[Ord. No. 2374 §1, 2-17-2004; Ord. No. 2566 §3, 10-16-2007]
Every provider and ROW user, as defined in Section 670.090, shall be subject to and comply with the additional or supplementary terms and conditions of the "ROW ordinance", as may be amended from time to time, which is incorporated herein by reference and such provisions and the provisions of this Code shall be deemed a condition of any franchise and agreement. The provisions of this Article shall also apply to providers and ROW users to the full extent permitted by law and additionally to all construction activities in public utility easements. For purposes of this Article, the term "provider" shall also include all ROW users.
[Ord. No. 2566 §3, 10-16-2007]
A.
Requirements Of Agreement Or Franchise.
1.
Agreement or franchise required.
a.
Franchise. Except where otherwise authorized or
required by applicable law, no ROW user may construct, maintain, own,
control or use facilities in the rights-of-way without a franchise
or ROW agreement with the City as provided herein. A franchise shall
be obtained in conformance will all applicable franchise procedures
for any ROW user seeking to use the rights-of-way for purposes of
providing cable television service or distribution of electricity,
gas, water, steam, lighting or sewer public utility service in the
City.
b.
ROW agreement. A ROW agreement shall be required for all other ROW users, except as provided herein or otherwise required by law. Such agreements shall conform to all applicable law and requirements, including as provided in Article II of Chapter 670 for ROW users providing communications services, if applicable, but shall not be subject to procedures applicable to franchises and the City may, if appropriate, approve form agreements that may be executed by the City Administrator in substantially the form approved.
c.
Incidental uses. Incidental uses of the rights-of-way
may be permitted without franchise or rights-of-way use agreement
pursuant to a special use permit issued by the Commissioner of Public
Works. The Commissioner may establish such application, requirements
and conditions applicable to such uses consistent with the purposes
of this Article or as otherwise established by law.
2.
Franchises and agreements non-exclusive — approval. The authority granted by the City in any agreement or franchise
shall be for non-exclusive use of the rights-of-way. The City specifically
reserves the right to grant, at any time, such additional agreements
or other rights to use the rights-of-way for any purpose and to any
other person, including itself, as it deems appropriate, subject to
all applicable law. The granting of an agreement or franchise shall
not be deemed to create any property interest of any kind in favor
of the ROW user. All franchises and agreements shall be approved by
ordinance of the Board of Aldermen on a non-discriminatory basis provided
that the applicant is in compliance with all applicable requirements.
Such franchises and agreements shall be deemed to incorporate the
terms of this Article and other applicable laws of the City, except
as may be expressly stated in such agreements and franchises.
3.
Lease required for public lands. Unless otherwise
provided, use or installation of any facilities in, on or over non-right-of-way
public lands of the City shall be permitted only if a lease agreement
or other separate written approval has been negotiated and approved
by the City with such reasonable terms as the City may require.
4.
Transferability. Except as provided in this Section
or as otherwise required by law, no franchise, agreement or permit
may be transferred without the written application to and consent
of the City based on the requirements and policies of this ROW ordinance.
The City shall not unreasonably withhold its consent to transfer as
provided herein.
B.
Application For Franchise Or Agreement Required.
1.
Application. An application for franchise or right-of-way
agreement shall be presented to the Commissioner in writing and shall
include all such information as is provided for in this Section. The
ROW user shall be responsible to accurately maintain the information
in the application during the term of any franchise or agreement and
shall be responsible for all costs incurred by the City due to the
failure to provide or maintain as accurate any application information
to the City required herein.
2.
Application fee. An application fee for review,
documentation and approval of such agreement or franchise shall be
established by the Commissioner to recover any actual costs anticipated
and incurred by the City in reviewing, documenting or negotiating
such agreement or franchise, including reasonable legal fees, provided
that no costs, if any, of litigation or interpretation of Sections
67.1830 or 67.1832, RSMo., shall be included if such inclusion is
prohibited by law as to that applicant. If the actual costs are thereafter
determined to be less than the application fee, such amount shall
be returned to the applicant after written request therefrom; if the
actual costs exceed the application fee, applicant shall pay such
additional amount prior to issuance of any final City approval after
written notice from the City. Nothing herein shall be construed to
prohibit the City from also charging reasonable compensation for use
of the rights-of-way where such a fee is not contrary to applicable
law.
3.
Application form. A ROW user shall submit a completed
application for franchise or right-of-way agreement on such form provided
by the City, which shall include information necessary to determine
compliance with this Code including, but not limited to:
a.
Identity and legal status of the ROW user.
b.
Name, address, telephone number, fax number and email address of
each officer, agent or employee responsible for the accuracy of the
application. Each officer, agent or employee shall be familiar with
the local facilities of the ROW user, shall be the person(s) to whom
notices shall be sent and shall be responsible for facilitating all
necessary communications including, but not limited to, certification
to the City of any material changes to the information provided in
such completed application during the term of any agreement.
c.
Name, address, telephone number, fax number and e-mail address of
the local representative of the ROW user who shall be available at
all times to act on behalf of the ROW user in the event of an emergency.
d.
Proof of any necessary permit, license, certification, grant, registration,
franchise agreement or any other authorization required by any appropriate
governmental entity including, but not limited to, the FCC or the
Public Service Commission.
e.
Description of the ROW user's intended use of the right-of-way, including
such information as to proposed services as to determine the applicable
Federal, State and local regulatory provisions as may apply to such
user.
f.
A list of authorized agents, contractors or subcontractors eligible
to obtain permits on behalf of the ROW user. An application may be
updated to add such person at the time of permit application if the
updated application is submitted by an authorized representative of
the ROW user.
g.
Information sufficient to determine the amount of net assets of the
ROW user.
h.
Information sufficient to determine whether the ROW user is subject
under applicable law to franchising, service regulation, payment of
compensation for the use of the right-of-way, taxation or other requirements
of the City.
i.
Such other information as may be reasonably required by the City
to determine requirements and compliance with applicable regulation.
4.
Approval process. After submission by the right-of-way
user of a duly executed and completed application and deposit fee
and executed franchise or right-of-way agreement as may be provided
by the Commissioner or as modified by the Commissioner in review of
the specific circumstances of the application, all in conformity with
the requirements of this Article and all applicable law, the Commissioner
shall submit such agreement to the Board of Aldermen for approval.
Upon determining compliance with this Article, the Board of Aldermen
shall authorize execution of the form franchise or right-of-way agreement
(or a modified agreement otherwise acceptable to the City consistent
with the purposes of this Article) and such executed franchise or
agreement shall constitute consent to use the rights-of-way; provided
that nothing herein shall preclude the rejection or modification of
any executed franchise or agreement submitted to the City to the extent
such applicable law does not prohibit such rejection or modification,
including where necessary to reasonably and in a uniform or non-discriminatory
manner reflect the distinct engineering, construction, operation,
maintenance or public work or safety requirements applicable to the
applicant.
[Ord. No. 2374 §1, 2-17-2004]
A.
At
least thirty (30) days before the beginning of any installation, removal
or relocation of its facilities, the provider shall submit detailed
plans of the proposed action to the City Engineer. The City Engineer
shall, within thirty (30) days of receipt of such plans, either approve
the plans or inform the provider of the reasons for disapproval. The
provider shall designate a responsible contact person with whom representatives
of the City Engineer can communicate with on all matters relating
to facilities installation and maintenance.
1.
Prior to any excavation within the rights-of-way, the provider shall
obtain a permit, pay all applicable fees and perform such work in
accordance with applicable provisions of the City ROW Ordinance and
any subsequent ordinances or regulations that may be adopted by the
City regarding excavation work.
2.
The provider shall post a bond with the City in accordance with the
City's ordinances in an amount determined by the City Engineer to
guarantee the timeliness and quality of any construction, repair and
restoration work, including damage to public or private property,
and to guarantee the removal of its facilities from the City's rights-of-way
should such removal be required upon the expiration of an agreement.
3.
Prior to the commencement of any construction or alteration of its
facilities located in the rights-of-way, the provider shall furnish
to the City Engineer a subsurface utility engineering study on the
proposed route of construction, expansion or alteration which shall
consist of the following tasks:
a.
Readily available plans, plats and other location data indicating
the existence and approximate location of all facilities along the
proposed construction route;
b.
Completion of a visual survey and written record of the location
and dimensions of any above-ground features of any underground facilities
along the proposed construction route including, but not limited to,
manholes, valve boxes, utility boxes, posts and visible street cut
repairs;
c.
Plot and incorporate the data obtained from completion of task (1)
and (2) above onto the provider's proposed system route maps, plan
sheets and computer aided drafting and design (CADD) files; and
d.
Provide all such data collected into a CADD file (or other format
as may be identified by the City Engineer) compatible with that used
by the City Engineer and deliver a copy to the City Engineer.
[Ord. No. 2374 §1, 2-17-2004]
Each licensee or franchisee shall maintain and file with the
City updated maps, in such form as may be required by the City Engineer,
providing the location and sufficient detail of all facilities existing
in the rights-of-way on the effective date of any agreement or franchise
and those reasonably anticipated to be installed in each six (6) month
period subsequent to the initial and updated filing and such other
related information as required by the City Engineer. Such maps shall
be updated and kept current with the City.
[Ord. No. 2374 §1, 2-17-2004]
Provider shall construct and maintain its facilities so as not
to interfere with other users of the rights-of-way. Except as may
otherwise be provided, the provider shall, prior to commencement of
work, execute a City-approved resident-notification plan to notify
residents affected by the proposed work. All construction and maintenance
by provider or its subcontractors shall be performed in accordance
with industry standards.
[Ord. No. 2374 §1, 2-17-2004]
Provider shall not place or cause to be placed any sort of signs,
advertisements or other extraneous markings, whether relating to provider
or any other person or entity on the public rights-of-way, except
such necessary minimal markings as approved by the City as are reasonably
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.
[Ord. No. 2374 §1, 2-17-2004]
Unless otherwise approved in writing by the City in the attachment,
installation, removal, reattachment, reinstallation, relocation or
replacement or otherwise of the facilities, provider shall neither
remove, cut, nor damage any trees or their roots in and along the
streets, alleys and public places of the City. Tree trimming and pruning
may be permitted to occur only after prior written notice to the City
of the extent of trimming and pruning to be performed and the prior
written approval thereof by the City. The type and extent of trimming
and pruning shall be in accordance with the requirements of the City.
[Ord. No. 2374 §1, 2-17-2004]
Prior to its installation of any facilities in the rights-of-way
and after it provides the City with its proposed plans for the facilities,
the City may in its discretion designate certain locations or facilities
in the rights-of-way to be excluded from use by provider for its facilities,
including, but not limited to ornamental or similar specially-designed
street lights or other facilities or locations which in the reasonable
judgment of the City Engineer do not have electrical service adequate
or appropriate for the provider's facilities or cannot safely bear
the weight or wind loading thereof or any other facility or location
that in the reasonable judgment of the City Engineer is incompatible
with the proposed facilities or would be rendered unsafe or unstable
by the installation. The City Engineer may further exclude certain
other facilities that have been designated or planned for other use
or are not otherwise available for use by provider due to engineering,
technological, proprietary, legal or other limitations or restrictions
as may be reasonably determined by the City. In the event such exclusions
conflict with the reasonable requirements of the provider, the City
will cooperate in good faith with provider to attempt to find suitable
alternatives, if available, provided that the City shall not be required
to incur financial cost nor require the City to acquire new locations
for Provider.
[Ord. No. 2374 §1, 2-17-2004]
The design, location and nature of all facilities shall be subject
to the review and approval of the City Engineer. Such review shall
be based on non-discriminatory bases in application of City policy
and approvals shall not be unreasonably withheld. Except as provided
herein, all facilities constructed after the date of an agreement
shall be placed underground. Antenna or other facilities may be located
above ground only if approved by the City Engineer for good cause
and including as may be specifically authorized in an Exhibit attached
hereto. Unless extraordinary circumstances exist, good cause shall
not include authorization for above-ground facilities requiring new
poles or major modification to existing above-ground structures. Above-ground
pedestals, vaults, antennae or other facilities may be installed only
if approved by the City where alternative underground facilities are
not feasible or where underground requirements are otherwise waived
pursuant to the provisions of this Subsection. Existing conduit shall
be used where feasible and available. The location, design and requirements
for antennae in the rights-of-way shall additionally be subject to
all specific ordinances, regulations or policies of the City generally
applicable to the siting of antennae. Where reasonable and appropriate
and where adequate public rights-of-way exists, the provider shall
place above-ground facilities underground in conjunction with City
capital improvement projects and/or at specific locations requested
by the City provided that such placement is practical, efficient and
economically feasible. Unless specifically authorized herein or otherwise
by the City, antennae/towers having a height of forty (40) feet or
greater located on the rights-of-way or antennae on other City-owned
or controlled property shall not be authorized by an Agreement, but
shall require a separate lease or use agreement with the City. City
height limitations, applicable zoning restrictions and general City
policies with regard to all users of the rights-of-way shall also
be applicable to all facilities. The City Engineer may establish such
regulations or policies as may be deemed necessary or appropriate
to effect this provision.
[Ord. No. 2374 §1, 2-17-2004]
Provider shall, prior to any excavation or installation within
the rights-of-way, provide sufficient notification and joint installation
opportunity on a shared-cost basis to potential users of the rights-of-way
as may be provided for by separate City policy. Such notification
and adopted policies shall be designed to maximize collocation of
providers to minimize the disturbance to the rights-of-way and maximize
its useable capacity. Provider shall not install new conduit or other
facilities in the rights-of-way where existing conduit is available
to provider that would reasonably avoid the need for new excavation
or overhead installations. Provider shall identify by mapping, as
required by the City Engineer, the location and specifications of
all conduit available or dedicated for collocation. Any person unreasonably
failing to respond to collocation opportunities or otherwise comply
with this provision or policies adopted hereunder shall, unless good
cause is found by the City, be precluded from use of the rights-of-way
for a period of thirty (30) months at such locations that would reasonably
have been accommodated by the collocation opportunity that was declined.
Where Service is to be provided to new subdivisions or construction,
providers may be required to use conduit or other previously installed
facilities and reimburse the developer pursuant to a reimbursement
and specifications policy adopted by the City.
[Ord. No. 2374 §1, 2-17-2004]
If any provider chooses to make its facilities physically available
for use by any other provider, it shall do so only under terms that
are fair and reasonable, competitively neutral and non-discriminatory
and which do not prohibit or have the effect of prohibiting the ability
of any entity to provide any interstate or intrastate telecommunications
service under the circumstances. Provider shall further comply with
the facilities attachment requirements of Federal law codified at
47 U.S.C. Section 224.
[Ord. No. 2374 §1, 2-17-2004]
Except if contrary to governing law, when provider installs
any new conduit, the provider shall, if so directed in writing as
part of any permit approval, simultaneously install sufficient additional
conduit or other related facilities ("excess conduit") as may be determined
by the City Engineer and in order to reasonably meet the needs of
existing and future users of the rights-of-way. The criteria for when
such conduit will be required, the amount of conduit to be required,
management and ownership of the excess conduit and financing of the
excess conduit and related matters shall be established by a separate
City policy. Such policy shall be publicly available and each agreement
shall be deemed subject to such applicable policies adopted or as
may be amended. The excess conduit shall be designed and installed
in accordance with City specifications. The City may reserve for its
own purposes a portion of any excess conduit dedicated to the City,
but shall make available any portion not so reserved to any and all
subsequent providers (or others as determined by the City) on a non-discriminatory
basis for fair and reasonable compensation that shall be paid in addition
to the franchise or use fees. When sections of provider's conduit
are installed simultaneously with another provider, the cost of such
sections of excess conduit shall also be cost shared among each provider
as may be established by policy. The requirements herein shall be
administered and applied so as not to create an obstacle to entry
in the market and on a competitively neutral and non-discriminatory
basis to maximize the available space in the rights-of-way and designed
to minimize the total number of excavations and cost of total communications
infrastructure installation. No linear foot charge shall apply to
any excess conduit installed by provider and dedicated to the City.
[Ord. No. 2374 §1, 2-17-2004]
Upon expiration of an agreement whether by lapse of time, by
agreement between the provider and the City or by forfeiture thereof,
the provider shall remove, at its sole cost, from public property
any and all of its facilities that are the subject of an agreement
within a reasonable time after such expiration, not to exceed ninety
(90) days and it shall be the duty of provider immediately upon such
removal to restore the rights-of-way from which the facilities are
removed to as good condition as the same were before the removal was
effected and as required by the City. Provider shall further, unless
otherwise consented to by the City, remove all facilities that have
not been used for a period of more than one (1) year. Notwithstanding
the foregoing, upon request of provider, the City may allow underground
facilities to be left in place when it is not practical or desirable
to require removal.
[Ord. No. 2374 §1, 2-17-2004]
Whenever the City shall in its exercise of the public interest
request of the provider the relocation or reinstallation of any of
its facilities, provider shall forthwith remove, relocate or reinstall
any such property as may be reasonably necessary to meet the request
and the cost of such relocation, removal or reinstallation of the
facilities shall be the exclusive obligation of said provider. Provider
shall upon request of any other person requesting relocation of facilities
and holding a validly issued building or moving permit of the City
and within forty-eight (48) hours prior to the date upon which said
person intends to exercise its rights under said permit, provider
shall thereupon temporarily raise, lower or relocate its wires or
other facilities as may be required for the person to exercise the
rights under the permit and provider may require such permit holder
to make payment in advance for any expenses incurred by said provider
pursuant to said person's request.
[Ord. No. 2374 §1, 2-17-2004]
The provider shall have no damages remedy or monetary recourse
whatsoever against the City for any loss, cost, expense or damage
arising from any of the provisions or requirements of any agreement
or because of the enforcement thereof by said City or for the failure
of said City to have the authority to grant all or any part of the
herein granted; provided that said provider expressly acknowledges
that it accepted the rights herein granted in reliance upon its independent
and personal investigation and understanding of the power of authority
of said City to enter into the agreement herein with provider; provided
further, that the provider acknowledges by its acceptance of said
agreement that it has not been induced to enter into an agreement
upon any understanding or promise, whether given verbally or in writing
by or on behalf of said City or by any other person concerning any
term or condition of an agreement not expressed herein; provided further,
that the provider acknowledges by the acceptance of an agreement that
it has carefully read the provisions, terms and conditions hereof
and is willing to and does accept all of the risk attendant to said
provisions, terms and conditions. Nothing herein shall preclude provider
from seeking injunctive or declaratory judgment relief against the
City where such relief is otherwise available and the requirements
therefor are otherwise satisfied; provided however, that the validity
of an executed agreement shall not be subject to challenge.
[Ord. No. 2374 §1, 2-17-2004]
The provider shall be responsible for all reasonable costs borne
by the City that are directly associated with provider's installation,
maintenance, repair, operation, use and replacement of its facilities
within the rights-of-way that are not otherwise accounted for as part
of the permit fee established pursuant to the ROW ordinance. All such
costs shall be itemized and the City's books and records related to
these costs shall be made available upon request to the provider.
Provider shall be responsible for its own costs incurred removing
or relocating its facilities when required by the City due to City
requirements relating to maintenance and use of the rights-of-way
for City purposes. Permit and inspection fees may be charged by the
City consistent with applicable law.
[Ord. No. 2374 §1, 2-17-2004]
During the term of an agreement, the provider shall obtain and
maintain at the provider's sole expense all insurance and bonds required
by the ROW ordinance or applicable agreement or franchise. Nothing
contained in this Code shall limit the provider's liability to the
City to the limits of insurance certified or carried.
