[R.O. 2013 § 550.010; Ord. No.
06-16 § 1, 3-27-2006]
To the extent permitted by law, this Chapter shall apply to
all persons desiring to construct, operate or maintain facilities
in, along, across, under or over public rights-of-way within the City.
[R.O. 2013 § 550.020; Ord. No.
06-16 § 2, 3-27-2006]
Definitions And Usage — General. For the purposes
of this Chapter, the following terms, phrases, words and abbreviations
shall have the meanings given herein, unless otherwise expressly stated.
When not inconsistent with the context, words used in the present
tense include the future tense and vice versa, words in the plural
number include the singular number and vice versa and the masculine
gender includes the feminine gender and vice versa. The words "shall"
and "will" are mandatory and "may" is permissive. Unless otherwise
expressly stated or clearly contrary to the context, terms, phrases,
words and abbreviations not defined herein shall be given the meaning
set forth in the City Code and, if not defined therein, their common
and ordinary meaning. For further convenience, the first letter of
terms, phrases, words and abbreviations defined in this Chapter have
been capitalized, but an inadvertent failure to capitalize such letter
shall not affect its meaning, nor shall the inadvertent capitalization
of the first letter of a term, phrase, word or abbreviation not defined
herein affect the meaning thereof.
The specific person applying for and receiving a permit under
this Chapter.
That form designed by the City Administrator or designee
which an applicant must use to obtain a permit to conduct facilities
work across, over or under the City's right-of-way.
The City of Fredericktown, Missouri.
The City Administrator or his/her designee.
The City Engineer or his/her designee.
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, uncovered,
removed or otherwise displaced by means of any tools, equipment or
explosives, except that any de minimis displacement or movement of
ground caused by pedestrian or vehicular traffic or any other activity
which does not disturb or displace surface conditions of the earth,
asphalt, concrete, sand, gravel, rock or any other material in or
on the ground shall not be deemed excavation.
Any conduit, duct, line, pipe, wire, hose, cable, culvert,
tube, pole, receiver, transmitter, satellite dish, micro call, pico
cell, repeater, amplifier or other device, material, apparatus or
medium usable (whether actually used for such purpose or not) for
the transmission or distribution of any service or commodity installed
below or aboveground within the public rights-of-way of the City,
whether used privately or made available to the public.
The installation of new facilities or any change, replacement,
relocation, removal, alteration or repair of existing facilities that
requires excavation within the public rights-of-way, except for the
occasional replacement of utility poles and related equipment at the
existing general location that does not involve either a street or
sidewalk cut.
A permit granted by the City Administrator to do facilities
work within the public rights-of-way.
An individual, partnership, association, joint stock company,
trust, organization, limited-liability company, corporation or other
entity or any lawful successor thereto or transferee thereof, but
such term does not include the City.
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 or other similar
property in which the City now or hereafter holds any property interest,
which was dedicated as rights-of-way. No reference herein, or in a
permit, to "public rights-of-way" shall be deemed to be a representation
or guarantee by the City that its interest or other right to control
the use of such property is sufficient to permit its use for such
purposes. "Public rights-of-way" does not include the airwaves above
the rights-of-way with regard to cellular or other non-wire telecommunications
or broadcast services or easements obtained by utilities or private
easements in platted subdivisions or tracts.
[R.O. 2013 § 550.030; Ord. No.
06-16 § 3, 3-27-2006]
A.
Permit Requirements. Any person desiring to conduct facilities work
within public rights-of-way must first apply for and obtain a permit,
in addition to any other building permit, license, easement or authorization
required by law, unless such facilities work must be performed on
an emergency basis, then the person conducting the work shall as soon
as practicable notify the City of the location of the work and apply
for the required permit by the third business day following the commencement
of the facilities work.
1.
All applications for permits shall be submitted to the City
Administrator. The City Administrator shall design and make available
standard forms for such applications, requiring such information as
the City Administrator determines to be necessary, consistent with
the provisions of this Chapter, to accomplish the purposes of this
Chapter.
2.
Each such application shall be accompanied by payment of fees
as designated in this Chapter.
3.
The City Administrator shall review each application for a permit and, upon determining that the applicant has authority to perform the desired facilities work and that the applicant has submitted all necessary information and has paid the appropriate fee, shall issue the permit, except as provided in Subsection (A)(4). In order to avoid excessive processing and accounting costs to either the City or the applicant, the City Administrator shall have authority to establish procedures for bulk processing of applications and periodic payment of fees.
4.
It is the intention of the City that disruption of the public
rights-of-way should be minimized. Upon receipt of an application
for a permit, the City Administrator shall do the following:
a.
Evaluate the degree of excavation necessary to perform the facilities
work in the right-of-way and determine whether the excavation will
be more than minor in nature. If the applicant can show to the City
Administrator's reasonable satisfaction that the facilities work
involves any of the following:
(1)
No significant disruption or damage to the public
rights-of-way, or
b.
For circumstances where the City Administrator determines that there will be significant excavation of the public rights-of-way and no exemption under Subsection (A)(4)(a) or any other provision of this Section applies, the City Administrator may, consistent with the time requirements set forth in Subsection (A)(3) and in the permit, direct permit holders performing facilities work in the same area to consult on how they may schedule and coordinate their work to accomplish the goal of this Section.
5.
Each permit shall include projected commencement and termination
dates or, if such dates are unknown at the time the permit is issued,
a provision requiring the permit holder to provide the City Administrator
with reasonable advance notice of such dates once they are determined,
length of public rights-of-way, number of road crossings, information
regarding scheduling and coordination of facilities work, if applicable,
and location of facilities.
6.
The City Engineer may include in permits such conditions and
requirements as are reasonably necessary to protect structures and
facilities in the public rights-of-way from damage and for the proper
restoration of such public rights-of-way, structures and facilities
and for the protection of the public and the continuity of pedestrian
and vehicular traffic.
7.
Permit Denial.
a.
The City Administrator may deny a permit application for the
following reasons if deemed in the public's interest:
(1)
Undisputed past due fees from prior permits,
(2)
Failure to return the right-of-way to its previous
condition under previous permits,
(3)
Undue disruption to existing utilities, transportation
or City use,
(4)
Area is environmentally sensitive as defined by
State or Federal Statute,
(5)
Failure to provide required information, and
(6)
The applicant is in violation of the provisions
of this Chapter.
b.
Notwithstanding the provisions of Subsection (A)(7)(a)(3) and (4) above, the City Administrator will cooperate with the applicant to identify alternative routes which most nearly match the routes requested by applicant for the placement of facilities.
8.
Applicant may appeal any final decision of the City Administrator
to:
a.
The City Administrator, which appeal shall be acted upon by
the City Administrator within five (5) business days; and
b.
If denied by the City Administrator, the applicant may then
appeal to the Governing Body of the City which shall consider the
appeal within sixty (60) days or at its next regular meeting, whichever
occurs first.
9.
Applicant must pay the following fees: In addition to the permit
fees, the City will bill the applicant for its costs. Any fees collected
pursuant to this Section will be used only to reimburse the City for
its actual incurred cost of managing the rights-of-way and will not
be used to generate revenue to the City above such costs. The City
may not require or accept in-kind services in lieu of any fee.
a.
Permit Fee. A fee charged to recover the City's actual
costs for an applicant's facilities work in the right-of-way
including the costs of processing permits, inspections and administration
of this Chapter, excluding legal fees relating to the interpretation
or enforcement of this Chapter including all such appeals. The permit
fee is one hundred dollars ($100.00).
b.
Applicant Subject To Other Laws, Police Power.
(1)
An applicant shall at all times be subject to all
lawful exercise of the Police powers of the City including, but not
limited to, all powers regarding zoning, supervision of construction
and control of public rights-of-way.
(2)
No action or omission of the City shall operate
as a future waiver of any rights of the City under this Chapter.
(3)
The City shall have the maximum plenary authority
to regulate applications, permits and facilities work as may now or
hereafter be lawfully permissible. Except where rights are expressly
granted or waived by a permit, they are reserved, whether or not expressly
numerated. This Chapter may be amended from time to time and in no
event shall this Chapter be considered a contract between the City
and an applicant such that the City would be prohibited from amending
any provision hereof.
[R.O. 2013 § 550.040; Ord. No.
06-16 § 4, 3-27-2006]
A.
Oversight Of Facilities Work.
1.
An applicant shall construct, operate and maintain facilities
subject to the supervision of all of the authorities of the City who
have jurisdiction in such matters and in strict compliance with this
Chapter, all applicable zoning and construction permitting ordinances,
departmental rules and regulations.
2.
Facilities work shall be subject to periodic inspection by the
City.
3.
The City Administrator shall have full access to all portions
of facilities work and may issue stop-work orders and corrective orders to prevent unauthorized
work. Such corrective or stop-work orders shall state that work not
authorized by the permit is being carried out, summarize the unauthorized
work and provide a period of not longer than thirty (30) days to cure
the problem, which cure period may be immediate if certain activities
must be ceased to protect the public safety, and may be delivered
personally or by certified mail to the address listed on the application
for permit or to the person in charge of the construction site at
the time of delivery. Such orders may be enforced by equitable action
in the Circuit Court of Madison County, Missouri, and if the City
prevails in such case, the person involved in the facilities work
shall be liable for all costs and expenses incurred by the City, including
reasonable attorney's fees, in enforcing such orders, in addition
to any and all penalties established in this Chapter.
4.
Any person who engages in facilities work in the public rights-of-way
and who has not received a valid permit from the City shall be subject
to all requirements of this Chapter. Except in those instances where
facilities work must be performed on an emergency basis, the City
may, in its discretion, at any time until a permit is secured, order
the facilities work ceased and do any of the following: require such
person to apply for a permit within thirty (30) days of receipt of
a written notice from the City that a permit is required; require
such person to remove its property and restore the affected area to
a condition satisfactory to the City or take any other action it is
entitled to take under applicable law including, but not limited to,
filing for and seeking damages for trespass.
B.
Construction Standards.
1.
The construction, operation, maintenance and repair of facilities
shall be in accordance with applicable health, safety and construction
codes.
2.
All facilities shall be installed and located with due regard
for minimizing interference with the public and with other utility
users of the rights-of-way, including the City.
3.
An applicant shall not place facilities where they will damage
or interfere with the use or operation of previously installed facilities
or obstruct or hinder the various utilities serving the residents
and businesses in the City of their use of any public rights-of-way.
4.
Any and all public rights-of-way disturbed or damaged during
the facilities work shall be promptly repaired or replaced by the
applicant to its previous condition.
5.
Any contractor or subcontractor used for facilities work 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 an applicant would have hereunder
and applicable laws if the work was performed by the applicant. The
applicant shall be responsible for ensuring that the work of contractors
and subcontractors is performed consistent with its permits and applicable
law, shall be fully responsible for all acts or omissions of contractors
or subcontractors and shall be responsible for promptly correcting
acts or omissions by any contractor or subcontractor.
[R.O. 2013 § 550.050; Ord. No.
06-16 § 5, 3-27-2006]
A.
Performance Bond.
1.
Prior to any facilities work in the public rights-of-way, an
applicant shall establish in the City's favor a performance bond
in an amount determined by non-discriminatory regulations promulgated
by the City Administrator as necessary to ensure the applicant's
faithful performance of the facilities work. Differences in bond requirements,
including provisions for self-insurance or provisions for a single
continuing bond where facilities work is conducted by the same applicant
under numerous permits, may be established by regulation based on
the extent or nature of the facilities work, the past performance
of the applicant and not based on the characteristics of the applicant.
In lieu of a performance bond, applicant may provide an acceptable
substitute with the approval of the City Administrator.
2.
In the event an applicant fails to complete the facilities work
in a safe, timely and competent manner, 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, plus a reasonable
allowance for attorney's fees, up to the full amount of the bond.
3.
Upon completion of the facilities work to the satisfaction of
the City Administrator, the City Administrator shall eliminate the
bond or reduce its amount after a time appropriate to determine whether
the work performed was satisfactory, which time shall be established
by the City Administrator considering the nature of the work performed.
4.
A performance bond shall be issued by a surety acceptable to
the City 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."
5.
Applicant 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 or proceedings and judgments for damages
or equitable relief which are caused by the acts, errors and omissions
of applicant arising out of the construction and maintenance of its
facilities.
6.
Recovery by the City of any amounts under the performance bond
or otherwise does not limit an applicant's duty to indemnify
the City in any way, nor shall such recovery relieve an applicant
of its obligations under a permit or reduce the amounts owed to the
City other than by the amounts recovered by the City under the performance
bond or in any respect prevent the City from exercising any other
right or remedy it may have.
B.
Penalties. For each violation of provisions of this Chapter or a
permit granted pursuant to this Chapter as to which the City has given
notice to applicant as provided in this Chapter, penalties may be
chargeable to the applicant at a rate not exceeding one hundred dollars
($100.00) per day for so long as the violation continues.
[R.O. 2013 § 550.060; Ord. No.
06-16 § 6, 3-27-2006]
A.
Compliance With Laws. Each applicant shall comply with all applicable
City ordinances, resolutions, rules and regulations heretofore and
hereafter adopted or established.
C.
Rights And Remedies.
1.
The exercise of one (1) remedy under this Chapter shall not
foreclose use of another or shall the exercise of a remedy or the
payment of damages or penalties relieve an applicant of its obligations
to comply with its permits. Remedies may be used alone or in combination;
in addition, the City may exercise any rights it has at law or equity.
2.
The City hereby reserves to itself the right to intervene in
any suit, action or proceeding involving any provisions of this Chapter.
3.
No applicant shall be relieved of its obligation to comply with
any of the provisions of this Chapter by reason of any failure of
the City to enforce prompt compliance.
D.
Incorporation By Reference. Any permit granted pursuant to this Chapter
shall by implication include a provision that shall incorporate by
reference this Chapter into such permit as fully as if copied therein
verbatim.
E.
Force Majeure. An applicant shall not be deemed in violation of provisions
of this Chapter where performance was rendered impossible by war or
riots, civil disturbances, floods or other natural catastrophes beyond
the applicant's control and a permit shall not be revoked or
an applicant penalized for such non-compliance, provided that the
applicant takes immediate and diligent steps to bring itself back
into compliance and to comply as soon as possible under the circumstances
with its permit without unduly endangering the health, safety and
integrity of the applicant's employees or property, the public,
public right-of-way, public property or private property.
F.
Calculation Of Time. Unless otherwise indicated, when the performance
or doing of any act, duty, matter or payment is required under this
Chapter or any permit and a period of time is prescribed and is fixed
herein, the time shall be computed so as to exclude the first and
include the last day of the prescribed or fixed period of time.
G.
Severability. If any Section, Subsection, sentence, clause, phrase
or portion of this Chapter is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision and such holding shall
not affect the validity of the remaining portions hereof.
[R.O. 2013 § 550.070; Ord. No.
06-16 § 7, 3-27-2006]
The provisions hereof shall specifically apply to any lands
or property annexed as of the date of such annexation.
[R.O. 2013 § 550.080; Ord. No.
06-16 § 8, 3-27-2006]
A.
Conformance With Public Improvements.
1.
Whenever the City or the City Administrator deems it necessary
to remove, alter, change, relocate or adapt the underground or overhead
facilities of a public service provider in the public right-of-way
due to the City's reconstruction, widening or straightening of
streets; replacement of water or wastewater facilities; installation
of traffic signals, traffic signs and markings; or construction of
any other City public improvement project, the public service provider
that owns the facilities shall conform its facilities with the project
as prescribed by the director.
2.
The facilities must be conformed at the public service provider's
expense within ninety (90) days after the director issues notice to
the public service provider unless a different schedule for the work
is approved by the City Administrator.
3.
Facilities of a public service provider that are not conformed
within the ninety-day notice period or within the approved schedule
will be deemed abandoned and the City will not be liable for any damage
to or destruction or removal of the facilities or for any interruption
or termination of service through the facilities caused by the activity
of the City described in this Section.
B.
Relocation Of Facilities. Whenever, by reason of changes in the grade
or widening of a street or in the location or manner of constructing
a water pipe, drainage channel, sewer or other City-owned underground
or aboveground structure, it is deemed necessary by the City to move,
alter, change, adapt or conform the underground or aboveground facilities
of user, user shall make the alterations or changes, on alternative
right-of-way provided by the City, if available, as soon as practicable
after being so ordered, in writing, by the City without claim for
reimbursement or damages against the City.
[R.O. 2013 § 550.090; Ord. No.
06-16 § 9, 3-27-2006]
Any standards in this Chapter relating to facilities work shall
be fully applicable to work performed by the City and its departments.
[R.O. 2013 § 550.100; Ord. No.
10-66 § 1, 11-8-2010]
Subject to the limitations of the Revised Statutes of Missouri
and specifically Sections 67.1830 through 67.1848, RSMo., the City
has determined that in order to maintain the public health, safety
and welfare, it is necessary to place certain limitations and regulations
on the use of City electric power poles and other related structures
within City rights-of-way.
[R.O. 2013 § 550.110; Ord. No.
10-66 § 1, 11-8-2010]
A.
ATTACHMENTS
LICENSEE
NESC
POLE
As used in this Article, the following terms shall have the meanings
respectively ascribed to them in this Section:
All cables, wires, power supply equipment and all associated
hardware and equipment reasonably necessary to the attachment of said
cables, wires and power supply equipment and all associated hardware
and equipment reasonably necessary to the attachment of said cables,
wires and power supply equipment to the City poles or rights-of-way.
Any entity which furnishes telecommunications and/or cable
services and desires the use of the City's rights-of-way.
The National Electrical Safety Code.
A distribution system pole owned or jointly used by the City
for the distribution of electricity less than one hundred (100) kilovolts
(kV).
[R.O. 2013 § 550.120; Ord. No.
10-66 § 1, 11-8-2010]
No use, however extended, of the City's poles or rights-of-way
or the payment of fees or charges required under this Article shall
create or vest in any licensee any ownership of property rights in
the facilities of the City, but the rights granted shall be and remain
a mere license. The application and granting of any licenses under
this Article shall not constitute an assignment or apportionment of
any of the City's rights to use the public or private property
at the location of its facilities. Nothing herein contained shall
be construed to compel the City to maintain any of its facilities
for a period longer than is necessary for its own service requirements.
[R.O. 2013 § 550.130; Ord. No.
10-66 § 1, 11-8-2010]
The City assumes or accepts no responsibility or obligation
to maintain its facilities in any manner inconsistent with its current
maintenance practices due to the presence of any licensee's attachments.
The City may elect to abandon in place its own facilities despite
the existence of attachments thereon or therein with no assumption
of liability.
[R.O. 2013 § 550.140; Ord. No.
10-66 § 1, 11-8-2010]
A.
No party shall begin attaching any of its attachments to City power
poles, including any power supply, without first making application
for a license and obtaining written approval of the license from the
City. Any entity with an attachment existing prior to November 1,
2010, shall be given until May 31, 2011, to complete the licensing
process. Any unlicensed attachment may be removed by the City pending
the completion of the licensing requirements imposed by the City.
B.
Licensee shall submit its application on the City's form, which
form may be modified from time to time by the City, prior to installing
or modifying any attachments to any pole. In this application, the
licensee shall identify each new attachment setting forth the purpose
of each attachment. The City may review the design, strength and loading
characteristics of the pole and notify licensee whether the City will
permit the proposed use by the licensee of such pole pending any necessary
rearrangements and/or pole replacements. If the license is granted,
the licensee shall have the right to use such pole in accordance with
the terms and conditions of this Article and such other directions
concerning the location and design of the attachments.
C.
Except as otherwise prohibited by law, the City reserves the right
to deny any person, entity, firm or corporation access to any pole
or conduit where there is insufficient capacity on or in the City's
poles or conduits or for reasons of safety, reliability or general
applicable engineering standards. Provided however, that before the
City denies access based on insufficient capacity, the City shall
explore potential accommodations in good faith and take reasonable
steps to accommodate valid requests for access. Any existing poles
that must be replaced to accommodate a licensee's capacity requirements
for attachments or other equipment shall be replaced at the expense
of the licensee.
D.
School districts and other governmental entities shall be exempt
from the licensing provisions of this Article to the extent that the
City poles and rights-of-way are used by them to provide communication
services incidental to their government functions; provided however,
that all City safety and maintenance requirements are complied with.
[R.O. 2013 § 550.150; Ord. No.
10-66 § 1, 11-8-2010]
A.
Licensee shall, at its own expense, install all attachments in a
safe condition and maintain the same in good repair and in any reasonable
manner suitable to the City and so as not to conflict with the use
of said pole by the City, joint users or other licensees or interfere
with the use of facilities thereon or which from time to time may
be placed thereon. Licensee shall inspect its attachments on a routine
basis in accordance with NESC requirements in order to insure compliance
with the terms of this Article.
B.
When a license is issued pursuant to this Article, attachments shall
be installed and maintained in accordance with the requirements and
specifications of the then-current editions of the American National
Standards Institute, National Electrical Code (NEC), the NESC, the
Missouri State Electric Code, each of which is incorporated by reference
in this Article, the rules and regulations of the Occupational Safety
and Health Act of 1970 (OSHA) and in compliance with any lawful rules
or orders now in effect or that may hereafter be issued by the City
or other authority having jurisdiction. Without limiting the foregoing,
the licensee agrees that attachments will be installed in compliance
with all applicable spacing requirements with appropriate vertical
clearances and clearance to overhead electric lines and equipment
and consistent with generally applicable engineering requirements.
As and to the extent applicable, licensee shall comply with and shall
require any person acting under it, including without limitation agents,
contractors and employees, to comply with the Overhead Power Line
Safety Act (Section 319.075 et seq., RSMo., 1986) and/or the Underground
Facility Safety and Damage Prevention Act (Section 319.010 et seq.,
RSMo., 1986) as amended from time to time. Nothing contained in this
Article shall be construed as a grant of authority to licensee or
any person(s) acting under licensee to take or perform any act in
violation of the Overhead Power Line Safety Act and/or the Underground
Facility Safety and Damage Prevention Act.
C.
Licensee must furnish, own, install, operate and maintain attachments
at its own expense.
D.
Licensee will at all times comply with all applicable laws and regulations
and, at its sole cost and expense, secure and maintain all permits,
licenses, land rights, easements and approval of third parties necessary
for the construction, installation, operation, maintenance and removal
of its attachments.
E.
Licensee shall make no modification to any equipment or facilities
not owned by it or to any of the City's facilities without first
having obtained the City's written consent.
F.
In order to facilitate identification and notification of licensee's
attachments, licensee will provide means by which its attachments
can be identified from the ground, including underground attachments,
risers and drops.
G.
Any inspections, whether made or not by the City, shall not operate
to relieve licensee of any responsibility, obligation or liability
assumed under this Article for its attachments.
H.
In the event that attachments are found to be interfering or in conflict
with existing equipment, facilities or attachments of the City or
other licensees, or if any attachments interfere with the services
of the City or a pole becomes inadequate to support licensee's
attachment(s) and such interference or inadequacy of the pole is due
to licensee's attachment(s), then in the City's sole discretion
either:
1.
Licensee shall relocate attachments to another acceptable location,
if any, at licensee's expense, or
2.
The City may arrange to relocate, replace or remove attachments
and licensee shall reimburse the City for the expense thereby incurred.
If no acceptable location exists, then attachments shall be removed
or licensee shall pay for any modification necessary to continue its
access.
I.
Licensee shall comply with the following procedures with respect
to attachments used to provide telecommunication services as defined
in 47 U.S.C. § 224 (telecommunications attachment).
1.
Licensee shall notify the City within thirty (30) days after
an attachment becomes a telecommunications attachment. Contemporaneously
with the notice for each new telecommunications attachment, licensee
shall pay the City an amount equal to:
|
The difference between the telecom and CATV rate, as reflected in Section 515.330
|
x
|
A fraction, the denominator of which is 365 and the
numerator of which is the number of days from the date when the attachment
became a telecommunications attachment until the end of the calendar
year
|
2.
Within ten (10) days of the end of each calendar year, licensee
shall provide a certificate in a form reasonably acceptable to the
City certifying the number of telecommunications attachments as of
the end of the previous calendar year. The certificate will indicate
how many of these attachments became telecommunications attachments
during the previous calendar year and how many were telecommunications
attachments prior to the start of the previous calendar year. In addition,
licensee shall provide the City with access to the records of licensee
necessary to confirm to the reasonable satisfaction of the City the
accuracy of any certificate delivered by licensee pursuit to this
Article. To the extent the certificate reflects that an attachment
became a telecommunications attachment during the previous calendar
year but was not reported in accordance with this Article, licensee
shall pay the amount determined in accordance with this Article plus
interest at the rate of twelve percent (12%) plus an amount equal
to twenty-five dollars ($25.00) for each attachment for which the
licensee has been underbilled.
[R.O. 2013 § 550.160; Ord. No.
10-66 § 1, 11-8-2010]
The City reserves to itself, its successors and assigns the
right to maintain its poles and to operate its facilities in such
a manner as will best enable it to fulfill its utility service requirements.
The City shall not be liable to any licensee, its customers or any
others for any interruptions in services of any licensee or for interference
with the operation of any licensee's attachments arising in any
manner out of the use of the City's poles, including such times
as when interruptions or interference are caused by the negligence
of the City or any of its employees or agents.
[R.O. 2013 § 550.170; Ord. No.
10-66 § 1, 11-8-2010]
Licensee shall be responsible for any tree and vegetation trimming
that may be necessary to maintain the integrity of its lines. Licensee
shall comply with the provisions and spirit of this Code.
[R.O. 2013 § 550.180; Ord. No.
10-66 § 1, 11-8-2010]
A.
Except for the power supply equipment, licensee shall locate attachments
only in the communication space as designated by the NESC on the same
side of the pole as any existing communications circuitry, provided
however, that the licensee's power supply equipment shall be
placed in locations mutually agreed upon by the licensee and the City.
Position on the pole will be generally fiber-optic wire, cable television
and telecommunications from the top to the bottom.
B.
To minimize rearrangement work by all other companies involved, licensee
may negotiate with any other companies which may already be attached
for alternate means of attachment, i.e., overlashing an existing messenger
cable, use of horizontal spacing bracket, etc. The City's prior
written agreement on such alternate means of attachment is required.
Any party attaching equipment as provided in this Section shall be
responsible for its full share of expenses as a licensee. Brackets
may be used as a means of attachment. Bracket hardware must be approved
by the City and any prior joint user that will share the bracket.
C.
Licensee shall have the obligation and duty to verify that the service
requirements of joints users or other licensees will not be disrupted.
[R.O. 2013 § 550.190; Ord. No.
10-66 § 1, 11-8-2010]
A.
The occupancy of the City's existing rights-of-way by attachments,
without an attachment to the City's facilities, other than its
right-of-way, will only be permitted underground and only in the case
where said attachments do not physically occupy the City's conduit
system, manholes or vaults.
B.
Licensee will furnish, own, install, operate and maintain attachments
in rights-of-way.
C.
If the City either no longer needs a right-of-way occupied by licensee
or by virtue of change in law or ordinance is forced to forfeit said
right-of-way, it may assign whatever rights it has or whatever rights
remain to a licensee, but in no event shall the City be required to
make such assignment if in the City's absolute discretion it
determines that such assignment is not in the best interest of the
City.
D.
All installations made by licensee shall be made pursuant to specific
plans and processes approved by the City in advance. All work will
be done in a workmanlike manner assuring the City access to its facilities
at all times. Licensee shall maintain support and necessary stabilization
for the City's facilities at all times. Trenches shall be refilled
and restored to a condition comparable to that preceding construction.
E.
The City will maintain the rights-of-way as is necessary for its
facilities. Any differing requirements for maintenance of the rights-of-way
for attachments will be the responsibility and expense of licensee.
The grant of the license shall not be construed to compel the City
to maintain and keep in force any franchise, easement or similar rights
for a period longer than is necessary for its own service requirements.
F.
To the extent that it has the legal right, the City will permit necessary
access over the City's adjoining rights-of-way to licensee.
G.
Any and all additional rights or interests required from the underlying
fee owner or others having right to occupy the rights-of-way which
are prior in time to the license shall be obtained by licensee at
its sole expense.
[R.O. 2013 § 550.200; Ord. No.
10-66 § 1, 11-8-2010]
No licensee shall erect poles of its own in any of the public
rights-of-way within the City without first obtaining written permission
from the City and obtaining any and all necessary permits. The City
may in its absolute discretion require any licensee to move to poles
owned by the City if the City determines in its absolute discretion
that such move is in the best interest of the City.
[R.O. 2013 § 550.210; Ord. No.
10-66 § 1, 11-8-2010]
A.
Licensee shall promptly notify the City of any damage caused to the
poles or to the City's attachments located on the poles that
has been directly or indirectly caused by the licensee's use
of the poles.
B.
Prior to making any major repairs or conducting any maintenance work
on its attachments to the City's poles which may affect the structural
integrity of the poles, the licensee shall provide written notice
to the director of electric utilities of the City fully describing
the facilities on which the repairs or work will be conducted and
the nature of the repairs, maintenance or work. Such plan shall incorporate
proper engineering and construction methods to insure that the poles
and pole lines are not compromised. Such notice shall be provided
to the City at least five (5) days prior to such repairs, maintenance
or work except in the case of emergency repairs in which case notice
shall be delivered as soon as practical.
[R.O. 2013 § 550.220; Ord. No.
10-66 § 1, 11-8-2010]
Licensee shall at all times maintain all of its attachments
in good condition so that they do not interfere with the safe and
reliable operation of equipment or attachments belonging to the City
or other licensees.
[R.O. 2013 § 550.230; Ord. No.
10-66 § 1, 11-8-2010]
Any street, sidewalk or other public or private property disturbed,
damaged or injured by any licensee conducting activity under its license
shall be promptly repaired at the licensee's expense to the reasonable
satisfaction of the City and/or private property owner. Any expense
incurred by the City to repair damage to poles or other City property
as a result of failure or neglect by any licensee to maintain proper
clearances or due to improper construction methods and means that
compromise the structural integrity of the poles shall be borne solely
by the licensee.
[R.O. 2013 § 550.240; Ord. No.
10-66 § 1, 11-8-2010]
The City will not be required to provide advance notice for
facility modifications made by reason of emergency or routine maintenance
activities, but shall provide sixty (60) days' notice of non-routine
maintenance. If licensee uses the opportunity of the City's modification
to a facility to benefit the licensee's attachments, the licensee
shall pay a pro rata share of the modification cost. Where the City
must replace or relocate a pole and such replacement or relocation
is not caused by the addition of a new attachment, an emergency or
routine maintenance, the City shall provide the licensee reasonable
advance notice before undertaking such replacement or relocation.
Licensee shall transfer attachments within thirty (30) days of receiving
notice that the new pole is in place unless the time is extended by
written agreement with the City. If licensee does not transfer attachments
within such thirty (30) days, then the City may transfer attachments
at the licensee's expense. If the City or the City's designee
is required to make a return trip to remove a pole or perform other
service as a result of licensee's failure to transfer attachments
within the time period set forth herein, then the licensee shall reimburse
the City or such City's designee for the cost incurred by such
return trip.
[R.O. 2013 § 550.250; Ord. No.
10-66 § 1, 11-8-2010]
A.
At any time, the City may audit all or any portion of any attachments
to its poles or rights-of-way. Upon discovery of an unauthorized or
non-compliant attachment, the City may elect either of the following
options:
[R.O. 2013 § 550.260; Ord. No.
10-66 § 1, 11-8-2010]
A.
If the City at any time desires to abandon a jointly used pole due
to replacement or repair, it shall give the licensee notice, in writing,
to that effect at least thirty (30) days prior to the date on which
it intends to abandon such pole, and the licensee shall within the
thirty-day period remove all of its attachments from the pole to be
abandoned. If the City abandons any jointly used pole due to the obsolescence
of the pole, it shall give the licensee notice in writing to that
effect at least thirty (30) days prior to the date on which it intends
to abandon such pole, and the licensee shall within the thirty-day
period request in writing permission to remain on such pole. In the
event permission is granted, the licensee shall assume all responsibility
for the maintenance and upkeep of the abandoned pole.
B.
A licensee may remove its attachments from the City's poles
following notification in writing to the City. Removal of attachments
shall not affect the terms of its license except that if a licensee
removes attachments from all City poles and/or ceases to provide its
services within the City, then the license issued under this Article
shall automatically terminate effective the day after the removal
of the last attachment by the licensee.
[R.O. 2013 § 550.270; Ord. No.
10-66 § 1, 11-8-2010]
A.
The time frame for correcting NESC violations discovered by the City
shall be as follows:
1.
Critical violations that are life-threatening or threaten imminent
danger to persons or property shall be corrected immediately upon
written notice.
2.
Major violations that are substantial but not critical shall
be repaired as soon as possible but no later than thirty (30) days
after written notice.
3.
Technical violations that are technical and not critical or
major shall be repaired as soon as possible but no later than one
hundred eighty (180) days after written notice.
4.
If licensee fails to correct any NESC violation within the time
frame set forth in this Section, then the City shall correct the violation.
The licensee shall pay to the City all costs associated with the correction
of the violation.
[R.O. 2013 § 550.280; Ord. No.
10-66 § 1, 11-8-2010]
The licensee shall promptly pay the City for all charges for
work and materials expended by the City in correction with the City's
enforcement of the licensee's requirements under this Article.
The licensee shall provide to the City a performance bond in an amount
set by the City to secure the payment of any charges or expenses which
the City may incur in the enforcement of the requirements of the licensee
under this Article. In the event that any licensee objects to the
amount of the performance bond, the City shall provide a hearing before
the City administrator or his/her designee at which hearing the licensee
may provide evidence of the appropriate amount and nature of its performance
bond.
[R.O. 2013 § 550.290; Ord. No.
10-66 § 1, 11-8-2010]
The licensee shall exercise due care and take appropriate safety
precautions necessary or advisable for the prevention of accidents
and shall comply with all laws and regulations applicable to the work
to be performed under its license. At the City's request, the
licensee shall carry insurance approved by the City naming the City
as an additional insured.
[R.O. 2013 § 550.300; Ord. No.
10-66 § 1, 11-8-2010]
The licensee shall submit to the director of electric utilities
of the City detailed plans and specifications showing its plan for
the method of attachment to the City's poles and rights-of-way.
The electric superintendent of the City shall approve the plans and
specifications submitted by the licensee. These plans and specifications
may be modified from time to time with the approval of the electric
superintendent of the City. Such plans and specifications submitted
to the City by the licensee shall be available for inspection during
normal business hours.
[R.O. 2013 § 550.310; Ord. No.
10-66 § 1, 11-8-2010]
A.
No licensee shall assign, transfer or sublet any part of its licensed
privileges under this Article without the City's prior written
consent except that the City shall not require its consent in the
event the licensee assigns its privileges to an affiliated entity
which controls or is controlled by or under common control with the
licensee or to any successor entity that acquires ownership in the
licensee.
B.
In the event an assignment takes effect under Subsection (A) of this Section, then all conditions in the license shall bind the successors and assigns of the original licensee.
C.
A request by any licensee for consent to assignment or transfer shall
set forth, in writing, the details of the proposed transfer, including
the name, business and financial condition of the prospective assignee
and any other information requested by the City, in writing, as well
as the prospective assignee's signed written acceptance of all
of the terms, conditions and limitations of the license.
[R.O. 2013 § 550.320; Ord. No.
10-66 § 1, 11-8-2010]
A.
For the purposes of making pole rental payments as described in Section 515.330, the number of poles used at any time shall be determined as being equal to the number of joint use poles determined by the last complete field inventory conducted by the City and adjusted for any additional attachments or removals made since the completion of the last field inventory.
B.
At any time, upon the written request of the licensee, a complete
field inventory of all joint use poles will be conducted provided
that all costs associated with the requested field inventory shall
be borne by the licensee.
[R.O. 2013 § 550.330; Ord. No.
10-66 § 1, 11-8-2010]
[R.O. 2013 § 550.340; Ord. No.
10-66 § 1, 11-8-2010]
A.
In order to enforce the provisions in this Article, the City may:
1.
Require the licensee to repair, replace or remove any violation
at the licensee's sole expense.
2.
In the event the City, in its absolute discretion, determines
that any violation is an immediate threat to public safety or to the
structural integrity of the City's system, then the City may
repair, replace or remove any violation at the licensee's sole
expense.
