[Ord. No. 5047 §1, 11-19-2007]
A.
To the extent permitted by the 2007 Video Services Providers Act,
the City Council of the City of Richmond Heights 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 preempted by the issuance
of video service authorizations by the Missouri Public Service Commission
or otherwise by law, but only to the extent of said preemption.
[Ord. No. 5047 §2, 11-19-2007; Ord.
No. 5527, 11-20-2023]
A.
FRANCHISE AREA
GROSS REVENUES
1.
(a)
(b)
(c)
(d)
(e)
(f)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
2.
HOUSEHOLD
LOW-INCOME HOUSEHOLD
PERSON
SUBSCRIBER
VIDEO SERVICE
VIDEO SERVICE AUTHORIZATION
VIDEO SERVICE NETWORK
VIDEO SERVICE PROVIDER FEE
VIDEO SERVICE PROVIDER or PROVIDER
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 an entity holding a video service
authorization;
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;
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; or
"Gross Revenues" shall be limited to the total amounts billed
to the video service subscribers for recurring charges for video service
and event-based charges for video service, including, but not limited
to, pay-per-view and video-on-demand charges, for all such revenues
after August 23, 2023.
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, a house, a 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.
§ 522(6), but excluding video programming provided by a
commercial mobile service provider defined in 47 U.S.C. § 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, RSMo., to offer
video service to subscribers.
Wireline facilities, or any component thereof, that deliver
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.
The fee imposed under Section 630.020(C) hereof.
Any person authorized to distribute video service through
a video service network pursuant to a video service authorization.
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.
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 the construction,
maintenance, repair or operation of its video services network, copyright
infringements, and 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 attorneys' 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.
4.
Beginning August 28, 2023, the video service provider fee shall be four
and one-half percent (4.5%) of gross revenues. Beginning August 28,
2024, the video service provider fee shall be four percent (4%) of
gross revenues. Beginning August 28, 2025, the video service provider
fee shall be three and one-half percent (3.5%) of gross revenues.
Beginning August 28, 2026, the video service provider fee shall be
three percent (3%) of gross revenues. Beginning August 28, 2027, the
video service provider fee shall be two and one-half percent (2.5%)
of gross revenues. Any fees incurred by the provider prior to August
23, 2023, shall be paid at the rate of five percent (5%) of gross
revenues.
[Ord. No. 5047 §3, 11-19-2007]
A.
ABOVEGROUND FACILITIES
CITY FACILITIES
CITY MANAGER
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.
a.
b.
c.
d.
e.
2.
RIGHTS-OF-WAY (or ROW) PERMIT
RIGHTS-OF-WAY (or ROW) USER
RIGHTS-OF-WAY (or ROW) WORK
1.
a.
b.
2.
SERVICE
WITHIN
Definitions. The following terms shall have the
following meanings unless otherwise defined by context:
Includes facilities proposed to be placed above ground, at
a fixed location, but excluding facilities to be placed on existing
utility poles.
Any facilities located within the public rights-of-way and
owned by the City.
The manager or administrator of the City or such other person designated by the City to hear appeals as provided in Section 630.030(E) hereof.
The City's Public Works Director or such other person designated
to administer and enforce this Chapter.
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 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, the air space
above the surface, and the area below the surface of any public street,
highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel,
parkway, waterway, public easement, or sidewalk in which the City
now or hereafter holds any 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:
ROW, such as City-owned ors 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 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 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 stormwater sewerage or any similar or related service,
to one 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 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 determines in his or her discretion to be necessary and
consistent with the provisions of this Chapter and to accomplish the
purposes of this Chapter. Each application shall at minimum contain
the following information for the proposed ROW work, unless otherwise
waived by the Director:
(1)
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;
(2)
If different from the applicant, the name, address,
and telephone number of the person on whose behalf the proposed work
is to be performed;
(3)
A description of the proposed work, including a
conceptual master plan and an 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;
(4)
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;
(5)
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:
(1)
An application fee approved by the City to cover
the cost of processing the application;
(2)
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
the Director 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 has submitted all necessary information,
has paid the appropriate fees and is in full compliance with this
Chapter 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 Chapter.
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 shall not increase expenses by more than ten percent (10%)
of the applicant's costs for the work as proposed, shall not result
in a decline of service quality, and 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.
(1)
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.
(2)
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 Subsection (B)(2)(c)(1) or any other provision of this Chapter 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 Chapter, 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:
(1)
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;
(2)
Length of affected rights-of-way, number of road
crossings, and identification and description of any pavement or curb
cuts included in the work;
(3)
Information regarding scheduling and coordination
of work, if necessary;
(4)
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;
(5)
An acknowledgement and representation by the applicant
to comply with the terms and conditions of the ROW permit and this
Chapter; and
(6)
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:
(1)
Delinquent fees, costs or expenses owed by the
applicant;
(2)
Failure to provide information required by the
application or this Chapter;
(3)
The applicant being in violation of the provisions
of this Chapter or other pertinent and applicable City ordinances;
(4)
Failure to return the ROW to its previous condition
under previously issued ROW permits or after prior excavations by
the applicant;
(5)
For reasons of environmental, historic or cultural
sensitivity, as defined by applicable Federal, State or local law;
(6)
For the applicant's refusal to comply with alternative
ROW work methods, locations, or other reasonable conditions required
by the Director; and
(7)
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 Chapter.
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:
(1)
A material violation of a provision of the ROW
permit or this Chapter;
(2)
An evasion or attempt to evade any material provision
of the ROW permit or this Chapter, or the perpetration or attempt
to perpetrate any fraud or deceit upon the City or its residents;
(3)
A material misrepresentation of fact in the ROW
permit application;
(4)
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
(5)
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 Chapter or any other applicable ordinances, provided
that City standards are no more stringent than those of a national
safety ordinance. The duty to properly install any facilities to the
standards mentioned above shall remain with the installer.
b.
Any breach of the terms and conditions of a ROW permit shall
also be deemed a violation of this Chapter, 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:
(1)
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;
(2)
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
(3)
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 attorneys' fees, in addition to any and all penalties established
in this Chapter.
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 preempted 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 aboveground 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.
Aboveground 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:
(1)
Ornamental or similar specially designed street
lights;
(2)
Designated historic areas;
(3)
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;
(4)
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
(5)
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.
Aboveground 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 aboveground facilities 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.
Aboveground 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 aboveground facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director shall cooperate in good faith with the applicant to attempt to find suitable alternatives, but such alternatives may exceed the cost increase limitation established by Section 630.030(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 installs the facilities
within the ROW without having complied with the requirements of this
Chapter or abandons the facilities, the City may require the removal
of the facilities, remove 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 Chapter.
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 Chapter.
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 430.030(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 Chapter.
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
Chapter. A ROW user:
(1)
Must ensure that contractors, subcontractors and
all employees performing ROW work are trained and experienced;
(2)
Shall be responsible for ensuring that all work
is performed consistent with the ROW permit and applicable law;
(3)
Shall be fully responsible for all acts or omissions
of contractors or subcontractors;
(4)
Shall be responsible for promptly correcting acts
or omissions by any contractor or subcontractor; and
(5)
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:
(1)
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-day minimum strength, four thousand five hundred
(4,500) psi concrete mix.
(2)
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-inch thick, twenty-eight-day
minimum strength, four thousand five hundred (4,500) psi concrete
mix under a three-inch asphalt concrete lift of Type C mix to meet
existing grades.
(3)
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 1/2) inches
of Type X and three (3) inches of Type C asphalt concrete mix. Concrete
driveway approaches will consist of a four-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.
No on-street storage of construction materials is allowable.
d.
No Johnny-on-the-spot facilities are allowable on City ROW or
in public view from the ROW.
e.
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.
f.
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 days of invoice. The Director
may extend the cure period on good cause shown.
g.
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 Chapter.
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 canceled, or allowed to lapse, until sixty
(60) days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
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.
Types and amounts.
(1)
All ROW users shall maintain, for the duration
of any ROW work and, when applicable, for as long as the ROW user
has facilities within the rights-of-way, at least the following liability
insurance coverage: worker's compensation and employer liability insurance
to meet all requirements of Missouri law and commercial general liability
insurance with respect to the construction, operation, and maintenance
of the facilities, and the conduct of the ROW user's business in the
City, in the minimum amounts of:
(2)
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 Chapter.
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 Chapter.
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:
(1)
Any ROW work, including but not limited to the
construction, maintenance, repair, or replacement of the facilities;
(2)
The operation of its facilities;
(3)
Failure to secure consents from landowners; or
(4)
Any actions taken or omissions made by the person
pursuant to the authority of this Chapter.
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 Chapter,
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 Chapter 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 Chapter. 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 Chapter; 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 Manager within five (5) business
days thereof. The appeal shall assert specific grounds for review,
and the City Manager shall render a decision on the appeal within
fifteen (15) business days of receipt affirming, reversing, or modifying
the determination of the Director. The City Manager may extend this
time period for the purpose of any investigation or hearing deemed
necessary. A decision affirming the Director's determination shall
be in writing and supported by findings establishing the reasonableness
of the decision.
3.
Any person aggrieved by the final determination of the City
Manager may file a petition for review pursuant to Chapter 536 of
the Revised Statutes of Missouri, as amended, in the Circuit Court
of the County of St. Louis. Such petition shall be filed within thirty
(30) days after the City Manager's final determination.
4.
Arbitration and mediation.
a.
On agreement of the parties and in addition to any other remedies,
any final decision of the City Manager may be submitted to mediation
or binding arbitration.
b.
In the event of mediation, the City Manager and the applicant
or ROW user shall agree to a mediator. The costs and fees of the mediator
shall be borne equally by the parties, and each party shall pay its
own costs, disbursements and attorney fees.
c.
In the event of arbitration, the City Manager 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-person
arbitration panel consisting of one (1) arbitrator selected by the
City Manager, one (1) arbitrator selected by the applicant or ROW
user, and one (1) person selected by the other two (2) arbitrators,
in which case each party shall bear the expense of its own arbitrator
and shall jointly and equally bear with the other party the expense
of the third arbitrator and of the arbitration. Each party shall also
pay its own costs, disbursements and attorney fees.
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 Chapter to be
done in any street, within the time prescribed and to the reasonable
satisfaction of the City, the City may, at its option, after thirty
(30) days' notice, cause such work to be done, and the 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 Subsection 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 Chapter shall be in preference or hindrance
to the right of the City and any board, authority, commission or public
service corporation of the City to use or occupy the rights-of-way
or to perform or carry on any public works or public improvements
of any description.
[Ord. No. 5047 §4, 11-19-2007]
A.
ABOVEGROUND FACILITIES
DIRECTOR
FACILITIES
FACILITIES PERMIT
PERSON
SERVICE
Definitions. The following terms shall have the
following meanings unless otherwise defined by context:
Includes facilities proposed to be placed above ground, at
a fixed location, but excluding facilities to be placed on existing
utility poles.
The City's Zoning Administrator or such other person designated
to administer and enforce this Chapter.
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 stormwater sewerage or any similar or related service,
to one 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 aboveground 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 Chapter and
to accomplish the purposes of this Chapter. Each application shall
at 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 Subsection (B)(3)(d) hereof, the Director shall issue a facilities permit upon determining that the applicant has submitted all necessary information, has paid the appropriate fees and is in full compliance with this Chapter 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:
(1)
Delinquent fees, costs or expenses owed by the
applicant;
(2)
Failure to provide required information;
(3)
The applicant being in violation of the provisions
of this Chapter or other City ordinances;
(4)
For reasons of environmental, historic or cultural
sensitivity, as defined by applicable Federal, State or local law;
(5)
For the applicant's refusal to comply with reasonable
conditions required by the Director; and
(6)
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 Chapter. 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:
(1)
A material violation of the facilities permit or
this Chapter;
(2)
An evasion or attempt to evade any material provision
of the permit or this Chapter, or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its residents;
(3)
A material misrepresentation of fact in the permit
application;
(4)
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
(5)
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 Chapter, 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 Chapter, 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 Manager within five business (5)
days thereof. The appeal shall assert specific grounds for review,
and the City Manager shall render a decision on the appeal within
fifteen (15) business days of its receipt affirming, reversing or
modifying the determination of the Director. The City Manager may
extend this time period for the purpose of any investigation or hearing
deemed necessary. A decision affirming the Director's determination
shall be in writing and supported by findings establishing the reasonableness
of the decision. Any person aggrieved by the final determination of
the City Manager may file a petition for review pursuant to Chapter
536 of the Revised Statutes of Missouri, as amended, in the Circuit
Court of the County of St. Louis. Such petition shall be filed within
thirty (30) days after the City Manager's final determination.
b.
On agreement of the parties and in addition to any other remedies,
any final decision of the City Manager may be submitted to mediation
or binding arbitration.
(1)
In the event of mediation, the City Manager 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.
(2)
In the event of arbitration, the City Manager 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-person
arbitration panel consisting of one (1) arbitrator selected by the
City Manager, 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 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 aboveground 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 aboveground
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.
Location.
(1)
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:
(2)
Placements within side yards not bordered by a
street or within front yards are discouraged.
c.
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 facilities 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.
d.
Facilities shall be constructed and maintained in a safe manner
and 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.
e.
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.
f.
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 Chapter 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. 5047 §5, 11-19-2007]
Any person found guilty of violating any provision of this Chapter
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.
