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.
Means either:
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
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.
The specific person applying for and receiving a permit for
facilities work.
That form which an applicant must use to obtain a permit
to conduct facilities work within public rights-of-way.
"Board of Aldermen" or "Board" shall mean the Governing Body of the City.
Any person or group of persons who:
Means:
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:
A facility that serves only to retransmit the television signals
of one (1) or more television broadcast stations;
A facility that serves subscribers without using any public
right-of-way;
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;
An open video system that complies with Section 653 of the Telecommunications
Act of 1996; or
Any facilities of any electric utility used solely for operating
its electric utility system.
The City of Rock Hill, Missouri, and its agencies, departments,
agents and employees acting within their respective areas of authority.
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.
Equipment employed on the premises of a person (other than
a carrier) to originate, route or terminate telecommunications.
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.
The Federal Communications Commission, its designee, or any
successor governmental entity thereto.
8:00 A.M. to 5:00 P.M., Monday through Friday.
A permit granted by the City to do facilities work.
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.
The Missouri Public Service Commission.
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.
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.
Any sale, exchange or barter transaction.
The Streets Superintendent or his/her designee.
Any person who legally receives any telecommunications service
and the City in its capacity as a recipient of such service.
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.
Any provider of telecommunications services, except that
such term does not include aggregators of telecommunications services.
Equipment, other than customer premises equipment, used by
a carrier to provide telecommunications services, and includes software
integral to such equipment (including upgrades).
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.
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.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
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:
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.
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Provided, the City shall allow companies to self-insure to the
extent expressly authorized by State law.
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These insurance requirements shall not be construed to limit
the liability of a person.
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B.
Qualifications Of Sureties. All insurance policies shall
be with sureties qualified to do business in the State of Missouri,
with 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.
A facility consisting of any device, array or antenna of
any kind including, but not limited to, whip antennas, panel antennas,
and satellite antennas that transmits or receives electromagnetic
signals to deliver microwave, cellular, broadcast or other non-wire
voice, data or video communications service through the airwaves above
the rights-of-way and which attach to either pre-existing or subsequently
approved facilities or structures.
A compensation fee approved by the 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.
The person applying for and receiving a ROW permit for ROW
work.
That form which an applicant must use to obtain a ROW permit
to conduct ROW work.
The Governing Body of the City.
The City of Rock Hill, Missouri, and its agencies, departments,
agents and employees acting within their respective areas of authority.
Any facilities, street light poles, lighting fixtures, electroliers
or other structures or equipment located within the rights-of-way
and owned by the City.
The City Administrator of the City of Rock Hill, Missouri,
or such other person designated by the Board of Aldermen.
The accelerated depreciation of a portion of the rights-of-way
caused by excavation in or disturbance of any paved portion of the
rights-of-way resulting in the need to repair or maintain such portion
of the rights-of-way earlier than would be required if the excavation
or disturbance had not occurred (excluding concrete slabs or curbs
which shall be replaced rather than restored).
The fee charged by the City to recover the costs associated
with a decrease in the useful life of any paved rights-of-way caused
by excavation or other disturbance. The degradation fee shall not
apply to concrete slabs or curbs which shall be replaced rather than
restored.
The City's Public Works Director or such other person designated
by the City Manager to administer and enforce this Code.
Includes, but is not limited to, ROW work made necessary
by exigent circumstances to repair, control, stabilize, rectify or
correct the following:
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility that prevents or significantly jeopardizes
the ability of a ROW user to provide service;
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility that results or could result in danger
to the public or a material delay or hindrance to the provision of
service if the outage, cut, rupture, leak or other such failure is
not immediately repaired, controlled, stabilized, rectified or corrected;
or
Any occurrence involving a facility that a reasonable person
would conclude under the circumstances that immediate and undelayed
action was necessary and warranted.
A network or system, or any part thereof, used for providing
or delivering a service and consisting of one (1) or more lines, pipes,
irrigation systems, wires, cables, fibers, conduit facilities, poles,
vaults, pedestals, boxes, appliances, antennas, transmitters, towers,
gates, meters, appurtenances or other equipment.
Any County, Township, City, Town, Village, school district,
library district, road district, drainage or levee district, sewer
district, water district, fire district or other municipal corporation,
quasi-municipal corporation or political subdivision of the State
of Missouri or any other State, any agency or instrumentality of the
State of Missouri or any other State or the United States, and any
cooperative district allowed by law acting in a governmental rather
than a proprietary capacity.
A compensation fee approved by the 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.
An individual, partnership, limited liability corporation
or partnership, association, joint stock company, trust, organization,
corporation, or other entity, or any lawful successor thereto or transferee
thereof.
Any person having a possessory interest in, with the right
of physical access (as permitted by this Code) to, facilities located
within the rights-of-way.
Unless otherwise restricted herein, the surface, the air
space above the surface and the area below the surface of any public
street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge,
tunnel, parkway, waterway, public easement or sidewalk in which the
City now or hereafter holds any 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:
The City's proprietary property such as City-owned or operated
buildings, parks, street lights or other similar property,
Airwaves used for cellular, non-wire telecommunications or broadcast
services,
Easements obtained by ROW users,
Railroad rights-of-way or ground used or acquired for railroads,
or
Facilities owned and used by the City for the transmission of
one (1) or more services pursuant to the City Charter.
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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.
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A permit granted by the City to a ROW user for ROW work.
A person performing ROW work within the rights-of-way. A
ROW user shall not include ordinary vehicular or pedestrian use.
Action by a ROW user to:
Install, change, replace, relocate, remove, maintain or repair
facilities within the rights-of-way, or
To conduct work of any kind within or adjacent to the rights-of-way
that results in an excavation, obstruction, disruption, damage or
physical invasion or impact of any kind to the rights-of-way or the
use thereof.
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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.
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Providing or delivering an economic good or an article of
commerce, including, but not limited to, gas, telephone, cable television,
Internet, open video systems, alarm systems, steam, electricity, water,
telegraph, data transmission, petroleum pipelines, sanitary or stormwater
sewerage or any similar or related service, to one (1) or more persons
located within or outside of the City using facilities within the
rights-of-way.
A person having facilities within the rights-of-way, which
such facilities consist primarily of antennas, transmitters, towers,
or other appliances or equipment used to deliver a cellular, broadcast,
data transmission or other non-wire communications service through
the airwaves above the rights-of-way and which attach to either pre-existing
or subsequently approved facilities or structures.
In, along, under, over or across rights-of-way.
[Ord. No. 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.
[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:
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:
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.
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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).
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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.
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.
[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.
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These insurance requirements shall not be construed to limit
the liability of any person.
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B.
Qualifications Of Sureties. All insurance policies shall
be with sureties qualified to do business in the State of Missouri
with an "A" or better rating of insurance by Best's Key Rating Guide,
Property/Casualty Edition and in a form approved by the City.
C.
Policies Available For Review. All insurance policies shall
be available for review by the City and a ROW user having facilities
within the rights-of-way shall keep on file with the City current
certificates of insurance.
D.
Additional Insureds — Prior Notice Of Policy Cancellation. All general liability insurance policies shall name the City, its
officers, boards, board members, commissions, commissioners, agents
and employees as additional insureds and shall further provide that
any cancellation or reduction in coverage shall not be effective unless
thirty (30) days' prior written notice thereof has been given to the
City Clerk. A ROW user shall not cancel any required insurance policy
without submission of proof that it has obtained alternative insurance
that complies with this Code.
E.
Exemption From Insurance Requirements. The City Manager may exempt in writing from the requirements of Sections 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:
2.
The
foregoing indemnity provisions include, but are not limited to, the
City's reasonable attorneys' fees incurred in defending against any
such claim, suit or proceeding prior to the person assuming such defense.
The City shall notify a person of claims and suits as soon as practicable,
but failure to give such notice shall not relieve a person of its
obligations hereunder. Once a person assumes such defense, the City
may at its option continue to participate in the defense at its own
expense.
3.
Notwithstanding
anything to the contrary contained in this Code, the City shall not
be so indemnified or reimbursed in relation to any amounts:
G.
Relation To Insurance And Indemnity Requirements. Recovery
by the City of any amounts under insurance, a performance bond or
otherwise does not limit a person's duty to indemnify the City in
any way; nor shall such recovery relieve a person of amounts owed
to the City or in any respect prevent the City from exercising any
other right or remedy it may have.
H.
Penalties. Any person violating any provision of this Code
shall, upon conviction by the City's Municipal Court, be punished
by a fine not to exceed one thousand dollars ($1,000.00) or by imprisonment
not to exceed ninety (90)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.
