[Ord. No. 2028 §1, 1-15-2008]
(a)
To the extent permitted by the 2007 Video Services Providers Act,
the City of Eureka hereby ratifies all existing agreements, franchises
and ordinances regulating cable television operators and other video
service providers, including the imposition of a franchise fee of
five percent (5%) imposed on the gross revenues of all such providers
and further declares that such agreements, franchises and ordinances
shall continue in full force and effect until expiration as provided
therein, or until pre-empted by the issuance of video service authorizations
by the Missouri Public Service Commission or otherwise by law, but
only to the extent of said pre-emption.
[Ord. No. 2028 §2, 1-15-2008]
(a)
FRANCHISE AREA
GROSS REVENUES
(1)
(2)
(3)
(4)
(5)
(6)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
HOUSEHOLD
LOW INCOME HOUSEHOLD
PERSON
SUBSCRIBER
VIDEO SERVICE
VIDEO SERVICE AUTHORIZATION
VIDEO SERVICE NETWORK
VIDEO SERVICE PROVIDER OR PROVIDER
VIDEO SERVICE PROVIDER FEE
Definitions. The following terms shall have the
following meanings unless otherwise defined by context:
The total geographic area of the City authorized to be served
by an incumbent cable television operator or incumbent local exchange
carrier or affiliate thereof.
The total amounts billed to subscribers or received from
advertisers for the provision of video services within the City, including:
Recurring charges for video service,
Event-based charges for video service, including, but not limited
to, pay-per-view and video-on-demand charges,
Rental of set top boxes and other video service equipment,
Service charges related to the provision of video service, including,
but not limited to, activation, installation, repair and maintenance
charges,
Administrative charges related to the provision of video service,
including, but not limited to, service order and service termination
charges, and
A pro rata portion of all revenue derived, less refunds, rebates
or discounts, by a video service provider for advertising over the
video service network to subscribers, where the numerator is the number
of subscribers within the City and the denominator is the total number
of subscribers reached by such advertising; but gross revenues do
not include:
Discounts, refunds and other price adjustments that reduce the
amount of compensation received by a video service provider,
Uncollectibles,
Late payment fees,
Amounts billed to subscribers to recover taxes, fees or surcharges
imposed on subscribers or video service providers in connection with
the provision of video services, including the video service provider
fee authorized herein,
Fees or other contributions for PEG or I-Net support, or
Charges for services other than video service that are aggregated
or bundled with amounts billed to subscribers, provided the video
service provider can reasonably identify such charges on books and
records kept in the regular course of business or by other reasonable
means. Except with respect to the exclusion of the video service provider
fee, gross revenues shall be computed in accordance with generally
accepted accounting principles.
An apartment, house, mobile home or any other structure or
part of a structure intended for residential occupancy as separate
living quarters.
A household with an average annual household income of less
than thirty-five thousand dollars ($35,000.00) as determined by the
most recent decennial census.
An individual, partnership, association, organization, corporation,
trust or government entity.
Any person who receives video services in the franchise area.
The provision of video programming provided through wireline
facilities, without regard to delivery technology, including Internet
protocol technology, whether provided as part of a tier, on demand
or a per-channel basis, including cable service as defined by 47 U.S.C.
Section 522(6), but excluding video programming provided by a commercial
mobile service provider defined in 47 U.S.C. Section 332(d) or any
video programming provided solely as part of and via a service that
enables users to access content, information, electronic mail or other
services offered over the public Internet.
The right of a video service provider or an incumbent cable
operator, that secures permission from the Missouri Public Service
Commission pursuant to Sections 67.2675 to 67.2714 to offer video
service to subscribers.
Wireline facilities or any component thereof that delivers
video service, without regard to delivery technology, including Internet
protocol technology or any successor technology. The term "video service
network" shall include cable television systems.
Any person authorized to distribute video service through
a video service network pursuant to a video service authorization.
The fee imposed under Section 23-211(c) hereof.
(b)
General Regulations.
(1)
A video service provider shall provide written notice to the
City at least ten (10) days before commencing video service within
the City. Such notice shall also include:
(a)
The name, address and legal status of the provider;
(b)
The 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 provider so as to make contact possible at
any time (i.e., twenty-four (24) hours per day, seven (7) days per
week); and
(c)
A copy of the provider's video service authorization issued
by the Missouri Public Service Commission.
(3)
A video service provider shall not deny access to service to
any group of potential residential subscribers because of the race
or income of the residents in the area in which the group resides.
A video service provider shall be governed in this respect by Section
67.2707, RSMo. The City may file a complaint in a court of competent
jurisdiction alleging a germane violation of this Subsection, which
complaint shall be acted upon in accordance with Section 67.2711,
RSMo.
(4)
A video service provider shall comply with all Federal Communications
Commission requirements involving the distribution and notification
of emergency messages over the emergency alert system applicable to
cable operators. Any video service provider other than an incumbent
cable operator serving a majority of the residents within a political
subdivision shall comply with this Section by December 31, 2007.
(5)
A video service provider 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
("claims") for damages or equitable relief arising out of:
(a)
The construction, maintenance, repair or operation of its video
services network,
(b)
Copyright infringements, and
(c)
Failure to secure consents from the owners, authorized distributors
or licenses or programs to be delivered by the video service network.
Such indemnification shall include, but is not limited to, the City's
reasonable attorney's fees incurred in defending against any such
claim prior to the video service provider assuming such defense. The
City shall notify the provider of a claim within seven (7) business
days of its actual knowledge of the existence of such claim. Once
the provider assumes the defense of the claim, the City may at its
option continue to participate in the defense at its own expense.
This indemnification obligation shall not apply to any claim related
to the provision of public, educational or governmental channels or
programming or to emergency interrupt service announcements.
(c)
Video Service Provider Fee.
(1)
Each video service provider shall pay to the City a video service
provider fee in the amount of five percent (5%) of the provider's
gross revenues on or before the last day of the month following the
end of each calendar quarter. The City may adjust the video service
provider fee as permitted in Section 67.2689, RSMo.
(2)
A video service provider may identify and pass through on a
proportionate basis the video service provider fee as a separate line
item on subscribers' bills.
(3)
The City, not more than once per calendar year and at its own
cost, may audit the gross revenues of any video service provider as
provided in Section 67.2691, RSMo. A video service provider shall
make available for inspection all records pertaining to gross revenues
at the location where such records are kept in the normal course of
business.
(d)
Customer
Service Regulations.
(1)
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
SERVICE INTERRUPTION
For purposes of this Section, the following terms shall mean:
Those hours during which most similar businesses in the community
are open to serve customers. In all cases the term normal business
hours must include some evening hours at least one (1) night per week
or some weekend hours.
Those service conditions which are within the control of
the video service provider. Those conditions which are not within
the control of the video service provider include, but are not limited
to, natural disasters, civil disturbances, power outages, telephone
network outages and severe or unusual weather conditions. Those conditions
which are ordinarily within the control of the video service provider
include, but are not limited to, special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods and
maintenance or upgrade of the video system.
The loss of picture or sound on one (1) or more video channels.
(2)
All video service providers shall adopt and abide by the following
minimum customer service requirements.
(a)
Video service providers shall maintain a local, toll-free or
collect call telephone access line which may be available to subscribers
twenty-four (24) hours a day, seven (7) days a week.
(b)
Video service providers shall have trained company representatives
available to respond to customer telephone inquiries during normal
business hours. After normal business hours, the access line may be
answered by a service or an automated response system, including an
answering machine. Inquiries received after normal business hours
shall be responded to, by a trained company representative, on the
next business day.
(c)
Under normal operating conditions, telephone answer time by
a customer representative, including wait time, shall not exceed thirty
(30) seconds when the connection is made. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds. These
standards shall be met no less than ninety percent (90%) of the time
under normal operating conditions, measured on a quarterly basis.
(d)
Under normal operating conditions, the customer will receive
a busy signal less than three percent (3%) of the time.
(e)
Customer service centers and bill payment locations shall be
open at least during normal business hours and shall be conveniently
located.
(f)
Under normal operating conditions, each of the following standards
shall be met no less than ninety-five percent (95%) of the time measured
on a quarterly basis:
(i)
Standard installations shall be performed within
seven (7) business days after an order has been placed. "Standard"
installations are those that are located up to one hundred twenty-five
(125) feet from the existing distribution system.
(ii)
Excluding conditions beyond the control of the
operator, the video service provider shall begin working on "service
interruptions" promptly and in no event later than twenty-four (24)
hours after the interruption becomes known. The video service provider
must begin actions to correct other service problems the next business
day after notification of the service problem.
(iii)
The "appointment window" alternatives for installations,
service calls and other installation activities will be either a specific
time or, at a maximum, a four (4) hour time block during normal business
hours. The operator may schedule service calls and other installation
activities outside of normal business hours for the express convenience
of the customer.
(iv)
A video service provider shall not cancel an appointment
with a customer after the close of business on the business day prior
to the scheduled appointment.
(v)
If a video service provider's representative is
running late for an appointment with a customer and will not be able
to keep the appointment as scheduled, the customer must be contacted.
The appointment shall be rescheduled, as necessary, at a time convenient
for the customer.
(h)
Credits for service shall be issued no later than the customer's
next billing cycle following the determination that a credit is warranted.
(i)
Video service providers shall not disclose the name or address
of a subscriber for commercial gain to be used in mailing lists or
for other commercial purposes not reasonably related to the conduct
of the businesses of the video service provider or its affiliates,
as required under 47 U.S.C. Section 551, including all notice requirements.
Video service providers shall provide an address and telephone number
for a local subscriber to use without toll charge to prevent disclosure
of the subscriber's name or address.
(3)
As required by Section 67.2692, RSMo., this Section 23-211(d) shall be enforced only as follows:
(a)
Each video service provider shall implement an informal process
for handling inquiries from the City and customers concerning billing
issues, service issues and other complaints. If an issue is not resolved
through this informal process, the City may request a confidential
non-binding mediation with the video service provider, with the costs
of such mediation to be shared equally between the City and the video
service provider.
(b)
In the case of repeated, willful and material violations of
the provisions of this Section by a video service provider, the City
may file a complaint on behalf of a resident harmed by such violations
with Missouri's Administrative Hearing Commission seeking an order
revoking the video service provider's Public Service Commission authorization.
The City or video service provider may appeal any determination made
by the Administrative Hearing Commission under this Section to a court
of competent jurisdiction, which shall have the power to review the
decision de novo. The City shall not file a complaint seeking revocation
unless the video service provider has been given sixty (60) days'
notice to cure alleged breaches but has failed to do so.
(e)
Public, Educational and Government Access Programming.
(1)
Each video service provider shall designate the same number
of channels for non-commercial public, educational or governmental
("PEG") use as required of the incumbent cable television franchisee
as of August 28, 2007.
(2)
Any PEG channel that is not substantially utilized by the City
may be reclaimed and programmed by the video service provider at the
provider's discretion. If the City finds and certifies that a channel
that has been reclaimed by a video service provider will be substantially
utilized, the video service provider shall restore the reclaimed channel
within one hundred twenty (120) days. A PEG channel shall be considered
"substantially utilized" when forty (40) hours per week are locally
programmed on that channel for at least three (3) consecutive months.
In determining whether a PEG channel is substantially utilized, a
program may be counted not more than four (4) times during a calendar
week.
(3)
The operation of any PEG access channel and the production of
any programming that appears on each such channel shall be the sole
responsibility of the City or its duly appointed agent receiving the
benefit of such channel and the video service provider shall bear
only the responsibility for the transmission of the programming on
each such channel to subscribers. The City must deliver and submit
to the video service provider all transmissions of PEG content and
programming in a manner or form that is capable of being accepted
and transmitted by such video service provider holder over its network
without further alteration or change in the content or transmission
signal. Such content and programming must be compatible with the technology
or protocol utilized by the video service provider to deliver its
video services. The video service provider shall cooperate with the
City to allow the City to achieve such compatibility.
(4)
The City shall make the programming of any PEG access channel
available to all video service providers in a non-discriminatory manner.
Each video service provider shall be responsible for providing the
connectivity to the City's or its duly appointed agent's PEG access
channel distribution points existing as of August 27, 2007. Where
technically necessary and feasible, video service providers shall
use reasonable effort and shall negotiate in good faith to interconnect
their video service networks on mutually acceptable rates, terms and
conditions for the purpose of transmitting PEG programming. A video
service provider shall have no obligation to provide such interconnection
to a new video service provider at more than one (1) point per headend,
regardless of the number of political subdivisions served by such
headend. The video service provider requesting interconnection shall
be responsible for any costs associated with such interconnection,
including signal transmission from the origination point to the point
of interconnection. Interconnection may be accomplished by direct
cable microwave link, satellite or other reasonable method of connection
acceptable to the person providing the interconnection.
(5)
The franchise obligation of an incumbent cable operator to provide
monetary and other support for PEG access facilities existing on August
27, 2007 shall continue until the date of franchise expiration (ignoring
any termination by notice of issuance of a video service authorization)
or January 1, 2012, whichever is earlier. Any other video service
provider shall have the same obligation to support PEG access facilities
as the incumbent cable operator, but if there is more than one (1)
incumbent, then the incumbent with the most subscribers as of August
27, 2007. Such obligation shall be prorated, depending on the nature
of the obligation, as provided in Section 67.2703.8, RSMo. The City
shall notify each video service provider of the amount of such fee
on an annual basis, beginning one (1) year after issuance of the video
service authorization.
(6)
A video service provider may identify and pass through as a
separate line item on subscribers' bills the value of monetary and
other PEG access support on a proportionate basis.
[Ord. No. 2028 §3, 1-15-2008]
(a)
CITY ADMINISTRATOR
CITY FACILITIES
DIRECTOR
EMERGENCY RIGHTS-OF-WAY (OR "ROW") WORK
FACILITIES
PERSON
PERSON(S) HAVING FACILITIES WITHIN THE RIGHTS-OF-WAY
RIGHTS-OF-WAY OR ROW
(1)
(2)
(3)
(4)
(5)
RIGHTS-OF-WAY (OR "ROW") PERMIT
RIGHTS-OF-WAY (OR "ROW") USER
RIGHTS-OF-WAY (OR "ROW") WORK
(1)
(2)
SERVICE
WITHIN
Definitions. The following terms shall have the
following meanings unless otherwise defined by context:
The City Administrator or such other person designated by the City to hear appeals as provided in Section 23-212(e) hereof.
Any facilities located within the public rights-of-way and
owned by the City.
The City's Public Works Director or such other person designated
to administer and enforce this Article.
Includes, but is not limited to, ROW work made necessary
by exigent circumstances to repair, control, stabilize, rectify or
correct an unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility when such failure results or could result
in danger to the public or a material delay or hindrance to the provision
of service.
A network or system or any part thereof used for providing
or delivering a service and consisting of one (1) or more lines, pipes,
wires, cables, fibers, conduit facilities, cabinets, poles, vaults,
pedestals, boxes, appliances, antennas, transmitters, radios, towers,
gates, meters, appurtenances or other equipment.
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 ownership or control of facilities located
within the rights-of-way.
Unless otherwise restricted herein, the surface, air space
above the surface and the area below the surface of any public street,
highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel,
parkway, waterway, public easement or sidewalk in which the City now
or hereafter holds any interest, which, consistent with the purposes
for which it was dedicated, may be used for the purpose of installing
and maintaining facilities. "Rights-of-way" shall not include:
City facilities or the City's property other than ROW, such
as City-owned or operated buildings, parks or other similar property,
Airwaves used for cellular, non-wire telecommunications or broadcast
services,
Easements obtained by ROW users on private property,
Railroad rights-of-way or ground used or acquired for railroads,
or
Facilities owned and used by the City for the transmission of
one (1) or more services. No reference herein to "rights-of-way" shall
be deemed to be a representation or guarantee by the City that its
interest or other right to control the use of such property is sufficient
to permit its use for the delivery of service.
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 located within the rights-of-way, or
To conduct work of any kind within or adjacent to the rights-of-way
that results in an excavation, obstruction, disruption, damage or
physical invasion or impact of any kind to the rights-of-way or the
use thereof. The routine inspection of facilities shall not be considered
ROW work unless the inspection requires the conduct of any of the
activities or actions noted herein.
Providing or delivering an economic good or an article of
commerce, including, but not limited to gas, telephone, cable television,
Internet, open video systems, video services, alarm systems, steam,
electricity, water, telegraph, data transmission, petroleum pipelines,
sanitary or storm water sewerage or any similar or related service,
to one (1) or more persons located within or outside of the City by
use of facilities located within the rights-of-way.
In, along, under, over or across rights-of-way.
(b)
ROW Permits.
(1)
Application requirements.
(a)
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.
(b)
An application for a ROW permit 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 determine in his or her discretion to be necessary and
consistent with the provisions of this Article and to accomplish the
purposes of this Article. Each application shall at a minimum contain
the following information for the proposed ROW work, unless otherwise
waived by the Director:
(i)
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;
(ii)
If different from the applicant, the name, address
and telephone number of the person on whose behalf the proposed work
is to be performed;
(iii)
A description of the proposed work, including
a conceptual master plan and engineering site plan or other technical
drawing or depiction showing the nature, dimensions, location and
description 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,
if applicable;
(iv)
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;
(v)
Copies of any required Certificates of Insurance
or performance and maintenance bonds.
(c)
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.
(d)
Each such application shall be accompanied by the following
payments:
(i)
An application fee approved by the City to cover
the cost of processing the application;
(ii)
Any other amounts due to the City from the applicant
including, but not limited to, prior delinquent fees, costs and any
loss, damage or expense suffered by the City because of the applicant's
prior work in the rights-of-way or for any emergency actions taken
by the City, but the Director may modify this requirement to the extent
he determines any such fees to be in good faith dispute.
(e)
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, least
intrusive, most aesthetic and least obtrusive use of the rights-of-way.
(f)
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.
(2)
Application review and determination.
(a)
The Director shall promptly review each completed application
for a ROW permit and shall grant or deny all such applications as
provided herein within thirty-one (31) days of receipt thereof. Unless
the application is denied, the Director shall issue a ROW permit upon
determining that the applicant:
(i)
Has submitted all necessary information,
(ii)
Has paid the appropriate fees, and
(iii)
Is in full compliance with this Article and all
other City ordinances. The Director may establish procedures for bulk
processing of applications and periodic payment of fees to avoid excessive
processing and accounting costs.
(b)
It is the intention of the City that interference with, damage
to, excavation or disruption of or the placement of facilities within
the City's rights-of-way should be minimized and limited in scope
to the extent allowed by law to achieve the purposes of this Article.
When reasonable and necessary to accomplish such purposes, the Director
may require as alternatives to the proposed ROW work either less disruptive
methods or different locations for facilities, provided that any required
alternative:
(i)
Shall not increase expenses by more than ten percent
(10%) of the applicant's costs for the work as proposed,
(ii)
Shall not result in a decline of service quality,
and
(iii)
Shall be competitively neutral and non-discriminatory.
The Director shall justify to the applicant that the required alternative
is reasonable and necessary.
(c)
Upon receipt of an application, the Director shall determine
whether any portion of the rights-of-way will be affected by the proposed
work and whether the interference, disruption or placement of facilities
will be more than minor in nature. In determining whether the proposed
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, the use thereof and neighboring properties.
(i)
If the applicant can show to the Director's reasonable
satisfaction that the work involves no interference, disruption, excavation
or damage to or only minor interference with the rights-of-way or
that the work does not involve the placement of facilities or involves
time-sensitive maintenance, then the Director shall promptly grant
the ROW permit.
(ii)
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 (c)(1) or any other provision of this Article
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 Article, 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.
(d)
Each ROW permit issued by the Director shall include:
(i)
Projected commencement and termination dates or,
if such dates are unknown at the time the permit is issued, a provision
requiring the ROW user to provide the Director with reasonable advance
notice of such dates once they are determined;
(ii)
Length of affected rights-of-way, number of road
crossings and identification and description of any pavement or curb
cuts included in the work;
(iii)
Information regarding scheduling and coordination
of work, if necessary;
(iv)
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;
(v)
An acknowledgment and representation by the applicant
to comply with the terms and conditions of the ROW permit and this
Article; and
(vi)
Such conditions and requirements as are deemed
reasonably necessary by the Director to protect structures and other
facilities in the rights-of-way from damage, to restore such rights-of-way
and any structures or facilities, to ensure the reasonable continuity
and sight lines of pedestrian and vehicular traffic and to protect
property values, the aesthetics of adjoining properties and neighborhoods
and the public health, safety and welfare.
(e)
The Director may deny an application, if denial is deemed to
be in the public interest, for the following reasons:
(i)
Delinquent fees, costs or expenses owed by the
applicant;
(ii)
Failure to provide information required by the
application or this Article;
(iii)
The applicant being in violation of the provisions
of this Article or other pertinent and applicable City ordinances;
(iv)
Failure to return the ROW to its previous condition
under previously issued ROW permits or after prior excavations by
the applicant;
(v)
For reasons of environmental, historic or cultural
sensitivity as defined by applicable Federal, State or local law;
(vi)
For the applicant's refusal to comply with alternative
ROW work methods, locations or other reasonable conditions required
by the Director; and
(vii)
For any other reason to protect the public health,
safety and welfare, provided that such denial does not fall within
the exclusive authority of the Missouri Public Service Commission
or interfere with a ROW user's right of eminent domain of private
property and, provided further, that such denial is imposed on a competitively
neutral and non-discriminatory basis.
(3)
Permit revocation and ordinance violations.
(a)
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 permit or this Article.
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:
(i)
A material violation of a provision of the ROW
permit or this Article;
(ii)
An evasion or attempt to evade any material provision
of the ROW permit or this Article or the perpetration or attempt to
perpetrate any fraud or deceit upon the City or its residents;
(iii)
A material misrepresentation of fact in the ROW
permit application;
(iv)
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
(v)
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 ordinances, industry construction
standards, this Article or any other applicable ordinances, provided
that City standards are no more stringent than those of a national
safety ordinance.
(b)
Any breach of the terms and conditions of a ROW permit shall
also be deemed a violation of this Article and in lieu of revocation,
the Director may initiate prosecution of the ROW user for such violation.
(c)
Work In the
ROW.
(1)
Jurisdiction, inspection and stop work orders.
(a)
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 and
the ROW permit.
(b)
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 or substandard work as established in Subsection
(c)(7) hereof. Such orders:
(i)
May be delivered personally or by certified mail
to the address(es) listed on the application for the ROW permit or
the person in charge of the construction site at the time of delivery;
(ii)
Shall state that substandard work or work not
authorized by the ROW permit is being carried out, summarize the substandard
or 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
(iii)
May be enforced by equitable action in the Circuit
Court of St. Louis County, Missouri, and in such case the person responsible
for the substandard or unauthorized 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 Article.
(2)
Underground facilities.
(a)
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, unless the City's authority
has been pre-empted by State or Federal law. Such permission may be
granted through a ROW permit when other similar facilities exist above
ground or when 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.
(b)
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.
(c)
In the case of new construction or property development, the
developer or property owner shall give reasonable written notice,
to other potential ROW users as directed by the City, 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.
(3)
Above ground facilities.
(a)
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:
(i)
Ornamental or similar specially-designed street
lights,
(ii)
Designated historic areas,
(iii)
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,
(iv)
Facilities, equipment, structures or locations
that in the reasonable judgment of the Director are incompatible with
the proposed facilities or would be rendered unsafe or unstable by
the installation, and
(v)
Facilities, equipment, structures or locations
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.
(b)
Above ground 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 facilities. Facilities
shall be located in such a manner as to reduce or eliminate their
visibility. A sight proof landscape screen may be required for any
authorized above ground facility taller than three (3) feet in height
or covering in excess of four (4) square feet in size. Such screening
shall be sufficient to reasonably conceal the facility. A landscape
plan identifying the size and species of landscaping materials shall
be approved by the Director prior to installation of any facility
requiring landscape screening. The person having facilities within
the ROW shall be responsible for the installation, repair or replacement
of screening materials. Alternative screening or concealment may be
approved by the Director to the extent it meets or exceeds the purposes
of these requirements.
(c)
Above ground facilities shall be constructed and maintained
in such a manner so as not to emit any unnecessary or intrusive noise
and shall comply with all other applicable regulations and standards
established by the City or State or Federal law.
(d)
If the application of this Subsection excludes locations for above ground 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 23-212(b)(2)(b) and the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
(4)
Relocation of equipment and facilities.
(a)
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, re-lay 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 person having facilities within the ROW prior to taking
such action, but the inability to do so shall not prevent same. Thereafter,
the City shall notify the person having facilities within the ROW
as soon as practicable.
(b)
At the City's direction, all facilities shall be moved underground
and the cost shall be solely the obligation of the person having facilities
within the ROW (or as otherwise allowed or required by law).
(c)
At the City's direction, a person having facilities within the
ROW shall protect, support, disconnect, relocate or remove facilities,
at its own cost and expense, when necessary to accommodate the construction,
improvement, expansion, relocation or maintenance of streets or other
public works or to protect the ROW or the public health, safety or
welfare.
(d)
A person having facilities within the ROW shall, on the reasonable
request of any person and after reasonable advance written notice,
protect, support, disconnect, relocate or remove facilities to accommodate
such person and the actual cost, reasonably incurred, of such actions
shall be paid by the person requesting such action. The person having
facilities within the ROW taking such action may require such payment
in advance.
(e)
Rather than relocate facilities as requested or directed, a
ROW user may abandon the facilities if approved by the City as provided
in Subsection (c)(6) of this Section.
(f)
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.
(5)
Property repair and alterations.
(a)
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 any damaged property.
Such repair or replacement shall be completed within a reasonable
time specified by the Director and to the Director's satisfaction.
(b)
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.
(6)
Removal, abandonment, transfer and relocation of facilities.
(a)
If a person having facilities within the ROW:
(i)
Installs the facilities within the ROW without
having complied with the requirements of this Article, or
(ii)
Abandons the facilities, the City may require
the removal of the facilities at the expense of the person having
facilities within the ROW or require the transfer of the facilities
as provided herein.
(b)
If the City requires removal of the facilities, the person shall
obtain a ROW permit and shall abide by all requirements of this Article.
The liability, indemnity, insurance and bonding requirements required
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 the ROW permit and the requirements
of this Article.
(c)
If the person fails to remove the facilities after having been
directed to do so, the City may, to the extent permitted by law, have
the removal done at the person's expense. Alternatively, the City
may permit the abandonment, without removal, of the facilities if
the Director determines that abandonment is not likely to prevent
or significantly impair the future use, repair, excavation, maintenance
or construction of the ROW.
(d)
If the person fails to remove the facilities after having been
directed to do so, the City may, to the extent permitted by law, decide
that the ownership of the facilities should be transferred to the
City or to such person as directed by the City. In either case, the
owner of the facilities shall submit a written instrument, satisfactory
in form to the 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 so transferred.
(e)
The City shall not remove or seek to possess or transfer the
facilities until thirty (30) days have passed following written notice
by the Director to the person having facilities within the ROW of
the City's intent to so act. The Director may choose not to act on
good cause shown by the person having facilities within the ROW.
(7)
Standards for ROW work.
(a)
Except for emergency ROW work as provided in Section 23-212 (b)(1)(a), 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.
(b)
If at any time it appears that the duration or scope of the
ROW work is or will become materially different 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 Article.
(c)
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.
(d)
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.
(e)
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.
(f)
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.
(g)
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 ordinances and laws and accepted industry
practices, all as hereafter may be amended or adopted. In the event
of a conflict among ordinances and standards, the most stringent ordinance
or standard shall apply (except insofar as that ordinance or standard,
if followed, would result in facilities that could not meet requirements
of Federal, State or local law).
(h)
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 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.
(i)
All facilities shall be of good and durable quality.
(j)
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.
(k)
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.
(l)
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
Article. A ROW user:
(i)
Must ensure that contractors, subcontractors and
all employees performing ROW work are trained and experienced,
(ii)
Shall be responsible for ensuring that all work
is performed consistent with the ROW permit and applicable law,
(iii)
Shall be fully responsible for all acts or omissions
of contractors or subcontractors,
(iv)
Shall be responsible for promptly correcting acts
or omissions by any contractor or subcontractor, and
(v)
Shall implement a quality control program to ensure
that the work is properly performed.
(m)
A ROW user shall not place or cause to be placed any sort of
signs, advertisements or other extraneous markings on the facilities
or in the ROW, whether relating to the ROW user or any other person,
except such necessary minimal markings approved by the City as necessary
to identify the facilities for service, repair, maintenance or emergency
purposes or as may be otherwise required to be affixed by applicable
law or regulation.
(n)
Unless otherwise approved in writing by the City, a ROW user
shall not remove, cut or damage any trees or their roots within the
ROW.
(o)
Street crossings will be bored at the direction of the Director.
(8)
Restoring and maintaining the rights-of-way.
(a)
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, screening, landscaping or vegetation,
and shall comply with other 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.
(b)
It shall be the duty of any person making an excavation in the
ROW to backfill such excavations and restore the surface in accordance
with the City's minimum prescribed standards for such surfaces or
the following standards as determined by the Director.
(i)
If the excavations are made in the improved portion
of the ROW, twelve (12) inches of granular backfill will be placed
over exposed facilities and controlled low strength material (CLSM)
will fill the hole within eight (8) inches of the finished surface
for concrete pavements. There will be a plastic membrane placed between
the rock base and the CLSM to prevent the material from bleeding into
the rock base. The remaining eight (8) inches will be restored by
placing a twenty-eight (28) day minimum strength, four thousand five
hundred (4,500) psi concrete mix.
(ii)
If the excavations are made in the improved portion
of an asphalt or combination street, twelve (12) inches of granular
backfill will be placed over exposed facilities and CLSM will fill
the hole within nine (9) inches of the finished surface. There will
be a plastic membrane placed between the rock base and the CLSM to
prevent the material from bleeding into the rock base. The remaining
nine (9) inches will be restored by placing a six (6) inch thick,
twenty-eight (28) day minimum strength, four thousand five hundred
(4,500) psi concrete mix under a three (3) inch asphalt concrete lift
of type C mix to meet existing grades.
(iii)
Construction of asphalt driveway entrances in
residential ROW will be constructed of six (6) inches of compacted
rock base and three (3) inches of type C asphalt concrete mix. Construction
of asphalt driveway entrances in commercial ROW will be constructed
of four (4) inches of compacted rock base, seven and one-half (7.5)
inches of type X and three (3) inches of type C asphalt concrete mix.
Concrete driveway approaches will consist of a four (4) inch compacted
rock base and be a minimum of six (6) inches thick in residential
ROW and eight (8) inches thick in commercial ROW.
(c)
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.
(d)
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. 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.
(e)
A ROW user shall not be relieved of the obligation to complete
the necessary right-of-way restoration and maintenance because of
the existence of any performance bond required by this Article.
(9)
Any person performing ROW work shall provide written notice
to all property owners within one hundred eighty-five (185) feet of
the site at least forty-eight (48) hours prior to any installation,
replacement or expansion of its facilities. Notice shall include a
reasonably detailed description of work to be done, the location of
work and the time and duration of the work.
(d)
Bonds —
Insurance — Surety — Indemnification — Penalties.
(1)
Performance and maintenance bonds.
(a)
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. 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 State and local regulations.
(b)
If a ROW user fails to complete the ROW work in a safe, timely
and competent manner or if the completed restorative work fails without
remediation 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.
(c)
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 release the bond.
(d)
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's 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."
(e)
In lieu of the bond required herein, the ROW user may establish
in the City's favor such other security as the Director 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).
(2)
Insurance.
(a)
All ROW users shall maintain, for the duration of any ROW work
and, when applicable, for as long as the ROW user has facilities within
the rights-of-way, at least the following liability insurance coverage:
Workers' Compensation and employer liability insurance to meet all
requirements of Missouri law and commercial general liability insurance
with respect to the construction, operation and maintenance of the
facilities and the conduct of the ROW user's business in the City,
in the minimum amounts of:
(i)
Two million dollars ($2,000,000.00) for property
damage resulting from any one (1) accident;
(ii)
Five millions dollars ($5,000,000.00) for personal
bodily injury or death resulting from any one (1) accident; and
(iii)
Two millions dollars ($2,000,000.00) for all
other types of liability. These insurance requirements shall not be
construed to limit the liability of any person or to impose any liability
on the City or to waive any sovereign immunity.
(b)
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)
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)
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
Director. A ROW user shall not cancel any required insurance policy
without submission of proof that it has obtained alternative insurance
that complies with this Article.
(e)
The Director may exempt in writing from these insurance requirements
any self-insured ROW user, provided that the ROW user demonstrates
to the Director'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 Article.
The Director may require a security fund or letter of credit as a
condition to a self-insured's exemption. 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 applicable regulatory law.
(3)
Indemnification.
(a)
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:
(i)
Any ROW work, including, but not limited to, the
construction, maintenance, repair or replacement of the facilities,
(ii)
The operation of its facilities,
(iii)
Failure to secure consents from landowners, or
(iv)
Any actions taken or omissions made by the person
pursuant to the authority of this Article.
(b)
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 within
seven (7) business days of its actual knowledge of the existence of
such claim, suit or proceeding. Once a person assumes such defense,
the City may at its option continue to participate in the defense
at its own expense.
(c)
Notwithstanding anything to the contrary contained in this Article,
the City shall not be so indemnified or reimbursed in relation to
any amounts attributable to:
(d)
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.
(4)
Penalties. Any person violating any provision
of this Article shall, upon conviction by the City's Municipal Court,
be punished by a fine not to exceed one thousand dollars ($1,000.00)
or by imprisonment not to exceed ninety (90) days or by both such
fine and imprisonment. Each day the violation continues may be charged
as a separate offense.
(e)
Dispute Resolutions, Appeals And Arbitration.
(1)
The Director shall make a final determination as to any matter
concerning the grant, denial or revocation of a ROW permit as provided
in this Article. On the request of an applicant or a ROW user and
within a reasonable period of time, the Director also shall make a
final determination as to any other issue relating to the use of the
ROW, the imposition of any fee or the application of any provision
of this Article, provided however, that this review shall not apply
to matters being prosecuted in the Municipal Court. Any final determination
of the Director shall be subject to review as provided herein.
(2)
Any person aggrieved by a final determination of the Director
may appeal in writing to the City Administrator within five (5) business
days thereof. The appeal shall assert specific grounds for review
and the City Administrator shall render a decision on the appeal within
fifteen (15) business days of receipt affirming, reversing or modifying
the determination of the Director. The City Administrator 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.
(3)
Any person aggrieved by the final determination of the City
Administrator 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 Administrator's final determination.
(4)
Arbitration and mediation.
(a)
On agreement of the parties and in addition to any other remedies,
any final decision of the City Administrator may be submitted to mediation
or binding arbitration.
(b)
In the event of mediation, the City Administrator 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.
(c)
In the event of arbitration, the City Administrator and the
applicant or ROW user shall agree to a single arbitrator. The costs
and fees of the 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 Administrator, 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.
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(f)
Miscellaneous.
(1)
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 automated formats that are compatible
with City systems, as determined by the Director, or in hard copy
otherwise.
(2)
Upon failure of a ROW user to commence, pursue or complete any
ROW work required by law or by the provisions of this Article 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.
(3)
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.
(4)
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.
(5)
Nothing in this Article 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. 2028 §4, 1-15-2008]
(a)
DIRECTOR
FACILITIES
FACILITIES PERMIT
PERSON
SERVICE
Definitions. The following terms shall have the
following meanings unless otherwise defined by context:
The City's Public Works Director or such other person designated
to administer and enforce this Article.
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, cabinets,
poles, vaults, pedestals, boxes, appliances, antennas, transmitters,
radios, towers, gates, meters, appurtenances or other equipment.
A permit granted by the City for placement of facilities
on private property.
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.
Providing or delivering an economic good or an article of
commerce, including, but not limited to gas, telephone, cable television,
Internet, open video systems, video services, alarm systems, steam,
electricity, water, telegraph, data transmission, petroleum pipelines,
sanitary or storm water sewerage or any similar or related service,
to one (1) or more persons located within or outside of the City using
facilities located within the City.
(b)
Facilities
Permits.
(1)
Any person desiring to place facilities on private property
must first apply for and obtain a facilities permit, in addition to
any other building permit, license, easement, franchise or authorization
required by law. The Director may design and make available standard
forms for such applications, requiring such information as allowed
by law and as the Director determines in his or her discretion to
be necessary and consistent with the provisions of this Article and
to accomplish the purposes of this Article. Each application shall
at a minimum contain the following information, unless otherwise waived
by the Director:
(a)
The name of the person on whose behalf the facilities are to
be installed and 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 facilities;
(b)
A description of the proposed work, including a site plan and
such plans or technical drawings or depictions showing the nature,
dimensions and description of the facilities, their location and their
proximity to other facilities that may be affected by their installation.
(2)
Each such application shall be accompanied by an application
fee approved by the City to cover the cost of processing the application.
(3)
Application review and determination.
(a)
The Director shall promptly review each application and shall
grant or deny the application within thirty-one (31) days. Unless
the application is denied pursuant to Subparagraph (d) hereof, the
Director shall issue a facilities permit upon determining that the
applicant:
(i)
Has submitted all necessary information,
(ii)
Has paid the appropriate fees, and
(iii)
Is in full compliance with this Article and all
other City ordinances. The Director may establish procedures for bulk
processing of applications and periodic payment of fees to avoid excessive
processing and accounting costs.
(b)
It is the intention of the City that proposed facilities will
not impair public safety, harm property values or significant sight
lines or degrade the aesthetics of the adjoining properties or neighborhood
and that the placement and appearance of facilities on private property
should be minimized and limited in scope to the extent allowed by
law to achieve the purposes of this Section. To accomplish such purposes,
the Director may impose conditions on facilities permits, including
alternative landscaping, designs or locations, provided that such
conditions are reasonable and necessary, shall not result in a decline
of service quality and are competitively neutral and non-discriminatory.
(c)
An applicant receiving a facilities permit shall promptly notify
the Director of any material changes in the information submitted
in the application or included in the permit. The Director may issue
a revised facilities permit or require that the applicant reapply
for a facilities permit.
(d)
The Director may deny an application, if denial is deemed to
be in the public interest, for the following reasons:
(i)
Delinquent fees, costs or expenses owed by the
applicant;
(ii)
Failure to provide required information;
(iii)
The applicant being in violation of the provisions
of this Article or other City ordinances;
(iv)
For reasons of environmental, historic or cultural
sensitivity, as defined by applicable Federal, State or local law;
(v)
For the applicant's refusal to comply with reasonable
conditions required by the Director; and
(vi)
For any other reason to protect the public health,
safety and welfare, provided that such denial does not fall within
the exclusive authority of the Missouri Public Service Commission
and is imposed on a competitively neutral and non-discriminatory basis.
(4)
Permit revocation and ordinance violations.
(a)
The Director may revoke a facilities 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 permit or
this Article. Prior to revocation, the Director shall provide written
notice to the responsible person 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. A substantial
breach includes, but is not limited to, the following:
(i)
A material violation of the facilities permit or
this Article;
(ii)
An evasion or attempt to evade any material provision
of the permit or this Article or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its residents;
(iii)
A material misrepresentation of fact in the permit
application;
(iv)
A failure to complete facilities installation
by the date specified in the permit, unless an extension is obtained
or unless the failure to complete the work is due to reasons beyond
the applicant's control; and
(v)
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 ordinances, industry construction
standards or the City's pertinent and applicable ordinances, including
but not limited to this Article, provided that City standards are
no more stringent than those of a national safety ordinance.
(b)
Any breach of the terms and conditions of a facilities permit
shall also be deemed a violation of this Article and in lieu of revocation,
the Director may initiate prosecution of the applicant or the facilities
owner for such violation.
(5)
Appeals and alternative dispute resolution.
(a)
Any person aggrieved by a final determination of the Director
may appeal in writing to the City Administrator within five (5) business
days thereof. The appeal shall assert specific grounds for review
and the City Administrator 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 Administrator
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. Any person aggrieved by the final determination of
the City Administrator 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 Administrator's final determination.
(b)
On agreement of the parties and in addition to any other remedies,
any final decision of the City Administrator may be submitted to mediation
or binding arbitration.
(i)
In the event of mediation, the City Administrator
and the applicant 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.
(ii)
In the event of arbitration, the City Administrator
and the applicant shall agree to a single arbitrator. The costs and
fees of the 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 Administrator, one (1) arbitrator selected by
the applicant or facilities owner 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.
(c)
Facilities
Regulations.
(1)
The following general regulations apply to the placement and
appearance of facilities:
(a)
Facilities shall be placed underground, except when other similar
facilities exist above ground or when 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. Facilities shall not be located so as
to interfere or be likely to interfere with any public facilities
or use of public property.
(b)
Facilities shall be located in such a manner as to reduce or
eliminate their visibility. Non-residential zoning districts are preferred
to residential zoning districts. Preferred locations in order of priority
in both type districts are (a) thoroughfare landscape easements,
(c)
Rear yards, and
(d)
Street side yards on a corner lot behind the front yard setback.
Placements within side yards not bordered by a street or within front
yards are discouraged.
(e)
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 facilities. Sight proof screening,
landscape or otherwise, may be required for any facility taller than
three (3) feet in height or covering in excess of four (4) square
feet in size. Such screening shall be sufficient to reasonably conceal
the facility. A landscape plan identifying the size and species of
landscaping materials shall be approved by the Director prior to installation
of any facility requiring landscape screening. The person responsible
for the facilities shall be responsible for the installation, repair
or replacement of screening materials. Alternative concealment may
be approved by the Director to the extent it meets or exceeds the
purposes of these requirements.
(f)
Facilities shall be constructed and maintained in a safe manner
so as to not emit any unnecessary or intrusive noise and in accordance
with all applicable provisions of the Occupational Safety and Health
Act of 1970, the National Electrical Safety Code and all other applicable
Federal, State or local laws and regulations.
(g)
No person shall place or cause to be placed any sort of signs,
advertisements or other extraneous markings on the facilities, except
such necessary minimal markings approved by the City as necessary
to identify the facilities for service, repair, maintenance or emergency
purposes or as may be otherwise required to be affixed by applicable
law or regulation.
(h)
If the application of this Subsection 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 the City shall not be required to incur any financial cost or
to acquire new locations for the applicant.
(2)
Any person installing, repairing, maintaining, removing or operating
facilities, and the person on whose behalf the work is being done,
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 and the responsible 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.
(3)
The applicant shall provide written notice to all property owners
within one hundred eighty-five (185) feet of the site at least forty-eight
(48) hours prior to any installation, replacement or expansion of
its facilities. Notice shall include a reasonably detailed description
of work to be done, the location of work and the time and duration
of the work.
(4)
At the City's direction, a person owning or controlling facilities
shall protect, support, disconnect, relocate or remove facilities,
at its own cost and expense, when necessary to accommodate the construction,
improvement, expansion, relocation or maintenance of streets or other
public works or to protect the ROW or the public health, safety or
welfare.
(5)
If a person installs facilities without having complied with
the requirements of this Article or abandons the facilities, said
person shall remove the facilities and if the person fails to remove
the facilities within a reasonable period of time, the City may, to
the extent permitted by law, have the removal done at the person's
expense.
(6)
Facilities shall be subject to all other applicable regulations
and standards as established as part of the City Code, including but
not limited to building codes, zoning requirements and rights-of-way
management regulations, in addition to the regulations provided herein.
[Ord. No. 2028 §5, 1-15-2008]
Any person found guilty of violating any provision of this Article
shall be punished by a fine not to exceed one thousand dollars ($1,000.00)
or by imprisonment not to exceed ninety (90) days or by both such
fine and imprisonment and each day the violation continues shall constitute
a separate offense.