities
to transverse the City, construction of facilities to be used at a
later date, etc.;
4.
Description of all services provided or to be provided by the registering
person to any person located in the City through facilities located
within the rights-of-way and an explanation of the registering person's
legal qualifications to provide such services, including copies of
supporting documentation such as relevant certificates or orders from
the Federal Communications Commission, Missouri Secretary of State
and/or Missouri Public Service Commission or pertinent rules or Statutes;
5.
Name and address of any and all other persons providing service(s)
to any person located in the City through the registering person's
facilities located within the rights-of-way and a general description
of such service(s); and
6.
Current certificates of insurance in accordance with this Code.
C.
Notice Of Change. Within thirty (30) days of any changes in the information set forth in or accompanying its registration letter, a registered person shall notify the City of any such change. Such notices shall be submitted and processed in the same manner as an initial registration, except the filing fee established in Section 520.530(A)(2) shall not be required.
D.
Registration Index. The City Clerk shall maintain an index
of all registered persons and their point(s) of contact.
E.
Termination Of Registration.
1.
The City shall have the right to terminate a registration for a substantial
and ongoing failure to comply with this code or other applicable law
or for defrauding or attempting to defraud the City. To invoke the
provisions of this Section, the City Manager shall give the person
written notice of such intent. If within thirty (30) calendar days
following such written notice from the City the person has not completed
corrective action or corrective action is not being actively and expeditiously
pursued to the satisfaction of the City Manager, the City Manager
may commence a proceeding to consider terminating the person's registration
giving written notice of the reasons therefor.
2.
Prior to terminating a registration, the City Manager shall hold
a hearing, after giving at least ten (10) calendar days' notice to
the person, at which time the person shall be given an opportunity
to be heard. Following the hearing, the City Manager may determine
whether to terminate the registration based on the information presented
at the hearing and other information of record. If the City Manager
determines to terminate a registration, the decision shall be in writing
setting forth the reasons therefor. The City Manager may make such
decision conditional on a person's failure to resolve outstanding
problems or take appropriate steps to resolve such problems within
a specific period of time. A copy of such decision shall be provided
to the person.
3.
Once a registration has been terminated by the City Manager, the
person may not register again except upon express written approval
by the City Manager, which approval shall be withheld absent clear
and convincing evidence that the person has remedied all previous
violations and is in full compliance with all laws and will not in
the future violate this code or defraud the City.
[Ord. No. 4811 §1, 2-4-2002]
A.
ROW Permit Requirements.
1.
Any person desiring to perform ROW work must first apply for and
obtain a ROW permit in addition to any other building permit, license,
easement, franchise or authorization required by law. In the event
of a need for emergency ROW work, the person conducting the work shall
as soon as practicable notify the City of the location of the work
and shall apply for the required ROW permit as soon as practicable
following the commencement of the work, not to exceed the third (3rd)
business day thereafter. The Director may design and issue general
permits for emergency ROW work for several different locations or
throughout the City.
2.
No person having facilities within the ROW who has failed to register
with the City shall be granted a ROW permit, except as otherwise provided
or allowed by ordinance, franchise, license or written contract with
the City.
3.
All applications for ROW permits shall be submitted to the Director.
The Director may design and make available standard forms for such
applications, requiring such information as allowed by law and as
the Director determines in his or her discretion to be necessary and
consistent with the provisions of this code and to accomplish the
purposes of this code. Each application shall at minimum contain the
following information for the proposed ROW work, unless otherwise
waived by the Director:
a.
The name, address and telephone number of a representative whom the
City may notify or contact at any time (i.e., twenty-four (24) hours
per day, seven (7) days per week) concerning the work;
b.
If different from the applicant, the name of the person on whose
behalf the proposed work is to be performed;
c.
A description of the proposed work, including a conceptual master
plan and, when applicable, an engineering site plan or other technical
drawing showing the nature, dimensions and location of the applicant's
proposed work or facilities, their proximity to other facilities that
may be affected by the proposed work, and the number of street crossings
and their locations and dimensions;
d.
Projected commencement and termination dates and anticipated duration
of the work or, if such dates are unknown, a representation that the
applicant shall provide the Director with reasonable advance notice
of such dates once they are determined;
e.
If the applicant is, or is acting on behalf of, a person having facilities
within the ROW or a person desiring to become a person having facilities
within the ROW, verification that the applicant or such person has
registered with the City and that the information included in that
registration is accurate as of the date of the application; and
f.
Copies of any required certificates of insurance or performance/maintenance
bonds.
g.
For wireless transmission providers:
(1)
Technical information, including:
(a)
A detailed description of the physical dimensions and appearance
of the proposed facilities;
(b)
The chemical composition of any battery contained within the
proposed facilities;
(c)
Any hazardous material contained within the proposed facilities;
(d)
The potential for interference with the facilities of other
wireless transmission providers;
(e)
The potential for exposure to electromagnetic fields; and
(f)
Such other information as may be reasonably required by the Director and consistent with Subsection 520.540(B)(4) hereof; and
(2)
Certification, by a duly authorized representative of any person
owning a facility, utility pole or other structure within the ROW
upon which the applicant's facility is to be attached or secured,
that
4.
The information required by the application may be submitted in the
form maintained by the applicant, provided it is responsive to the
application's requirements, and the applicant shall be allowed a reasonable
amount of time to complete the application based on the amount of
data or information requested or required.
5.
Each such application shall be accompanied by the following payments:
a.
An application fee, as approved by the City Council and established
in the City's pertinent schedule of fees, to cover the cost of processing
the application;
b.
Any applicable degradation fee, established in the City Council and
established in the City's pertinent schedule of fees, but the Director
may waive the degradation fee for any excavation in the rights-of-way
undertaken within twelve (12) calendar months immediately preceding
the scheduled improvement or reconstruction of such rights-of-way;
and
c.
Any other amounts otherwise due to the City from the applicant including,
but not limited to, prior delinquent permit fees and costs, delinquent
rental fees and 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, but the Director may modify this
requirement to the extent the Director determines any such fees to
be in good-faith dispute or beyond the ability of the applicant to
control.
B.
ROW Permit Application Review And Determination.
[Ord. No. 5260 §2, 9-2-2014]
1.
The Director shall promptly review each completed application for
a ROW permit and shall grant or deny all such applications as provided
herein within thirty-one (31) days of receipt thereof. Upon a failure
to act on an application for a ROW permit within thirty-one (31) days,
it shall be deemed approved. Unless the application is denied, the
Director shall issue a ROW permit upon determining that the applicant
has submitted all necessary information, has paid the appropriate
fees and is in full compliance with this Article and all other City
ordinances. The Director may establish procedures for bulk processing
of applications and periodic payment of fees to avoid excessive processing
and accounting costs.
2.
It is the intention of the City that interference with, damage to,
excavation or disruption of, or the placement of facilities within,
the City's rights-of-way should be minimized and limited in scope
to the extent allowed by law to achieve the purposes of this Article.
When reasonable and necessary to accomplish such purposes, the Director
may recommend as alternatives to the proposed ROW work either less
disruptive methods or different locations for facilities, provided
that any required alternative shall not increase expenses by more
than ten percent (10%) of the applicant's costs for the work
as proposed, shall not result in a decline of service quality, and
shall be competitively neutral and non-discriminatory. The Director
shall justify to the applicant that the required alternative is reasonable
and necessary.
3.
Upon receipt of an application for a ROW permit, the Director shall
determine whether any portion of the rights-of-way will be affected
by the proposed ROW work and whether the interference or disruption
will be more than minor in nature. In determining whether the proposed
ROW work is more than minor in nature, the Director shall consider
the nature and scope of the work, its location and duration, and its
effect on the rights-of-way and the use thereof.
a.
If the applicant can show to the Director's reasonable satisfaction
that the work involves no or only minor interference, disruption or
damage to the rights-of-way or that the work involves time-sensitive
maintenance, then the Director shall promptly grant the ROW permit.
b.
If the Director determines that the effect on the rights-of-way will be more than minor in nature and no exemption under the above Subsection (a) or any other provision of this code applies, the Director shall schedule and coordinate the work and grant the ROW permit accordingly. When reasonable and necessary to accomplish the purposes of this code, the Director may postpone issuance of a ROW permit and may give public notice of the application in an attempt to identify whether other person(s) intend to do work in the same area within a reasonable period of time so that all ROW work in the area can be coordinated. Due regard shall be accorded applicants that are required by any law, rule, regulation, license or franchise to provide service to the area defined in the application. The Director shall not impose any coordination or scheduling requirements that prevent or unreasonably delay an applicant's access to the ROW or that create a barrier to entry.
c.
Applicants shall participate in any joint planning, construction
and advance notification of such work, including coordination and
consolidation of any excavation of or disturbance to the rights-of-way,
as directed by the Director. When deemed necessary to accomplish the
goals of this Section and to the extent permitted by law, the City
reserves the right, when feasible and reasonable, to require the sharing
of facilities by ROW users. Applicants shall cooperate with each other
and other ROW users and the City for the best, most efficient, most
aesthetic and least obtrusive use of the rights-of-way.
d.
The Director shall establish procedures allowing applicants to ascertain
whether existing capacity may be available from other persons utilizing
the rights-of-way along the intended path of any proposed work. The
Director shall also maintain indexes of all ROW permits issued, both
by the ROW user and by the affected rights-of-way.
4.
In addition to the foregoing and in addition to any other standards
or requirements imposed by this code with regard to an application
filed by a wireless transmission provider, the Director shall ensure
compliance with the following provisions:
a.
The design, location and nature of all facilities shall be subject
to the review and approval of the Director as provided herein. Such
review shall be non-discriminatory and competitively neutral, and
approvals shall not be unreasonably withheld.
b.
Facilities shall be a neutral color and shall not be bright, reflective
or metallic. Black, gray and tan shall be considered neutral colors,
as shall any color that blends with the surrounding dominant color
and helps to camouflage the proposed equipment. Facilities shall be
located in such a manner as to reduce or eliminate their visibility.
Screening may be appropriate and any screening materials shall be
maintained and replaced as needed.
c.
Facilities shall comply with the regulations established in the City's
Zoning Ordinance to the extent such regulations reasonably apply.
If the facilities consist of or require a tower, otherwise defined
as an antenna support structure, then the application shall obtain
a special antenna permit as provided in said ordinance.
d.
The Director may designate certain locations or facilities in the
ROW to be excluded from use by the applicant for its facilities including,
but not limited to:
(1)
Ornamental or similar specially-designed street lights,
(2)
Facilities, equipment, structures or locations that do not have
electrical service adequate or appropriate for the proposed facilities
or cannot safely bear the weight or wind loading thereof,
(3)
Facilities, equipment, structure or location that in the reasonable
judgment of the Director is/or are incompatible with the proposed
facilities or would be rendered unsafe or unstable by the installation,
and
(4)
Facilities, equipment, structure or location that have been
designated or planned for other use or are not otherwise available
for use by the applicant due to engineering, technological, proprietary,
legal or other limitations or restrictions.
e.
If the application of this Section 520.540(B)(4) excludes locations for facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director shall cooperate in good faith with the application to attempt to find suitable alternatives, but such alternatives may exceed the cost increase limitation established by Section 520.540(B)(2) and the City shall not be required to incur any financial cost or to acquire new locations for the application.
f.
The grant of a ROW permit shall not eliminate the need of a wireless
transmission provider to have obtained a license, permit or other
agreement for attaching facilities to other facilities, poles or other
structures, whether owned by the City or other person.
g.
Nothing in this code shall be construed to require that the City
grant wireless transmission providers access to any City facilities
or the City's proprietary property, but the City may enter into separate
agreements with wireless transmission providers to allow such access.
Such agreements may include the payment of reasonable attachment fees
for use of City facilities or other City property. All such agreements
shall be non-discriminatory and competitively neutral among wireless
transmission providers.
5.
Each ROW permit shall include:
a.
Projected commencement and termination dates or, if such dates are
unknown at the time the ROW permit is issued, a provision requiring
the ROW user to provide the Director with reasonable advance notice
of such dates once they are determined;
b.
Length of affected rights-of-way, number of road crossings and identification
and description of any pavement or curb cuts included in the work;
c.
Information regarding scheduling and coordination of work, if necessary;
d.
The location of any of the applicant's facilities, both those proposed
and existing, and the location of any known facilities owned by another
person that may be affected by the proposed work;
e.
An acknowledgement and representation by the applicant to comply
with the terms and conditions of the ROW permit and this code; and
f.
Such conditions and requirements as are deemed reasonably necessary
by the Director:
(1)
To protect structures and other facilities in the rights-of-way
from damage,
(2)
For the proper restoration of such rights-of-way, structures
and facilities,
(3)
For the protection of the public and the continuity of pedestrian
and vehicular traffic, and
(4)
For the protection of the public health, safety and welfare.
6.
An applicant receiving a ROW permit shall promptly notify the Director
of any material changes in the information submitted in the application.
The Director may issue a revised ROW permit or require that the ROW
user reapply for a ROW permit in accordance with all requirements
of this code.
7.
ROW permits inure to the benefit of the applicant, and the rights
granted thereunder may not be assigned or transferred to any other
person without the written consent of the Director.
8.
The Director may deny an application, if denial is deemed to be in
the public interest, for the following reasons:
a.
Delinquent fees, costs or expenses owed by the applicant;
b.
Failure to provide information required by the application or this
code;
c.
The applicant being in violation of the provisions of this code or
other pertinent and applicable City ordinances;
d.
Failure to return the ROW to its previous condition under previously
issued ROW permits or after prior excavations by the applicant;
e.
For reasons of environmental, historic or cultural sensitivity, as
defined by applicable Federal, State or local law, of land within
the scope of the application;
f.
For an applicant's refusal to comply with alternative ROW work methods
or locations required by the Director pursuant to this code; and
g.
For any other reason to protect the public health, safety and welfare,
provided that:
9.
For the purposes of Subsection 520.540(B)(8), the term "applicant" shall also include, when applicable, the person on whose behalf the applicant is to perform the ROW work. The Director may consider good-faith disputes with, or circumstances beyond the control of, the applicant or such person in determining whether to grant or deny the application.
C.
ROW Permit Revocation And Code Violation Prosecution.
1.
The Director may revoke a ROW permit without fee refund after notice
and an opportunity to cure, but only in the event of a substantial
breach of the terms and conditions of the ROW permit. Prior to revocation
the Director shall provide written notice to the ROW user identifying
any substantial breach and allowing a reasonable period of time not
longer than thirty (30) days to cure the problem, which cure period
may be immediate if certain activities must be stopped to protect
the public safety. The cure period shall be extended by the Director
on good cause shown by the ROW user. A substantial breach includes,
but is not limited to, the following:
a.
A material violation of a provision of the ROW permit;
b.
An evasion or attempt to evade any material provision of the ROW
permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the City or its residents;
c.
A material misrepresentation of fact in the ROW permit application;
d.
A failure to complete ROW work by the date specified in the ROW permit,
unless an extension is obtained or unless the failure to complete
the work is due to reasons beyond the ROW user's control; and
e.
A failure to correct, upon reasonable notice and opportunity to cure
as specified by the Director, work that does not conform to applicable
national safety codes, industry construction standards or the City's
pertinent and applicable ordinances including, but not limited to
this code, provided that City standards are no more stringent than
those of a national safety code.
2.
Any breach of the terms and conditions of a ROW permit shall also be deemed a violation of this code, and in lieu of revocation the Director may initiate prosecution of the ROW user for such violation as provided in Section 520.580(H) hereof.
[Ord. No. 4811 §1, 2-4-2002]
A.
Jurisdiction, Inspection And Stop Work Orders.
1.
All facilities and ROW work shall be subject to inspection by the
City and the supervision of all Federal, State and local authorities
having jurisdiction in such matters to ensure compliance with all
applicable laws, ordinances, departmental rules and regulations.
2.
The Director shall have full access to all portions of the ROW work and may issue stop work orders and corrective orders to prevent unauthorized work, including work not meeting the standards established in Subsection (F) hereof. Such orders:
a.
May be delivered personally or by certified mail to the address listed
on the application for the ROW permit, the person in charge of the
construction site at the time of delivery or the registered person's
point of contact;
b.
Shall state that work not authorized by the ROW permit is being carried
out, summarize the unauthorized work and provide a period of not longer
than thirty (30) days to cure the problem, which cure period may be
immediate if certain activities must be stopped to protect the public
safety; and
c.
May be enforced by equitable action in the Circuit Court of St. Louis
County, Missouri, and in such case the person involved in the work
shall be liable for all costs and expenses incurred by the City in
enforcing such orders, including reasonable attorney's fees in addition
to any and all penalties established in this code.
B.
Installation Of Facilities.
1.
In conjunction with the City's long-standing policy favoring underground
construction, no person may erect, construct or install new poles
or other facilities above the surface of the rights-of-way without
the written permission of the City. Such permission may be granted
through a ROW permit when other similar facilities exist above ground
or when physical conditions are such that underground construction
is impossible, impractical or economically unfeasible, as determined
by the City, and when in the City's judgment the above ground construction
has minimal aesthetic impact on the area where the construction is
proposed.
2.
During installation of facilities and to the extent authorized by
law, existing underground conduits shall be used whenever feasible
and permitted by the owner thereof.
3.
In the case of new construction or property development, the developer
or property owner shall give to all persons registered hereunder reasonable
written advance notice of the particular date on which open trenching
will be available for installation of facilities. Costs of trenching
and easements required to bring facilities within the development
shall be borne by the developer or property owner; except that if
the facilities are not installed within five (5) working days of the
date the trenches are available, as designated in the notice given
by the developer or property owner, then once the trenches are thereafter
closed, the cost of new trenching shall be borne by the person installing
the facilities.
C.
Relocation Of Equipment And Facilities.
1.
In the event of an emergency, or where construction equipment or
facilities create or are contributing to an imminent danger to health,
safety or property, the City may, to the extent allowed by law, remove,
relay or relocate such construction equipment, or the pertinent parts
of such facilities, without charge to the City for such action or
for restoration or repair. The City shall attempt to notify the owner
of the construction equipment or facilities prior to taking such action,
but the inability to do so shall not prevent same. Thereafter, the
City shall notify the owner of the construction equipment or facilities
as soon as practicable.
2.
Should the grades or boundaries of the rights-of-way be changed at
any time, a ROW user shall, if necessary, at its own cost and expense,
relocate or change its facilities so as to conform with the new grades
or boundaries. This requirement shall not apply when the ROW user
holds a valid easement that existed prior to the date when the area
in question became rights-of-way. The ROW user shall bear the burden
of establishing to the City's satisfaction the fact of the pre-existing
easement.
3.
At the City's direction, all facilities shall be moved underground
and the cost shall be solely the obligation of the owners (or as otherwise
allowed or required by law).
4.
Any ROW user shall, on the request of the City or any person authorized
by the City, temporarily relocate facilities to permit the moving
of buildings or oversized vehicles.
5.
Any ROW user shall, within a reasonable time specified by the City,
protect, support, disconnect, relocate or remove, at its own expense,
construction equipment or discrete portions of its facilities when
required by the City by reason of traffic conditions; public safety;
rights-of-way construction, maintenance or repair (including resurfacing
or widening); change of rights-of-way grade; construction, installation
or repair of sewers, drains, water pipes, power lines, signal lines,
tracks, or any type of government-owned communications system, public
work or improvement or any government-owned utility; rights-of-way
vacation; or for any other purpose where the convenience of the City
would be reasonably served thereby.
6.
If any action under Subsections (4) or (5) is reasonably required of a ROW user to accommodate a person or another ROW user, the ROW user shall, after reasonable advance written notice, take action to effect the necessary actions requested, and the actual cost, reasonably incurred, of such actions shall be paid by the person or ROW user upon whose behalf the action is requested. The ROW user taking such action shall have the authority to require such payment in advance.
7.
Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (E) hereof.
8.
No action hereunder shall be deemed a taking of property, and no
person shall be entitled to any compensation therefor. No location
of any facilities within the rights-of-way shall be a vested interest.
D.
Property Repair And Alterations.
1.
During any ROW work, the person doing the work shall protect from
damage any and all existing structures and property belonging to the
City and any other person. Any and all rights-of-way, public property
or private property disturbed or damaged during the work shall be
repaired or replaced by the person doing the work or the person on
whose behalf the work is being done, and such person shall immediately
notify the owner of the fact of the damaged property. Such repair
or replacement shall be completed within a reasonable time specified
by the Director and to the Director's satisfaction.
2.
Any alteration to the existing water mains, sewerage or drainage
system or to any City, State or other public structures or facilities
in the rights-of-way required on account of the construction, installation,
repair or maintenance of facilities within the rights-of-way shall
be made at the sole cost and expense of the owner of such facilities.
E.
Removal, Abandonment And Transfer Of Facilities.
1.
If a registration is terminated, the City may require that the person
having facilities within the ROW remove its facilities from the rights-of-way
at the person's expense. In removing its facilities the person shall
obtain a ROW permit and restore any excavation that shall be made
by it as required by this code. The liability, indemnity, insurance
and bonding requirements as provided herein shall continue in full
force and effect during and after the period of removal and restoration
and until full compliance by the person with the terms and conditions
of this Subsection and the requirements of this code.
2.
If the person having facilities within the ROW fails to remove the
facilities and restore the ROW within a reasonable period of time,
the City may, to the extent permitted by law, have the removal done
at the person's expense.
a.
Alternatively, the City may permit the abandonment, without removal,
of any facilities if the Director determines that abandonment will
not result in interference with the use or maintenance of the rights-of-way
or if ownership of the facilities is transferred as provided herein.
b.
The City may decide that the ownership of the facilities shall revert
to the City or to such person as directed by the City. In either case
the owner of the facilities, if required by the City and permitted
by law, shall submit a written instrument, satisfactory in form to
City, transferring to the City, or to such person as directed by the
City, ownership of the facilities. The City may sell, assign or transfer
all or part of the facilities reverting to the City.
3.
If a person having facilities within the ROW
a.
Discontinues use of any facility for a continuous period of twelve
(12) months,
b.
Has installed the facilities without complying with the requirements
of this code, or
c.
Declares the facilities abandoned, or if such facilities are
(1)
No longer in active use,
(2)
No longer capable of being used for the same or similar purpose
for which the facilities were installed, or
(3)
Are physically disconnected from any other facility that is in use or in service, the facilities may be deemed abandoned. If such abandonment occurs, the City may require the removal of the facilities, remove the facilities at the expense of the person having facilities within the ROW, allow the abandonment of the facilities without removal or require the transfer of the facilities, all as provided in this Subsection (E).
4.
The City shall not remove any facilities unless the existence of
such facilities prevents or significantly impairs the use, repair,
excavation or construction of the ROW. The City shall not remove or
seek to possess or transfer the facilities until thirty (30) days
have passed following written notice to the person having facilities
within the ROW of the City's intent to so act. The City may choose
not to act on good cause shown by the person having facilities within
the ROW.
F.
Standards For ROW Work.
1.
Except for emergency ROW work as provided in Section 520.540(A)(1), ROW work shall be performed only upon issuance and in accordance with the requirements of a ROW permit. At all times during the work, ROW permits shall be conspicuously displayed at the work site and shall be available for inspection by the Director.
2.
If at any time it appears that the duration or scope of the ROW work
shall differ from that allowed by the ROW permit, the ROW user shall
inform the Director. The Director may issue a waiver, an extension
or a revised ROW permit, or require that the ROW user reapply for
a ROW permit in accordance with all requirements of this code.
3.
ROW users shall not open or encumber more of the rights-of-way than
is reasonably necessary to complete the ROW work in the most expeditious
manner or allow excavations to remain open longer than is necessary
to complete the work.
4.
All ROW work that affects vehicular or pedestrian traffic shall be
properly signed, barricaded and otherwise protected at the ROW user's
expense. The ROW user shall be responsible for providing adequate
traffic control to the area surrounding the work as determined by
the Director.
5.
The ROW user shall perform the ROW work at such times that will allow
the least interference with the normal flow of traffic and the peace
and quiet of the neighborhood, as permitted by the Director. Unless
otherwise provided by the Director in the permit, non-emergency ROW
work on arterial and collector streets may not be accomplished during
the hours of 7:00 A.M. to 8:30 A.M. and 4:00 P.M. to 6:00 P.M. in
order to minimize disruption of traffic flow.
6.
The ROW user shall notify the City no less than three (3) working
days in advance of any ROW work that would require any street closure
or would reduce traffic flow to less than two (2) lanes of moving
traffic for more than four (4) hours. Except in the event of emergency
ROW work, no such closure shall take place without notice and prior
authorization from the City.
7.
All ROW work shall be in accordance with all applicable Sections
of the Occupational Safety and Health Act of 1970, the National Electrical
Safety Code, and other Federal, State or local laws and regulations
that may apply including, without limitation, local health, safety,
construction and zoning codes and laws and accepted industry practices,
all as hereafter may be amended or adopted. In the event of a conflict
among codes and standards, the most stringent code or standard shall
apply (except insofar as that code or standard, if followed, would
result in facilities that could not meet requirements of Federal,
State or local law).
8.
All facilities shall be installed and located to cause minimum interference
with the rights and convenience of property owners, other ROW users
and the City. Facilities shall not be placed where they will disrupt
or interfere with other utility facilities or public improvements
or obstruct or hinder in any manner the various utilities serving
the residents and businesses in the City or public improvements.
9.
All facilities shall be of good and durable quality.
10.
All ROW work shall be conducted in accordance with good engineering
practices, performed by experienced and properly trained personnel
so as not to endanger any person or property or to unreasonably interfere
in any manner with the rights-of-ways or legal rights of any property
owner, including the City, or unnecessarily hinder or obstruct pedestrian
or vehicular traffic.
11.
All safety practices required by law shall be used during ROW work,
including commonly accepted methods and devices to prevent failures
and accidents that are likely to cause damage, injury or nuisance
to the public.
12.
Any contractor or subcontractor of a ROW user must be properly licensed
under laws of the State and all applicable local ordinances, and each
contractor or subcontractor shall have the same obligations with respect
to its work as a ROW user would have pursuant to this code. A ROW
user:
a.
Must ensure that contractors, subcontractors and all employees performing
ROW work are trained and experienced,
b.
Shall be responsible for ensuring that all work is performed consistent
with the ROW permit and applicable law,
c.
Shall be fully responsible for all acts or omissions of contractors
or subcontractors,
d.
Shall be responsible for promptly correcting acts or omissions by
any contractor or subcontractor, and
e.
Shall implement a quality control program to ensure that the work
is properly performed.
G.
Restoring And Maintaining The Rights-Of-Way.
1.
To complete any ROW work the ROW user shall restore the ROW and surrounding areas, including, but not limited to, any pavement, foundation, concrete slabs or curbs, in accordance with the standards of Subsection (F) hereof and the reasonable conditions of the Director. Restoration of the ROW shall be completed within the dates specified in the ROW permit unless the Director issues a waiver, extension or a new or revised ROW permit.
2.
If a ROW user fails to restore the ROW within the date specified
either by the ROW permit or any extension thereof as granted by the
Director, the City may perform its own restoration. The City may also
opt to perform its own restoration regardless of any failure by the
ROW user, in which case the ROW permit, or any amendment or revision
thereto, shall note such option. In either event, if the City performs
the restoration, the ROW user shall be responsible for reimbursing
the City's reasonable actual restoration costs within thirty (30)
days of invoice.
3.
Every ROW user to whom a ROW permit has been granted shall guarantee
for a period of four (4) years the restoration of the ROW in the area
where the ROW user conducted excavation and performed the restoration.
During this period the ROW user shall, upon notification from the
Director, correct all restoration work to the extent necessary as
required by the Director. Said work shall be completed within a reasonable
time, not to exceed thirty (30) calendar days from receipt of the
Director's notice unless otherwise permitted by the Director. If a
ROW user fails to restore the ROW within the time specified, the City
may perform the work and the ROW user shall be responsible for reimbursing
the City's reasonable actual restoration costs within thirty (30)
days of invoice. The Director may extend the cure period on good cause
shown.
H.
Mapping Requirements. After the completion of ROW work,
the ROW user shall provide to the City as-built drawings, maps or
other comparable records as determined by the Director, drawn to scale
and certified to the City as reasonably depicting the location of
all facilities constructed pursuant to the ROW permit. Such records
may be provided to the Director in the form maintained by the ROW
user, but when available to the ROW user, shall be submitted in AUTOCAD.DXF,
AUTOCAD.DWG, MICROSTATION DGN (or comparable, as allowed by the Director)
automated formats, or in hard copy otherwise.
I.
Performance And Maintenance Bonds.
1.
Prior to any ROW work a ROW user shall establish in the City's favor a performance and maintenance bond in an amount to be determined by the Director to ensure the restoration of the rights-of-way. The bond shall continue in full force and effect for a period of twenty-four (24) months following completion of the work. The Director shall have the authority to extend the maintenance bond period for up to an additional twenty-four (24) months in the same manner as provided in Section 520.550(G)(2) hereof. The Director may waive this requirement when the work involves no or only minor disruption or damage to the rights-of-way. The Director shall waive this requirement when the ROW user has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance with the provisions of this code.
2.
In the event a ROW user fails to complete the ROW work in a safe,
timely and competent manner, or if the completed restorative work
fails within the time period for the bond (as determined by the Director),
then after notice and a reasonable opportunity to cure, there shall
be recoverable, jointly and severally from the principal and surety
of the bond any damages or loss suffered by the City as a result,
including the full amount of any compensation, indemnification or
cost of removal or abandonment of any property of the ROW user and
the cost of completing work within or restoring the rights-of-way,
plus a reasonable allowance for attorneys' fees, up to the full amount
of the bond. The City may also recover against the bond any amount
recoverable against a security fund or letter of credit where such
amount exceeds that available under a security fund or letter of credit.
3.
Upon completion of ROW work to the satisfaction of the Director and
upon lapse of the bond period, including any extension by the Director,
the City shall eliminate the bond.
4.
The bond shall be issued by a surety with an "A" or better rating
of insurance in Best's Key Rating Guide, Property/Casualty Edition,
shall be subject to the approval of the City Attorney and shall contain
the following endorsement:
"This bond may not be cancelled or allowed to lapse until sixty
(60) days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
5.
In lieu of the bond required herein, the ROW user may establish in
the City's favor such other security as the City Manager may determine
to be commensurate with the noted bonding requirements including,
but not limited to, an annual bond to be maintained in the minimum
amount of twenty-five thousand dollars ($25,000.00).
J.
Miscellaneous.
1.
Upon failure of a ROW user to commence, pursue or complete any ROW
work required by law or by the provisions of this code to be done
in any street within the time prescribed and to the reasonable satisfaction
of the City, the City may, at its option, after thirty (30) days notice,
cause such work to be done and the ROW user shall pay to the City
the cost thereof in the itemized amounts reported by the City to the
ROW user within thirty (30) days after receipt of such itemized report.
2.
Upon ten (10) days' written notice and with the supervision of the
City, or as otherwise provided by law, a ROW user shall have the authority
to trim trees that overhang rights-of-way of the City so as to prevent
the branches of such trees from coming in contact with its facilities,
at its own expense subject to the supervision and direction of the
City. Nothing in this Subsection shall authorize the trimming of trees
on private property without permission of the property owner. All
cut materials shall be properly disposed.
3.
During ROW work by a ROW user the City shall have the right to install,
and to thereafter maintain, at its own cost in any excavation to or
other applicable disturbance of the ROW any parallel facilities of
its own that do not unreasonably interfere with the operations of
other facilities.
4.
Nothing in this code shall be in preference or hindrance to the right
of the City and any board, authority, commission or public service
corporation of the City to use or occupy the rights-of-way or to perform
or carry on any public works or public improvements of any description.
[Ord. No. 4811 §1, 2-4-2002]
A.
Persons
subject to rental fees as provided herein shall maintain sufficient
records to document accurate payment of such rental fees including,
but not limited to, such plans, records or maps showing the approximate
location and length of all facilities located within the rights-of-way.
B.
The
City shall have the right to inspect at a location in the metropolitan
St. Louis area all records that are reasonably necessary to monitor
compliance with the terms of this code. A person having facilities
within the ROW shall be responsible for collecting and producing such
information and by registering affirms that it will do so.
C.
The
City Manager may require provision or retention of additional information,
records and documents from time to time as may be reasonably necessary
or appropriate to the performance of any of the rights, functions
or duties of the City in connection with this code.
D.
All
records and information referenced herein shall be subject to inspection
and copying by the City, at no cost to the City, to ensure code compliance.
All records and information received by the City shall remain confidential
insofar as permitted by the Missouri Open Meetings Law and other applicable
State and Federal laws. If any records cannot be copied for security
or other reasons, the person having facilities within the ROW shall
nonetheless make such records available for City inspection and shall
reimburse the City for all reasonable costs incurred by the City in
inspecting those records.
E.
If
any records are too voluminous, then the person may request that the
inspection take place at some other location outside the metropolitan
St. Louis area, provided that such person must pay all reasonable
travel expenses incurred by the City in inspecting those records.
[Ord. No. 4811 §1, 2-4-2002; Ord. No. 5389, 8-20-2018]
A.
Finding And Intent. The City finds that rights-of-way
are valuable public property acquired and maintained at great expense
to taxpayers. The City further finds that the grant of permission
to locate facilities within the rights-of-way is a valuable property
right and eliminates the need to invest substantial capital in the
private location of such facilities. Any person that places facilities
within the rights-of-way after the effective date of this code and
any person that leaves existing facilities within the rights-of-way
more than ninety (90) days after the effective date of this code shall
be deemed to have agreed to pay compensation for such use of the rights-of-way
as established herein. It is the intent of this Section that the rental
fees provided for herein be applied to and be paid by only those persons
having facilities within the rights-of-way. This Section codifies
the City's long-established policy of imposing fees on right-of-way
users.
B.
Payment To City. Any person having facilities within
the ROW shall pay to the City annual rent consisting of, depending
on the facility, linear foot fees and antenna fees for the use of
the affected rights-of-way for the applicable facilities.
C.
Not A Tax Or In Lieu Of Any Other Tax Or Fee — Exemption Due
to Payment of Business License Taxes Or Gross Receipts Taxes.
1.
The rental fees are not a tax, license or fee subject to any
requirement of voter approval, but rather constitute a charge for
special and individualized use of public property.
2.
Rental fees are in addition to all other fees and all taxes
and payments that a person may be required to pay under any Federal,
State or local law, including any applicable property and amusement
taxes.
3.
As provided by Section 67.1846, RSMo., no person shall be obligated
to pay rental fees if such person pays to the City gross receipts
taxes, business license fees, or business license taxes that are more
than nominal and that are imposed specifically on communications-related
revenues, services or equipment. Further, no wireless provider shall
be obligated to pay any antenna fee hereunder.
D.
Payments.
1.
The rental fees shall be paid quarterly to the City and shall
commence as of the later of the effective date of this code or the
first day on which a person having facilities within the ROW places
facilities within the rights-of-way. The City shall be furnished at
the time of each payment with a statement certified by the payer's
chief financial officer or comparable officer or by an independent
certified public accountant reflecting the calculation of the total
amount of rental compensation for the payment period. Payments shall
be made to the City no later than forty-five (45) days following the
end of each calendar quarter.
2.
In the event any rental fee or other payment due hereunder is
not made on or before the date specified herein, interest charges
shall also be due, computed from such due date, at an annual rate
equal to the commercial prime interest rate of the City's primary
depository bank during the period such unpaid amount is owed plus
a penalty of two percent (2%) of the amount.
E.
No Accord Or Satisfaction. No acceptance of any
payment by the City shall be construed as a release or an accord and
satisfaction of any claim the City may have for further or additional
sums payable as rental fees under this code or for the performance
of any other obligation.
F.
Audit. The City shall have the right to inspect all reasonably necessary records and the right to audit and to recalculate any amounts determined to be payable under this code. Persons subject to rental fees hereunder shall be responsible for providing the records to the City at an office located within the metropolitan St. Louis area except as provided in Section 520.560(E). Such records shall be maintained for at least five (5) years. The City's audit expenses shall be borne by the person audited if the rental fees paid during the audit period are less than ninety-five percent (95%) of the amount owed according to the audit. Any additional amounts due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the person by the City of the underpayment, which notice shall include a copy of the audit report. If recalculation results in an additional amount to be paid to the City, such amount shall be subject to interest and penalties as specified in Subsection (D)(2) above.
G.
Exemption From Rental Fees.
1.
Persons having facilities within the ROW pursuant to a duly
issued, lawful and applicable license or franchise shall be exempt
from this Section for the duration of such license or franchise, provided
they continue to pay on a timely basis all fees due under such license
and franchise.
2.
Governmental entities having facilities within the ROW shall
not be liable for rental fees.
[Ord. No. 4811 §1, 2-4-2002]
A.
Insurance Required. All ROW users shall maintain for the
duration of any ROW work and, when applicable, for as long as the
ROW user has facilities within the rights-of-way at least the following
liability insurance coverage: Workers' Compensation and employer liability
insurance to meet all requirements of Missouri law and commercial
general liability insurance with respect to the construction, operation
and maintenance of the facilities, and the conduct of the ROW user's
business in the City, in the minimum amounts of:
1.
Two million dollars ($2,000,000.00) for property damage resulting
from any one (1) accident;
2.
Five million dollars ($5,000,000.00) for personal bodily injury or
death resulting from any one (1) accident; and
3.
Two million dollars ($2,000,000.00) for all other types of liability.
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These insurance requirements shall not be construed to limit
the liability of any person.
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B.
Qualifications Of Sureties. All insurance policies shall
be with sureties qualified to do business in the State of Missouri
with an "A" or better rating of insurance by Best's Key Rating Guide,
Property/Casualty Edition, and in a form approved by the City.
C.
Policies Available For Review. All insurance policies shall
be available for review by the City and a ROW user having facilities
within the rights-of-way shall keep on file with the City current
certificates of insurance.
D.
Additional Insureds — Prior Notice Of Policy Cancellation. All general liability insurance policies shall name the City, its
officers, boards, board members, commissions, commissioners, agents
and employees as additional insureds and shall further provide that
any cancellation or reduction in coverage shall not be effective unless
thirty (30) days' prior written notice thereof has been given to the
City Clerk. A ROW user shall not cancel any required insurance policy
without submission of proof that it has obtained alternative insurance that complies with this code.
E.
Exemption From Insurance Requirements. The City Manager may exempt in writing from the requirements of Sections 520.580(A) through 520.580(D) any self-insured ROW user, provided that the ROW user demonstrates to the City Manager's satisfaction that the ROW user's self-insurance plan is commensurate with said requirements and that the ROW user has sufficient resources to meet all potential risks, liabilities and obligations contemplated by the requirements of this code. The City Manager may require a security fund or letter of credit as a condition to a self-insured's exemption. The City Manager shall waive this requirement when the ROW user has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance with the provisions of this code.
F.
Indemnification.
1.
Any ROW user granted a ROW permit, and any person having facilities
within the rights-of-way, as partial consideration for the privilege
granted, shall, at its sole cost and expense, indemnify, hold harmless
and defend the City, its officials, boards, board members, commissions,
commissioners, agents and employees, against any and all claims, suits,
causes of action, proceedings and judgments for damages or equitable
relief arising out of:
2.
The foregoing indemnity provisions include, but are not limited to,
the City's reasonable attorneys' fees incurred in defending against
any such claim, suit or proceeding prior to the person assuming such
defense. The City shall notify a person of claims and suits as soon
as practicable, but failure to give such notice shall not relieve
a person of its obligations hereunder. Once a person assumes such
defense, the City may at its option continue to participate in the
defense at its own expense.
3.
Notwithstanding anything to the contrary contained in this code,
the City shall not be so indemnified or reimbursed in relation to
any amounts:
G.
Relation To Insurance And Indemnity Requirements. Recovery
by the City of any amounts under insurance, a performance bond or
otherwise does not limit a person's duty to indemnify the City in
any way, nor shall such recovery relieve a person of amounts owed
to the City, or in any respect prevent the City from exercising any
other right or remedy it may have.
H.
Penalties. Any person violating any provision of this code
shall, upon conviction by the City's Municipal Court, be punished
by a fine not to exceed one thousand dollars ($1,000.00) or by imprisonment
not to exceed ninety (90) days, or by both such fine and imprisonment.
Each day the violation continues may be charged as a separate offense.
[Ord. No. 4811 §1, 2-4-2002; Ord. No. 5260 §3, 9-2-2014]
A.
The Director shall make a final determination as to any matter concerning
the grant, denial or revocation of a ROW permit as provided in this
Article. On the request of an applicant or a ROW user and within a
reasonable period of time, the Director also shall make a final determination
as to any other issue relating to the use of the ROW, the imposition
of any fee or the application of any provision of this Article; provided,
however, that this review shall not apply to matters being prosecuted
in the municipal court. Any final determination of the Director shall
be subject to review as provided herein.
B.
Any person aggrieved by the final determination of the Director may
file a petition for review pursuant to Chapter 536 of the Revised
Statutes of Missouri, as amended, in the Circuit Court of the County
of St. Louis. Such petition shall be filed within thirty (30) days
after the Director's final determination. Nothing shall deny
the authority of its right to a hearing before the court.
[Ord. No. 4811 §1, 2-4-2002]
A.
Captions. Captions throughout this code are intended solely
to facilitate reading and reference to the Sections and provisions.
Such captions shall not affect the meaning or interpretation of this
code.
B.
Interpretation Of Code. The provisions of this code shall
be liberally construed to promote the public interest.
C.
Expense. Any act that a person is required to perform by
this code or other law shall be done at the person's expense, without
City reimbursement, unless expressly provided to the contrary by law.
D.
Eminent Domain. Nothing herein shall be deemed or construed
to impair or affect, in any way or to any extent, the power of eminent
domain held by the City or any other person.
E.
Exclusive Contracts And Anti-Competitive Acts Prohibited.
1.
Unless otherwise allowed by law, no person shall enter into or enforce
an exclusive contract for the provision of services with any other
person or demand the exclusive right to serve another person or location
as a condition of extending service to that person or location or
any other person or location.
2.
No person shall engage in acts that have the purpose or effect of
limiting competition for the provision of services in the City, except
for such actions as are expressly authorized by law.
F.
No Recourse Against The City. Without limiting such immunities
as the City or other persons may have under applicable law, no person
shall have any recourse whatsoever against the City or its officials,
members, boards, commissions, agents or employees for any loss, costs,
expense, liability or damage arising out of any action undertaken
or not undertaken pursuant to any provision or requirement of this
code or because of the enforcement of this code or the City's exercise
of its authority pursuant to this code or other applicable law, unless
such recourse is expressly authorized by law.
G.
Rights And Remedies.
1.
The rights and remedies reserved to the City by this code are cumulative
and shall be in addition to and not in derogation of any other rights
and remedies which the City may have with respect to the subject matter
of this code.
2.
The City hereby reserves to itself the right to intervene in any
suit, action or proceeding involving any provision of this code.
3.
Specific mention of the materiality of any of the provisions herein
is not intended to be exclusive of any others for the purpose of determining
whether any failure of compliance hereunder is material and substantial.
4.
No course of dealing between any person and the City, or any delay
on the part of the City in exercising any rights hereunder, shall
operate as a waiver of any such rights of the City or acquiescence
in the actions of such person in contravention of such rights except
to the extent expressly waived in writing. No person shall be relieved
of its obligation to comply with any of the provisions of this code
by reason of any failure of the City to enforce prompt compliance.
Nor shall any inaction by the City be deemed to waive a provision
or render void any provision of this code.
H.
Force Majeure. A person shall not be deemed in violation
of this code where performance was hindered by war or riots, civil
disturbances, floods or other natural catastrophes beyond the person's
control, and a registration shall not be terminated or a person penalized
for such non-compliance, provided that the person takes prompt and
diligent steps to bring itself back into compliance and to comply
as soon as reasonably possible under the circumstances without unduly
endangering the health, safety and integrity of employees or property
or the health, safety and integrity of the public, rights-of-way,
public property or private property.
I.
Public Emergency. In the event of a public emergency or
disaster as determined by the City, a ROW user immediately shall make
facilities, employees and property, as may be reasonably necessary,
available for use by the City or other civil defense or governmental
agency designated by the City for the term of such emergency or disaster
for emergency purposes. In the event of such use, the ROW user shall
waive any claim that such use by the City constitutes a use of eminent
domain, provided that the City shall return use of the facilities,
employees and property to the ROW user promptly after the emergency
or disaster has ended.
J.
Calculation Of Time. Unless otherwise indicated, when the
performance or doing of any act, duty, matter or payment is required
under this code, and a period of time is prescribed and is fixed herein,
the time shall be computed so as to exclude the day of the act, event
or default after which the designated period of time begins to run
and include the last day of the prescribed or fixed period of time,
unless it is a Saturday, Sunday or legal holiday, in which event the
period runs until the next day which is neither a Saturday, Sunday
or legal holiday. If the period is less than seven (7) days, intermediate
Saturday, Sunday and legal holidays shall be excluded in the computation.
This paragraph shall not apply in the context of obligations that
continue on a daily basis.
K.
Severability. If any term, condition, clause, sentence or
provision of this code shall, to any extent, be held to be invalid
or unenforceable, the remainder hereof shall be valid in all other
respects and continue to be effective. In the event of a subsequent
change in applicable law so that the provision which had been held
invalid is no longer invalid, said provision shall thereupon return
to full force and effect without further action by the City and shall
thereafter be binding.
