[Ord. No. 604 §1(1), 5-8-2000]
This Chapter shall be known and may be cited as the "Rights-of-Way
Usage Code".
[Ord. No. 604 §1(2), Glossary, 5-8-2000]
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 in the glossary to this ordinance,
which glossary may be revised by the City Attorney to reflect subsequent
changes in Federal law without the need for an amendment of this ordinance.
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.
The specific Person apply 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.
The Governing Body of the City.
Person or group of Persons:
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 States 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 Oakland, Missouri, and its agencies, departments,
agents and employees acting within their respective areas of authority.
The City Engineer or his/her designee.
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 Federal Communications Commission, its designee or any
successor governmental entity thereto.
Any conduit, valves, meters, duct, line, pipe, wire, hose,
manhole, pullbox, fiber optic cable, cable, culvert, pole, receiver,
transmitter, satellite dish, micro cell, Pico cell, repeater, amplifier
or other device, material, apparatus or medium usable (whether actually
used for such purpose or not) for the transmission or distribution
of any service or commodity installed below or above ground within
the Public Rights-of-Way of the City, whether used privately or made
available to the public.
The installation of any item whatsoever, including, but not
limited to Telecommunications Facilities or any change, replacement,
relocation, removal, alteration or repair of any existing item or
Telecommunications Facilities within the Public Rights-of-Way.
Any and all cash, credits, property or other consideration
of any kind or nature received directly or indirectly arising from,
attributable to or in any way derived from the retail operation of
Facilities or the provision of Retail Services within the City. "Gross Revenues" include, by way of illustration and not
limitation, monthly fees for any service; installation, disconnection,
reconnection and change-in-service fee; rents; late fees and processing
fees; fees or payments received for carriage of information; revenues
from rentals or sales of equipment and advertising revenues. "Gross Revenues" shall not include any rents hereunder or
any taxes on services which are imposed directly on any Subscriber
by the United States, the State of Missouri, the City or other governmental
unit and which are collected on behalf of said governmental unit. "Gross Revenues" shall not include wholesale revenues (i.e.,
revenues from sales for resale of services) or any proceeds from the
transfer of Facilities to another registered service provider. For
Telecommunications Carriers, the term "Gross Revenues" shall not include revenues for goods and services which are not
provided over Telecommunications Facilities, even if such goods and
services are ordered using the Facilities. In the event a person receives
revenues for operations within and without the City of which no specific
portion can be attributed to operations in the City, "Gross
Revenues" with respect to such revenues shall mean the portion
thereof derived by multiplying such revenues by a fraction, the numerator
of which is the number of Subscribers in the City and the denominator
of which is the total number of Subscribers in the area generating
such revenues.
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 or 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 purposes of installing and maintaining
any item including, but not limited to, 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.
The offering of any service for a fee directly to the public
or to classes of users as to be effectively available directly to
the public, regardless of the facilities used.
Any sale, exchange or barter transaction.
Any Person who legally receives any retail 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).
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 any Public Way.
[Ord. No. 604 §1(3), 5-8-2000]
A.
Registration Required.
1.
Except as otherwise provided in this paragraph, no Person may construct,
operate, maintain or provide any service over Within the Public Rights-of-Way
of the City without registering hereunder. To be eligible to register
hereunder, a Person who provides Telecommunications Services must
be a Telecommunications Carrier with all required State and Federal
authority to provide the Telecommunications Services to be provided
in the City or over 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 Section (A)(1).
If such a Person must register hereunder, it shall also remain subject
to its Cable Franchise and the Cable Communications Regulatory Code
except to the extent, if any, it conflicts with the provisions herein.
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 except to the
extent, if any, it conflicts with the provisions herein.
4.
Any Person that provides Telecommunications Services within the City
or has Facilities or provides Telecommunications Services over 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 Facilities. Other Persons must register before providing
Telecommunications Services within the City or constructing, operating
or maintaining Facilities or providing Telecommunications Services
over Facilities Within the Public Rights-of-Way of the City.
5.
Any Person that wants to construct, operate or maintain what would
otherwise be 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 an 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 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 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 other 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 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 provides Retail Services
within the City or who constructs, operates, maintains or provides
Retail Services over 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 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 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. 604 §1(4), 5-8-2000]
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 Retail Services to be provided by the registering
Person in the City or over Facilities Within the Public Rights-of-Way
of the City and an explanation of the registering Person's legal qualifications
to provide all such Retail 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
Retail Services over the registering Person's Facilities in the City.
4.
Current certificates of 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 fifty dollars ($50.00)
to cover the City's internal administrative costs.
E.
Registration Index. The City Clerk shall maintain an index
of all registered Persons and their point(s) of contact.
[Ord. No. 604 §1(5), 5-8-2000]
A.
Construction Procedures.
1.
All 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 matters
and in compliance with all applicable laws, ordinances, departmental
rules and regulations.
2.
All Telecommunication 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 City Engineer.
The City Engineer shall design and make available standard forms for
such Applications, requiring such information as the City Engineer
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 twenty-five dollars ($25.00) ("base fee") plus fifteen
dollars ($15.00) per one hundred (100) linear feet of Public Rights-of-Way
involved and an additional fifteen dollars ($15.00) per road crossing
("variable fee") to cover the cost of processing the Application.
5.
The City Engineer 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 Section 535.050 hereof entitled "Construction Provisions". In order to avoid excessive processing and accounting costs to either the City or the Applicant, the City Engineer 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 City Engineer shall do the following:
a.
Determine whether the proposed Facilities Work will disrupt any portion
of the Public Rights-of-Way and whether the disruption will be more
than minor in nature. If the Applicant can show to the City Engineer's
reasonable satisfaction that the Facilities Work involves any of the
following:
b.
For circumstances where the City Engineer determines that the Public
Rights-of-Way will be disrupted and no exemption under (a) or any
other provision of this Section applies, the City Engineer 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 City Engineer
may postpone issuance of a Permit, give public notice of the Application
and attempt to identify whether other Person(s) intend to do Facilities
Work in the same area within a reasonable period of time so that all
such Facilities 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 City Engineer
with reasonable advance notice of such dates once they are determined;
length of affected Public Rights-of-Way; number of road crossings;
information regarding scheduling and coordination of Facilities Work,
if necessary; and location of Facilities. The City Engineer shall
establish procedures allowing Applicants to ascertain whether capacity
may be available from others along the intended path, including the
City.
8.
The City Engineer shall include in Permits such conditions and requirements
as are reasonably necessary to protect structures and other Facilities
in the Public Rights-of-Way from damage and for the proper restoration
of such Public Rights-of-Way, structures and Facilities and for the
protection of the public and the continuity of pedestrian and vehicular
traffic.
9.
Facilities Work shall be subject to periodic inspection by the City.
10.
The City Engineer 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 final decision of the City Engineer to
the Board of Adjustment.
12.
The City Engineer 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 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 Facilities that could not meet requirements
of Federal, State or local law).
2.
All 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 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 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 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.
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 Facilities shall
be repaired or replaced by the owner thereof 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 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 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 Facilities to accommodate
the installation of other 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 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 Facilities
of another Person that is authorized to use the Public Rights-of-Way,
a Person required to registered 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 Board of Aldermen
may resolve disputes as to responsibility for costs associated with
the removal, relaying or relocation of 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 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 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 Facilities
to permit the moving of buildings or oversized vehicles. The expense
of such temporary relocation shall be paid by the Person requesting
same and the Person relocating 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 Board of Aldermen 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 contact with its 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 Facilities, existing underground conduits
or overhead 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 Board of Aldermen.
15.
Facilities may be constructed overhead where other existing Telecommunications
Facilities are overhead, but where no overhead Facilities exist, all
Facilities shall be constructed underground. At the Board of Aldermen's
direction, all Facilities shall be moved underground and the cost
shall be solely the obligation of the owners. In cases of new construction
or property development where 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 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.
16.
The City shall have the right to install and maintain free of charge
upon any Facilities Within Public Rights-of-Way any Facilities of
its own that do not unreasonably interfere with the operations of
the other Facilities.
17.
Any contractor or subcontractor used for work or construction, installation,
operation, maintenance or repair of Facilities 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 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 or 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 City, 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 Facilities 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 Facilities Within the Public Rights-of-Way shall
be made at the sole cost and expense of the owner of such Facilities.
During any work of constructing, operating or maintaining of 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. 604 §1(6), 5-8-2000]
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 location of all Facilities installed
or in use in the City and records showing plans and timetables for
any pending construction regarding 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 determine Gross Revenues and to otherwise document accurate payment of rental fees under Section 535.070 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
Board of Aldermen 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. 604 §1(7), 5-8-2000]
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.
Any Person that places Facilities Within the Public Rights-of-Way
after the effective date of this Chapter and any Person that leaves
existing 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.
Payment To City. As compensation for use of the Public Rights-of-Way,
any Person with Facilities Within the Public Rights-of-Way of the
City or providing Telecommunications Services over such Facilities
shall pay to the City on a quarterly basis rental fees in the amount
of five percent (5%) of the Person's Gross Revenues or one hundred
fifty dollars ($150.00) per quarter (whichever is greater).
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.
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 Chapter or the first
(1st) day in which a Person places Telecommunications Facilities Within
the Public Rights-of-Way or provides Telecommunications Services over
such Facilities. The City shall be furnished at the time of each payment
with a statement certified by the payor's chief financial officer
or an independent certified public accountant reflecting the total
amount of Gross Revenues for the payment period. Payments shall be
made to the City no later than thirty (30) 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 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 535.060. 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. 604 §1(8), 5-8-2000]
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 Facilities Within the Public Rights-of-Way
of the City at least the following liability insurance coverage insuring
the City and the Person: Worker's 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 Facilities and the conduct of the Person'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.
Three million dollars ($3,000,00.00) for all other types of liability.
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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 shall
be available for review by the City and a Person 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 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 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 the construction,
maintenance or operation of its 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
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 Facilities
including, but not limited to, any claim for invasion of the right
of privacy, defamation of any Person or the violation or infringement
of any copyright, trade mark, 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 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.
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,
intentional or criminal acts.
[Ord. No. 755 §3, 5-12-2008]
A business license tax of two percent (2%) of the gross annual
revenue produced by the billboard was approved by the qualified voters
of Oakland, Missouri, at the primary election held in the City on
Tuesday, the fifth (5th) day of August, 2008, to be effective for
the license year ending in 2009.
[Ord. No. 604 §1(9), 5-8-2000]
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
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 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 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 canceled 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 Board of Aldermen 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 Board of
Aldermen 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 City
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 Facilities or terminates its registration
after notice and reasonable opportunity to be heard, the following
procedures and rights are effective:
a.
The Board of Aldermen may require the Person to remove its 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 Board of Aldermen
may have the removal done at the Person's expense. In removing its
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 Facilities. The City shall inspect and approve the condition of
the Public Rights-of-Way after removal. The liability, indemnity and
insurance as 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 Board of Aldermen may decide that the ownership
of all portions of the affected 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:
Up to one thousand dollars ($1,000.00) 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. 604 §1(10), 5-8-2000]
A.
Captions. The captions to Sections throughout this Chapter
are intended solely to facilitate reading and reference to the Sections
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 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 Person 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.
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 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, 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 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 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 Saturdays, Sundays 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.
