Cross Reference — As to video services providers, see ch. 627.
[Ord. No. 1361 §1, 10-7-1997]
This Chapter shall be known and may be cited as the "Telecommunications Rights-of-Way Usage Code.
[Ord. No. 1361 §1, 10-7-1997]
For the purposes of this Chapter, 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. Unless otherwise expressly stated or clearly contrary to the context, terms, phrases, words and abbreviations not defined herein shall be given the meaning set forth in Title 47 of the United States Code as amended, and regulations issued pursuant thereto, and, if not defined therein, their common and ordinary meaning. For convenience, some definitions from Title 47 of the U.S. Code are set forth herein and may be revised by the City Attorney to reflect subsequent changes in Federal law without the need for an amendment of this Chapter. For further convenience, the first (1st) letter of terms, phrases, words and abbreviations defined in this Chapter or by Federal law have been capitalized, but an inadvertent failure to capitalize such letter shall not affect meaning.
ACCESS LINES
Means either:
1. 
Type 1: The transmission facilities located between the end user customer's premises network interface device within the City and the telecommunications carrier's local serving facilities (these serving facilities include central office facilities, distribution frame facilities or other similar facilities) that allow delivery of telecommunications services within the City; or
2. 
Type 2: The channel termination points within the City of a non-switched telephone circuit dedicated for use by an end user customer. Interoffice-transport and other transmission facilities which do not terminate at an end user customer's network interface device or channel termination point are not access lines. Residential and business access lines shall be identified by rates charged by the telecommunications carriers.
APPLICANT
The specific person applying for and receiving a permit for facilities work.
APPLICATION
That form which an applicant must use to obtain a permit to conduct facilities work within public rights-of-way.
BOARD OF ALDERMEN
"Board of Aldermen" or "Board" shall mean the Governing Body of the City.
CABLE OPERATOR
Any person or group of persons who:
1. 
Provides cable service over a cable system and directly or through one (1) or more affiliates owns a significant interest in such cable system, or
2. 
Otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
CABLE SERVICE
Means:
1. 
The one-way transmission to subscribers of:
a. 
Video programming, or
b. 
Other programming service; and
2. 
Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
CABLE SYSTEM
A facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:
1. 
A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations;
2. 
A facility that serves subscribers without using any public right-of-way;
3. 
A facility of a common carrier which is subject, in whole or in part, to the provisions of Subchapter II of Chapter 5 of Title 47 of the United Stated Code, except that such facility shall be considered a cable system (other than for purposes of Section 541(c) of Title 47 of the United States Code) to the extent such facility is used in the transmission of video programming directly to subscribers unless the extent of such use is solely to provide interactive on-demand services;
4. 
An open video system that complies with Section 653 of the Telecommunications Act of 1996; or
5. 
Any facilities of any electric utility used solely for operating its electric utility system.
CITY
The City of Rock Hill, Missouri, and its agencies, departments, agents and employees acting within their respective areas of authority.
COMMON CARRIER
Any person engaged as a common carrier for hire in interstate or foreign communications by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this Chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.
CUSTOMER PREMISES EQUIPMENT
Equipment employed on the premises of a person (other than a carrier) to originate, route or terminate telecommunications.
FACILITIES WORK
The installation of new telecommunications facilities or any change, replacement, relocation, removal, alteration or repair of existing telecommunications facilities within the public rights-of-way.
FCC
The Federal Communications Commission, its designee, or any successor governmental entity thereto.
NORMAL BUSINESS HOURS
8:00 A.M. to 5:00 P.M., Monday through Friday.
PERMIT
A permit granted by the City to do facilities work.
PERSON
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, but such term does not include the City.
PSC
The Missouri Public Service Commission.
PUBLIC EDUCATION OR GOVERNMENTAL ACCESS FACILITIES
1. 
Channel capacity designated for public, educational or governmental use; and
2. 
Facilities and equipment for the use of such channel capacity.
PUBLIC RIGHTS-OF-WAY
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, park, parkway, waterway, easement or similar property in which the City now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining telecommunications facilities. No reference herein to "public 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 telecommunications purposes.
RADIO COMMUNICATION
The transmission by radio of writing, signs, signals, pictures and sounds of all kinds, including all instrumentalities, facilities, apparatus and services (among other things, the receipt, forwarding and delivery of communications) incidental to such transmission.
SALE
Any sale, exchange or barter transaction.
STREETS SUPERINTENDENT
The Streets Superintendent or his/her designee.
SUBSCRIBER
Any person who legally receives any telecommunications service and the City in its capacity as a recipient of such service.
TELECOMMUNICATIONS
The transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or control of the information as sent and received.
TELECOMMUNICATIONS CARRIER
Any provider of telecommunications services, except that such term does not include aggregators of telecommunications services.
TELECOMMUNICATIONS EQUIPMENT
Equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades).
TELECOMMUNICATIONS FACILITIES
Any conduit, duct, line, pipe, wire, hose, cable, culvert, tube, pole, receiver, transmitter, satellite dish, micro cell, pico cell, repeater, amplifier or other device, material, apparatus or medium, useable (whether actually used for such purpose or not) for the transmission or distribution of any telecommunications services.
TELECOMMUNICATIONS SERVICE
The offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
VIDEO PROGRAMMING
Programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
WITHIN
In, along, under, over or across public rights-of-way.
[Ord. No. 1361 §1, 10-7-1997]
A. 
Registration Required.
1. 
Any person that constructs, operates, maintains or provides telecommunications services over telecommunications facilities within the public rights-of-way of the City must register hereunder. To be eligible to register hereunder, a person must be a telecommunications carrier with all required State and Federal authority to provide telecommunications services over telecommunications facilities within the public rights-of-way of the City.
2. 
Any person that has a cable franchise from the City under the Cable Communications Regulatory Code need not register hereunder so long as that person does not also meet the criteria of Subsection (A)(1). If such a person must register hereunder, it shall also remain subject to its cable franchise and the Cable Communications Regulatory Code.
3. 
Any person that intends to provide video programming by means of an open video system pursuant to certification approved by the FCC must register hereunder but shall also remain subject to the applicable provisions of the Cable Communications Regulatory Code.
4. 
Any person that has telecommunications facilities or provides telecommunications services over telecommunications facilities within the public rights-of-way of the City as of the effective date of this Chapter must either register within ninety (90) days thereafter or remove such telecommunications facilities. Other persons must register before constructing, operating or maintaining telecommunications facilities or providing telecommunications services over telecommunications facilities within the public rights-of-way of the City.
5. 
Any person that wants to construct, operate or maintain what would otherwise be telecommunications facilities within the public rights-of-way of the City except that such facilities will be reserved exclusively for that person's own use rather than made available to others must first obtain a written license agreement from the City, subject to such terms and conditions as the City may reasonably impose under the circumstances, unless that person is already otherwise registered hereunder or has another form of written agreement with the City in effect that expressly authorizes such activity.
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 any ineligible person shall be void from the date of ineligibility.
C. 
Registration Characteristics.
1. 
A valid registration hereunder authorizes the issuance of specific facilities work permits in accordance with this Chapter. It does not expressly or implicitly authorize facilities work without a 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 telecommunications facilities without a separate agreement with the owners thereof.
2. 
A valid registration hereunder shall not eliminate the need to obtain any 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 Chapter, or for attaching devices to poles or other structures, whether owned by the City or another person.
3. 
A valid registration grants no exclusive or vested rights.
4. 
The right to obtain facilities work permits shall be subordinate to any prior lawful occupancy of the public rights-of-way, and the City reserves the right to reasonably designate where telecommunications facilities are to be placed within the public rights-of-way.
D. 
Registered Person Subject To Other Laws, Police Power.
1. 
A person required to register shall at all times be subject to and shall comply with all applicable Federal, State and local laws, including this Chapter, 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 public rights-of-way and consumer protection.
2. 
No course of dealing between a person required to register hereunder 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.
E. 
Interpretation Of Chapter. The provisions of this Chapter shall be liberally construed to promote the public interest.
F. 
Failure To Register. Any person who constructs, operates, maintains or provides telecommunication services over telecommunications facilities within the public rights-of-way of the City and who has not registered hereunder shall nonetheless be subject to all requirements of this Chapter, including but not limited to its provisions regarding construction and technical standards and rental fees. In its discretion, the City at any time may by ordinance; 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; require such person to remove its telecommunications facilities from the public rights-of-way and restore the affected area to a condition satisfactory to the City within a specific time period; direct municipal personnel to remove the telecommunications facilities from the public 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 take any other action it is entitled to take under applicable law. Additionally, such person shall be subject to the imposition of penalties as provided herein.
G. 
Expense. Any act that a person is or may be required to perform under this Chapter or applicable law shall be performed at the person's expense, without reimbursement by the City, unless expressly provided to the contrary in this Chapter or applicable law.
H. 
Eminent Domain. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the City's power of eminent domain.
I. 
Exclusive Contracts And Anticompetitive Acts Prohibited.
1. 
No person shall enter into or enforce an exclusive contract for the provision of telecommunications 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 telecommunications services in the City, except for such actions as are expressly authorized by law.
[Ord. No. 1361 §1, 10-7-1997]
A. 
Letter Format.
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. It must be accompanied by the required filing fees and contain or be accompanied by all required information. It shall include the name, title, address, telephone number 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. 
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 because of the cost of processing the letter. 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, at a minimum, the following information:
1. 
Name and address of the registering person.
2. 
Explanation of all telecommunications services to be provided by the registering person over telecommunications facilities within the public rights-of-way of the City and an explanation of the registering person's legal qualifications to provide all such telecommunications services, including copies of supporting documentation such as relevant certificates or orders from the FCC and/or PSC, or pertinent rules or Statutes.
3. 
Name and address of any and all other persons that will be providing telecommunications services over the registering person's telecommunications facilities in the City.
4. 
Current certificates of insurance or self-insurance in accordance with this Chapter.
C. 
Notice Of Change. A registered person shall promptly (no less frequently than semi-annually) notify the City of any changes in the information set forth in or accompanying its registration letter. Such change notices shall be submitted and processed in the same manner as an initial registration.
D. 
Filing Fees. A registration letter or change notice shall be accompanied by a filing fee in the amount of twenty-five dollars ($25.00) to cover the City's internal administrative processing costs.
E. 
Registration Index. The City Clerk shall maintain an index of all registered persons and their point(s) of contact.
[Ord. No. 1361 §1, 10-7-1997]
A. 
Construction Procedures.
1. 
All telecommunications facilities within the public rights-of-way shall be constructed, operated, used and maintained subject to the supervision of all of the authorities of the City who have jurisdiction in such mattes and in compliance with all applicable laws, ordinances, departmental rules and regulations.
2. 
All telecommunications facilities within public rights-of-way shall be subject to inspection by the City.
B. 
Permit Requirements.
1. 
Any person desiring to conduct facilities work within the public rights-of-way must first apply for and obtain a permit, in addition to any other building permit, license, easement, franchise or authorization required by law, provided that if such facilities work must be performed on an emergency basis, the person conducting the work may apply for the required permit on the first (1st) business day following the commencement of the facilities work.
2. 
No person may be granted a permit who shall not have registered with the City, except as otherwise provided by ordinance or written contract with the City.
3. 
All applications for permits shall be submitted to the Streets Superintendent. The Streets Superintendent shall design and make available standard forms for such applications, requiring such information as the Streets Superintendent determines in his/her discretion to be necessary, consistent with the provisions of this Chapter, to accomplish the purposes of this Chapter.
4. 
Each such application shall be accompanied by an application fee in the amount of two hundred fifty dollars ($250.00) to cover the cost of processing the application.
5. 
The Streets Superintendent shall review each application for a permit and, upon determining that the applicant has all requisite authority to perform the desired facilities work including full compliance with this Chapter and that the applicant has submitted all necessary information and has paid the application fee, shall issue the permit, except as provided in Subsection (5) hereof. In order to avoid excessive processing and accounting costs to either the City or the applicant, the Streets Superintendent shall have authority to establish procedures for bulk processing of applications and periodic payment of fees.
6. 
It is the intention of the City that disruption of the public rights-of-way should be minimized. Upon receipt of an application for a permit, the Streets Superintendent shall do the following:
a. 
Determine whether any portion of the public rights-of-way will be disrupted by the proposed facilities work and whether the disruption will be more than minor in nature. If the applicant can show the Streets Superintendent's reasonable satisfaction that the facilities work involves any of the following:
(1) 
No or only minor disruption or damage to the public rights-of-way; or
(2) 
Time sensitive maintenance, then the Streets Superintendent shall grant the permit without delay; and
b. 
In circumstances where the Streets Superintendent determines that the public rights-of-way will be disrupted and no exemption under (a) or any other provision of this Section applies, the Streets Superintendent shall, where necessary, schedule and coordinate work to accomplish the goals of this Section. Due regard shall be accorded applicants that are required by any law, rule or regulation to provide service to the area defined in the application. By way of example, the Streets Superintendent may postpone issuance of a permit, give public notice of the application, and attempt to identify whether other persons intend to do facility work in the same area within a reasonable period of time so that all such facility work can be coordinated.
7. 
Each permit shall include projected commencement and termination dates or, if such dates are unknown at the time the permit is issued, a provision requiring the permit holder to provide the Streets Superintendent with reasonable advance notice of such dates once they are determined; identity and length of affected public rights-of-way; number and location of road crossings; information regarding scheduling and coordination of facilities work, if necessary; and proposed location of telecommunications facilities. The Streets Superintendent shall establish procedures allowing applicants to ascertain whether capacity may be available from others along the intended path, including the City.
8. 
The Streets Superintendent shall include in permits such conditions and requirements as are reasonably necessary to protect structures, utility plant and other telecommunications facilities in the public rights-of-way from damage and for the proper restoration of such public rights-of-way, structure, utility plant and telecommunications facilities, and for the protection of the public and continuity of pedestrian and vehicular traffic.
9. 
Facilities work shall be subject to periodic inspection by the City.
10. 
The Streets Superintendent shall have full access to all portions of facilities work and may issue stop work orders and corrective orders to prevent unauthorized work. Such corrective or stop work orders shall state that work not authorized by the 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 may be delivered personally or by certified mail to the address listed on the application for permit or to the person in charge of the construction site at the time of delivery or the registered person's point of contact. Such orders may be enforced by equitable action in the Circuit Court of St. Louis County, Missouri, and in such case the person involved in the facilities work shall be liable for all costs and expenses incurred by the City, including reasonable attorney's fees, in enforcing such orders, in addition to any and all penalties established in this Chapter.
11. 
Applicants may appeal any decision of the Streets Superintendent to the Circuit Court of St. Louis County, Missouri.
12. 
The Streets Superintendent shall maintain indexes of all permits issued both by person and by affected public rights-of-way.
C. 
Construction Standards.
1. 
The construction, operation, use and maintenance of telecommunications facilities within the public rights-of-way shall be in accordance with all applicable Sections of the Occupational Safety and Health Act of 1970, the National Electrical Safety Code, Obstruction Marking and Lighting, Federal Aviation Administration; Construction, Marking and Lighting of Antenna Structures, Federal Communications Commission Rules Part 17; other Federal, State or local laws and regulations that may apply including, without limitation, local zoning and construction 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 telecommunications facilities that could not meet requirements of Federal, State or local law).
2. 
All telecommunications facilities shall be installed and located to cause minimum interference with the rights and convenience of property owners and other users of the public rights-of-way, including the City.
3. 
All telecommunications facilities shall be of good and durable quality.
4. 
Without limiting the foregoing, antennae and their supporting structures (towers) shall be designed in accordance with the Uniform Building Code and Electronics Industry Association RS-22A Specifications, as amended, and shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable, Federal, State or local laws, Codes and regulations, all as hereafter may be amended or adopted.
5. 
Without limiting the foregoing, all telecommunications facilities shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced and properly trained maintenance and construction personnel so as not to endanger any person or property or to unreasonably interfere in any manner with the public rights-of-ways or legal rights of any property owner including the City or unnecessarily hinder or obstruct pedestrian or vehicular traffic.
6. 
All safety practices required by law shall be used during construction, maintenance and repair of telecommunications facilities, including commonly accepted methods and devices to prevent failures and accidents that are likely to cause damage, injury or nuisance to the public.
7. 
Telecommunications facilities shall not be placed where they will interfere with other utility facilities, or obstruct or hinder in any manner the various utilities serving the residents and businesses in the City of their use of any public rights-of-way.
8. 
Any and all public rights-of-way, public property or private property disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or construction of telecommunications facilities shall be repaired or replaced by the owner of such telecommunications facilities within a reasonable time specified by the City.
9. 
A person required to be registered hereunder shall, by a reasonable time specified by the City, protect, support, temporarily disconnect, relocate or remove discrete portions of its telecommunications facilities when required by the City by reason of traffic conditions; public safety; public rights-of-way construction; public rights-of-way maintenance or repair (including resurfacing or widening); change of public 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; public rights-of-way vacation; or for any other purpose where the convenience of the City would be reasonably served thereby; provided however, that the person may abandon any telecommunications facilities in place if approved by the City in writing, and provided further that the person shall not be required to make permanent changes in its telecommunications facilities to accommodate the installation of other telecommunications facilities nor should it be required to make temporary changes solely to disrupt its business or otherwise provide an unfair advantage to a competitor. No action hereunder shall be deemed a taking of property, and the person shall not be entitled to any compensation therefor. No location of any telecommunications facilities within the public rights-of-way shall be a vested interest.
10. 
If any action under the preceding paragraph is reasonably required to accommodate the construction, operation or repair of the telecommunications facilities of another person that is authorized to use the public rights-of-way, a person required to register hereunder shall, after reasonable advance written notice, take action to effect the necessary changes requested. Such person shall be reimbursed by such other person for costs reasonably incurred in taking such action. The Streets Superintendent may resolve disputes as to responsibility for costs associated with the removal, relaying or relocation of telecommunications facilities as among persons authorized to install facilities within the public rights-of-way if the parties are unable to do so themselves, and if the matter is not governed by a valid contract between the parties.
11. 
In the event of an emergency, or where telecommunications facilities create or are contributing to an imminent danger to health, safety or property, the City may remove, relay or relocate the pertinent parts of such telecommunications facilities without prior notice and without charge to the City for restoration and repair.
12. 
A person required to register hereunder shall, on the request of the City or any person authorized by the City, temporarily relocate telecommunications facilities to permit the moving of buildings or oversized vehicles. The expense of such temporary location shall be paid by the person requesting same, and the person relocating telecommunications facilities shall have the authority to require such payment in advance, except in the case where the request is made by the City on its own behalf, in which case no such payment shall be required. A person shall be given not less than forty-eight (48) hours' advance notice to arrange for such temporary changes unless the Streets Superintendent has declared an emergency.
13. 
A person registered hereunder shall have the authority to trim trees that overhang public rights-of-way of the City so as to prevent the branches of such trees from coming in contract with its telecommunications facilities, at its own expense subject to the supervision and direction of the City. Trimming of trees on private property shall require written permission of the property owner. All cut materials shall be properly disposed.
14. 
During installation of telecommunications facilities, existing underground conduits or overhead telecommunications facilities shall be used whenever feasible and permitted by the owner thereof. No one may erect new poles or similar structures within the public rights-of-way without the express written permission of the Streets Superintendent.
15. 
Telecommunications facilities may be constructed overhead where other existing telecommunications facilities are overhead, but where no overhead telecommunications facilities exist all telecommunications facilities shall be moved underground and the cost shall be solely the obligation of the owners. To the extent possible, trenchless technology shall be used. In cases of new construction or property development where telecommunications facilities are to be placed underground, 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 telecommunications facilities. Costs of trenching and easements required to bring telecommunications facilities within the development shall be borne by the developer or property owner; except that if the telecommunications 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 telecommunications facilities.
16. 
The City shall have the right to install and maintain free of charge upon any telecommunications facilities within the public rights-of-way any facilities of its own for its own, non-commercial use that do not unreasonably interfere with the operations of the other telecommunications facilities.
17. 
Any contractor or subcontractor used for work or construction, installation, operation, maintenance or repair of telecommunications facilities must be property 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 registered person would have if the work were performed by it. A registered person must ensure that contractors, subcontractors and all employees who will perform work for it are trained and experienced and shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed.
18. 
Upon failure of a person to commence, pursue to complete any work required by law or by the provisions of this Chapter 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 person shall pay to the City the cost thereof in the itemized amounts reported by the City to the person within thirty (30) days after receipt of such itemized report.
19. 
No person shall make paving cuts or curb cuts except after written permission has been given by the Streets Superintendent, which permission shall not unreasonably be withheld.
20. 
Should the grades or boundaries of the public rights-of-way be changed at any time, a person required to register hereunder shall, if necessary, at its own cost and expense, relocate or change its telecommunications facilitates so as to conform with the new grades or boundaries.
21. 
Any alteration to the existing water mains, sewerage or drainage system or to any City, State or other public structures or facilities in the public rights-of-way required on account of the construction or installation of telecommunications facilities within the public rights-of-way shall be made at the sole cost and expense of the owner of such telecommunications facilities. During any work of constructing, operating or maintaining of telecommunications facilities, the owner shall also, at its own cost and expense, protect any and all existing structures and property belonging to the City and any other person.
D. 
Interference With Public Projects. Nothing in this Chapter 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 perform or carry on any public works or public improvements of any description.
[Ord. No. 1361 §1, 10-7-1997]
A. 
Subject to the provisions herein, the City shall have the right to inspect and copy at any time during normal business hours at a location in the metropolitan St. Louis area, all books and records which are reasonably necessary to monitor compliance with the terms of this Chapter, including but not limited to a full and complete set of plans, records and "as built" maps showing the exact dimensions and location of all telecommunications facilities installed or in use in the City and records showing plans and timetables for any pending construction regarding telecommunications facilities in the City. A person required to register hereunder is responsible for collecting the information and producing it and by registering it affirms that it can and will do so. Such person will make suitable copying equipment available to the City and will bear the cost of such copying.
B. 
A person required to register hereunder shall maintain sufficient financial records governing its operations in the City to document accurate payment of rental fees under Section 630.070 hereof.
C. 
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.
D. 
The City 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 Chapter.
E. 
Voluminous Materials. If any books, records, maps or plans, or other requested documents are too voluminous, or for security reasons cannot be moved, 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 documents or having those documents inspected by its designee(s).
[Ord. No. 1361 §1, 10-7-1997]
A. 
Finding. The City finds that public rights-of-way of the City are valuable public property right acquired and maintained by the City at great expense to taxpayers. The City further finds that the grant of permission to use public rights-of-way is a valuable property right and eliminates the need to invest substantial capital to acquire such property rights or to acquire alternative pathways. Any person that places telecommunications facilities within the public rights-of-way after the effective date of this Chapter, and any person that leaves existing telecommunications facilities within the public rights-of-way more than ninety (90) days after the effective date of this Chapter shall be deemed to have agreed to pay compensation for such use of the public rights-of-way as established by this Chapter.
B. 
Amount. As compensation for use of the public rights-of-way, any person with telecommunications facilities within the public rights-of-way of the City or providing telecommunications services over telecommunications facilities shall pay to the City on a monthly basis rental fees in the amount equal to the greater of a minimum rent of one thousand five hundred dollars ($1,500.00) per month or a total of two dollars two cents ($2.02) per Type 1 residential access line per month plus four dollars fifty cents ($4.50) per Type 1 business access line per month plus four dollars fifty cents ($4.50) per Type 2 access line termination point per month for each access line that a telecommunication carrier uses to provide service to an address within the City which has been activated for use by an end user customer. The number of access lines as of month-end shall be used to calculate payment due the City for the following month. The foregoing per access line rental figures shall be adjusted annually, on the anniversary of passage of this Chapter, by the change in the telephone service component of the Consumer Price Index (CPI-TS) as published by the United States Department of Commerce or its successor agency for the preceding twelve (12) months.
C. 
Not A Tax Or In Lieu Of Any Other Tax Or Fee.
1. 
The rental fees are not a tax, license or fee subject to any requirement of voter approval, but rather are 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. However, to promote economic development, the City hereby grants a tax credit for all rental fees paid to the City hereunder against any local telephone or telecommunications license or franchise tax up to the amount of such tax(es). In no event shall such a credit result in a refund from the City.
D. 
Reports.
1. 
The City shall be furnished at the time of each payment with a statement certified by the payer's Chief Financial Officer or an independent certified public accountant reflecting the calculation of the total amount due for the payment period. Payments shall be made to the City by the last day of each month for the preceding month.
2. 
In the event any rental fee or other payment due 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 owned, 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 Chapter 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 recompute any amounts determined to be payable under this Chapter. Persons required to register 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 630.060(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-eight percent (98%) 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 recomputation results in additional amount to be paid to the City, such amount shall be subject to interest and penalties as specified in Subsection (D)(2) above.
[Ord. No. 1361 §1, 10-7-1997]
A. 
Insurance Required. A person required to register hereunder shall maintain, and by its registration specifically agrees that it will maintain for so long as it has telecommunications facilities within the public rights-of-way of the City, at least the following liability insurance coverage insuring the City and the person: Workers' Compensation and employer liability insurance to meet all requirements of Missouri law and comprehensive general liability insurance with respect to the construction, operation and maintenance of the telecommunications facilities, and the conduct of the person's business in the City, in the minimum amounts of:
1. 
One million dollars ($1,000,000.00) 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.
Provided, the City shall allow companies to self-insure to the extent expressly authorized by State law.
These insurance requirements shall not be construed to limit the liability of a person.
B. 
Qualifications Of Sureties. All insurance policies shall be with sureties qualified to do business in the State of Missouri, with a B+7 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 and documentation of self-insurance rights shall be available for review by the City, and a person shall keep on file with the City current certificates of insurance and self-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 person shall not cancel any required insurance policy without submission of proof that it has obtained alternative insurance which complies with this Chapter.
E. 
Indemnification.
1. 
By its registration, a person agrees that it shall, at its sole costs 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 the construction, maintenance or operation of its telecommunications facilities; copyright infringements or a failure by the person to secure consents from the owners, authorized distributors or licensees of information to be delivered over the telecommunications facilities; or the conduct of the person's business in the City.
2. 
Specifically, but not by way of limitation on the scope of (1) above, by its registration a person agrees that it shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, and in their capacity as such, the officers, agents and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damages arising out of or alleged to arise out of the installation, construction, operation or maintenance of its telecommunications facilities, including but not limited to any claim for interference with other utility facilities and services, invasion of the right of privacy, defamation of any person, or the violation or infringement of any copyright, trademark, trade name, service mark, or patent, or of any other similar right of any other person.
3. 
The foregoing indemnity provisions include, but are not limited to, the City's reasonable attorney's 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. While a person conducts such defense, the City may at its option continue to participate in the defense at its own expense.
4. 
Notwithstanding anything to the contrary contained in this Chapter, the City shall not be so indemnified or reimbursed in relation to any amounts attributable to the City's own negligence, willful misconduct, or intentional or criminal acts.
5. 
These indemnity provisions shall survive any termination of registration.
[Ord. No. 1361 §1, 10-7-1997]
A. 
Performance Bond.
1. 
Prior to any facility work within the public rights-of-way, a person shall establish in the City's favor a performance bond to ensure faithful performance of the construction or other work. The amount of such performance bond shall be equal to ten percent (10%) of the total estimated cost of the work.
2. 
In the event a person subject to such a performance bond fails to complete the facility work within the public rights-of-way in a safe, timely and competent manner, 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 person, or the cost of completing work within the public rights-of-way, plus a reasonable allowance for attorney's fees, up to the full amount of the bond.
3. 
Upon satisfactory completion of facility work within the public rights-of-way the City shall return the bond.
4. 
The performance bond shall be issued by a surety with a B+7 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."
B. 
Termination Of Registration.
1. 
The City shall have the right to terminate a registration for a substantial and ongoing failure to comply with this Chapter or for defrauding or attempting to defraud the City. To invoke the provisions of this Section, the City 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 Board of Aldermen, the City may give written notice to the person of its decision to commence a proceeding to consider terminating the person's registration, stating its reasons.
2. 
Prior to terminating a registration, the Board of Aldermen shall hold a public hearing, after giving at least fifteen (15) calendar days' notice by posting and publication, at which time the person and the public shall be given an opportunity to be heard. Following the public hearing, the Board of Aldermen may determine whether to terminate the registration based on the information presented at the hearing and other information of record. If the Board of Aldermen determines to terminate a registration, it shall make such decision by ordinance setting forth the reasons for its decision. The Board of Aldermen 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 through the contact point.
3. 
If the Board of Aldermen terminates a registration or if for any reason a person abandons its telecommunications facilities or terminates its registration after notice and reasonable opportunity to be heard, the following procedures and rights are effective:
a. 
The City may require the person to remove its telecommunications facilities from the public rights-of-way at the person's expense. If the person fails to do so within a reasonable period of time, the City may have the removal done at the person's expense. In removing its telecommunications facilities, the person shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as prevailed prior to the person's removal of its telecommunications facilities. The City shall inspect and approve the condition of the public rights-of-way after removal. The insurance requirements provided herein shall continue in full force and effect during the period of removal and until full compliance by the person with the terms and conditions of this paragraph of this Chapter. In the event of a failure by the person to complete any such work or any other work required by the City within the time as may be established and to the reasonable satisfaction of the City, the City may cause such work to be done and the person shall reimburse the City the reasonable cost thereof within thirty (30) days after receipt of an itemized list of such costs.
b. 
Alternatively, the City may decide that the ownership of all portions of the affected telecommunications facilities in public rights-of-way shall revert to the City and the City may sell, assign or transfer all or part thereof.
4. 
Once a registration has been terminated by the City, the person may not register again except upon approval by ordinance from the Board of Aldermen, 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 Chapter or defraud the City.
C. 
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.
D. 
Penalties. For violation of provisions of this Chapter, subject to judicial procedures, penalties shall be chargeable to a person as follows:
1. 
For failure to register or to obtain required permits, or any other material violations for which actual damages may not be ascertainable: Five hundred dollars ($500.00) per day for each violation for each day the violation continues.
2. 
For minor violations up to one hundred dollars ($100.00) per day for each violation for each day the violation continues.
[Ord. No. 1361 §1, 10-7-1997]
A. 
Captions. The captions to Sections throughout this Chapter are intended solely to facilitate reading and reference to the Section and provisions of this Chapter. Such captions shall not affect the meaning or interpretation of this Chapter.
B. 
No Recourse Against The City. Without limiting such immunities as the City or other persons may have under applicable law, person required to register hereunder shall have no 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 Chapter or because of the enforcement of this Chapter or the City's exercise of its authority pursuant to this Chapter, or other applicable law, unless such recourse is expressly authorized by Statute, this Chapter or other ordinance.
C. 
Rights And Remedies.
1. 
The rights and remedies reserved to the City by this Chapter 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 Chapter.
2. 
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this Chapter.
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 persons shall be relieved of its obligation to comply with any of the provisions of this Chapter 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 Chapter. In the event the City successfully prosecutes any action regarding a violation of this Chapter, in addition to all other remedies it shall recover its reasonable attorney's fees.
D. 
Force Majeure. A person shall not be deemed in violation of this Chapter 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 take 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, public rights-of-way, public property or private property.
E. 
Public Emergency. In the event of a public emergency or disaster as determined by the City acting through such officials as may be available given the emergency conditions, a person required to register hereunder immediately shall make telecommunications 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, a person 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 telecommunications facilities, employees and property to the person promptly after the emergency or disaster has ended.
F. 
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter or payment is required under this Chapter, 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 which continue on a daily basis.
G. 
Severability. If any term, condition or provision of this Chapter 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.
[Ord. No. 1468 §1, 9-3-2002]
This Article shall be known and may be cited as the "Rights-of-Way Usage Code".
[Ord. No. 1468 §1, 9-3-2002]
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.
ANTENNA
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.
ANTENNA FEE
A compensation fee approved by the Board of Aldermen 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.
APPLICANT
The person applying for and receiving a ROW permit for ROW work.
APPLICATION
That form which an applicant must use to obtain a ROW permit to conduct ROW work.
BOARD OF ALDERMEN OR BOARD
The Governing Body of the City.
CITY
The City of Rock Hill, Missouri, and its agencies, departments, agents and employees acting within their respective areas of authority.
CITY FACILITIES
Any facilities, street light poles, lighting fixtures, electroliers or other structures or equipment located within the rights-of-way and owned by the City.
CITY MANAGER
The City Administrator of the City of Rock Hill, Missouri, or such other person designated by the Board of Aldermen.
DEGRADATION
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).
DEGRADATION FEE
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.
DIRECTOR
The City's Public Works Director or such other person designated by the City Manager to administer and enforce this Code.
EMERGENCY RIGHTS-OF-WAY (OR "ROW") WORK
Includes, but is not limited to, ROW work made necessary by exigent circumstances to repair, control, stabilize, rectify or correct the following:
1. 
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;
2. 
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
3. 
Any occurrence involving a facility that a reasonable person would conclude under the circumstances that immediate and undelayed action was necessary and warranted.
FACILITIES
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.
GOVERNMENTAL ENTITY
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.
LINEAR FOOT FEE
A compensation fee approved by the Board of Aldermen 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.
PERSON
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.
PERSON(S) HAVING FACILITIES WITHIN THE RIGHTS-OF-WAY
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.
RIGHTS-OF-WAY OR ROW
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 property 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:
1. 
The City's proprietary property such as City-owned or operated buildings, parks, street lights or other similar property,
2. 
Airwaves used for cellular, non-wire telecommunications or broadcast services,
3. 
Easements obtained by ROW users,
4. 
Railroad rights-of-way or ground used or acquired for railroads, or
5. 
Facilities owned and used by the City for the transmission of one (1) or more services pursuant to the City Charter.
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 service purposes.
RIGHTS-OF-WAY (OR "ROW") PERMIT
A permit granted by the City to a ROW user for ROW work.
RIGHTS-OF-WAY (OR "ROW") USER
A person performing ROW work within the rights-of-way. A ROW user shall not include ordinary vehicular or pedestrian use.
RIGHTS-OF-WAY (OR "ROW") WORK
Action by a ROW user to:
1. 
Install, change, replace, relocate, remove, maintain or repair facilities within the rights-of-way, or
2. 
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.
SERVICE
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.
WIRELESS TRANSMISSION PROVIDER
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.
WITHIN
In, along, under, over or across rights-of-way.
[Ord. No. 1468 §1, 9-3-2002]
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.
2. 
Governmental entities having facilities within the ROW need not register hereunder, but such entities shall be subject to Sections 630.540 and 630.550 of this Code and such other Sections or provisions as may be appropriate to their presence in the ROW.
[Ord. No. 1468 §1, 9-3-2002]
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 630.530(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. 1468 §1, 9-3-2002]
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/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 Section 630.540(B)(4) hereof.
(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:
(a) 
The applicant has permission from such person to install the facility,
(b) 
The person is not in default of any franchise, license or other agreement with the City, and
(c) 
The person is not in substantial violation of any provision of this Code.
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 Board of Aldermen and established in the City's pertinent schedule of fees, to cover the cost of processing the application;
b. 
Any applicable degradation fee established by the Board of Aldermen 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.
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 of a completed application. Unless the application is denied pursuant to paragraph (7) hereof, the Director shall issue a ROW permit upon determining that the applicant:
a. 
Has submitted all necessary information,
b. 
Has paid the appropriate fees, and
c. 
Is in full compliance with this Code and all other City ordinances. In order to avoid excessive processing and accounting costs to either the City or the applicant, the Director shall have authority to establish procedures for bulk processing of applications and periodic payment of fees.
2. 
It is the intention of the City that interference with or disruption of any or all of 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 Code. When reasonable and necessary to accomplish such purposes, the Director may require as alternatives to the ROW work proposed by the applicant either less disruptive methods for the ROW work or different locations for facilities, provided that any required alternative location shall not increase installation expense by more than ten percent (10%) of the applicant's costs for the ROW work as proposed and shall not result in a decline of service quality, and provided further that any alternative requirement shall be competitively neutral and non-discriminatory. The Director shall provide justification to the applicant that the required alternative meets the standards set forth in this paragraph.
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 paragraph (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 630.540(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 applicant to attempt to find suitable alternatives, but such alternatives may exceed the cost increase limitation established by Section 630.540(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:
(1) 
Such denial does not fall within the exclusive authority of the Missouri Public Service Commission,
(2) 
Such denial does not interfere with a ROW user's right of eminent domain of private property, and
(3) 
Such denial is imposed on a competitively neutral and non-discriminatory basis.
9. 
For the purposes of Section 630.540(B)(7), 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 630.580(H) hereof.
[Ord. No. 1468 §1, 9-3-2002]
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 paragraphs (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 paragraph 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 630.540(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.
4. 
A ROW user shall not be relieved of the obligation to complete the necessary right-of-way restoration and maintenance because of payment of a degradation fee or the existence of a performance bond pursuant to Subsection (I) hereof.
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 630.550(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 paragraph 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. 1468 §1, 9-3-2002]
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. 1468 §1, 9-3-2002]
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.
B. 
Payment To City.
1. 
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.
2. 
If a person having facilities within the ROW has or is permitted to install separate facilities within the ROW, then for the purpose of rental fees such separate facilities shall be treated as discrete facilities, each of which shall be subject to the compensation requirements of this Section. The term "separate facilities" means any existing or new facilities under common ownership or control that occupy different cross-sectional areas within the same linear portion of the ROW. Separate facilities include any such facilities that require distinct and separate ROW access for purposes of installation, change, replacement, relocation, removal, maintenance or repair.
C. 
Not A Tax Or In Lieu Of Any Other Tax Or Fee — Credit For 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. 
To promote economic development, any person obligated to pay rental fees shall be granted a credit for all sums paid to the City by such person for applicable business license fees or gross receipts taxes up to the amount of the rental fees. In no event shall such a credit result in a refund from the City.
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 (1st) 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 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 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 recompute 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 630.560(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 recomputation 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.
2. 
Governmental entities having facilities within the ROW shall not be liable for rental fees, but such entities shall be subject to Sections 630.540 and 630.550 of this Code and such other Sections or provisions as may be appropriate to their presence in the ROW.
[Ord. No. 1468 §1, 9-3-2002]
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: Worker's 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.
These insurance requirements shall not be construed to limit the liability of any person.
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 630.580(A) through 630.580(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:
a. 
Any ROW work, including, but not limited to, the construction, maintenance, repair or operation of facilities,
b. 
Failure to secure consents from landowners, or
c. 
Any actions taken or omissions made by the person pursuant to the authority of this Code.
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:
a. 
Attributable to the City's own negligence, willful misconduct, intentional or criminal acts, or
b. 
Attributable to the City acting in a proprietary capacity to deliver service(s) within the City.
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)0 days, or by both such fine and imprisonment. Each day the violation continues may be charged as a separate offense.
[Ord. No. 1468 §1, 9-3-2002]
A. 
Dispute Resolution By The Director. 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 Code. 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 Code, provided, however, that this review shall not apply to matters being prosecuted in court pursuant to Section 630.550(A)(2)(c) or Section 630.580(H) hereof. Any final determination of the Director shall be subject to review as provided herein.
B. 
Appeals To The City Manager. Any person aggrieved by a final determination of the Director may appeal in writing to the City Manager within five (5) business days thereof. The appeal shall assert specific grounds for review, and the City Manager shall render a decision on the appeal within fifteen (15) business days of its receipt affirming, reversing or modifying the determination of the Director. The City Manager may extend this time period for the purpose of any investigation or hearing deemed necessary. A decision affirming the Director's determination shall be in writing and supported by findings establishing the reasonableness of the decision.
C. 
Chapter 536 Review. Any person aggrieved by the final determination of the City Manager 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 City Manager's final determination.
D. 
Arbitration And Mediation.
1. 
On agreement of the parties and in addition to any other remedies, any final decision of the City Manager may be submitted to mediation or binding arbitration.
2. 
In the event of mediation, the City Manager and the applicant or ROW user shall agree to a mediator. The costs and fees of the mediator shall be borne equally by the parties and each party shall pay its own costs, disbursements and attorney fees.
3. 
In the event of arbitration, the City Manager and the applicant or ROW user shall agree to an arbitrator. The costs and fees of a single arbitrator shall be borne equally by the parties. If the parties cannot agree on an arbitrator, the matter shall be resolved by a three (3) person arbitration panel consisting of one (1) arbitrator selected by the City Manager, one (1) arbitrator selected by the applicant or ROW user and one (1) person selected by the other two (2) arbitrators, in which case each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the expense of the third (3rd) arbitrator and of the arbitration. Each party shall also pay its own costs, disbursements and attorney fees.
[Ord. No. 1468 §1, 9-3-2002]
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 Anticompetitive 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 Subsection 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.