[R.O. 1998 § 540.010; Ord. No. 3262, 4-4-2022[1]]
Notwithstanding anything herein to
the contrary, the City of St. Ann retains its authority to charge
degradation, rental and other fees relating to the public rights-of-way
as such authority existed prior to May 1, 2001, and as permitted by
Section 67.1846, RSMo.
[R.O. 1998 § 540.020; Ord. No. 3262, 4-4-2022]
This Chapter shall be known and may
be cited as the "Rights-of-Way Usage Code."
[R.O. 1998 § 540.030; Ord. No. 3262, 4-4-2022]
For the purposes of this code, the
following terms, phrases, words and abbreviations shall have the meanings
given herein, unless otherwise expressly stated or required by context.
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. To the extent applicable,
the use of terms defined under applicable Federal law, are intended
to have the same meaning as those defined under Federal law, unless
otherwise expressly stated or required by context.
A facility consisting of any device, array or antenna of
any kind, including, but not limited to, whip antennas, panel antennas
and satellite antennas, that transmits or receives electromagnetic
signals to deliver microwave, cellular, digital, broadcast or other
non-wire voice, data or video communications services through the
airwaves above the rights-of-way and which attach to either pre-existing
or subsequently approved facilities or structures.
A compensation fee approved by the Board of Aldermen and
established in the City's pertinent schedule of fees from time to
time for the rent of a portion of the rights-of-way by a person having
facilities within the rights-of-way. The antenna fee shall be calculated
on the number of antennas located within the ROW and shall not include
any linear foot fee, but a ROW user may be subject to both an antenna
fee and a linear foot fee.
The person applying for and receiving a ROW permit for ROW
work.
That form which an applicant must use to obtain a ROW permit
to conduct ROW work.
The Governing Body of the City.
The City of St. Ann, Missouri, and its agencies, departments,
agents and employees acting within their respective areas of authority.
The City Administrator of the City or such other person designated by the City to hear appeals as provided in Section 540.110(B) hereof.
Any facilities, street light poles, lighting fixtures, electroliers
or other structures or equipment located within the public rights-of-way
and owned by the City.
The accelerated depreciation of a portion of the rights-of-way
caused by excavation in or disturbance of any paved portion of the
rights-of-way resulting in the need to repair or maintain such portion
of the rights-of-way earlier than would be required if the excavation
or disturbance had not occurred (excluding concrete slabs or curbs
which shall be replaced rather than restored).
The fee charged by the City to recover the costs associated
with a decrease in the useful life of any paved rights-of-way caused
by excavation or other disturbance. The degradation fee shall not
apply to concrete slabs or curbs which shall be replaced rather than
restored.
The City's Director of Public Services or such other person
designated to administer and enforce this code.
Includes, but is not limited to, ROW work made necessary
by exigent circumstances to repair, control, stabilize, rectify or
correct an unexpected or unplanned outage, cut, rupture, leak or any
other failure of a facility when such failure results or could result
in danger to the public or a material delay or hindrance to the provision
of service.
A network or system or any part thereof used for providing
or delivering a service and consisting of one (1) or more lines, pipes,
irrigation systems, wires, cables, fibers, conduit facilities, poles,
vaults, pedestals, boxes, appliances, antennas, transmitters, radios,
towers, gates, meters, appurtenances or other equipment.
Any County, Township, City, Town, Village, school district,
library district, road district, drainage or levee district, sewer
district, water district, fire district or other municipal corporation,
quasi-municipal corporation or political subdivision of the State
or any other State, any agency or instrumentality of the State or
any other State or the United States and any cooperative district
allowed by law acting in a governmental rather than a proprietary
capacity.
A compensation fee approved by the Board of Aldermen and
established in the City's pertinent schedule of fees from time to
time for the rent of a portion of the rights-of-way by a person having
facilities within the rights-of-way. The linear foot fee shall be
calculated on the length, in linear feet, of the rights-of-way in
or on which facilities are located and shall not include any antenna
fee, but a ROW user may be subject to both a linear foot fee and an
antenna fee.
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:
City facilities or the City's property
other than ROW, such as City-owned or operated buildings, parks or
other similar property;
Airwaves used for cellular, non-wire
telecommunications or broadcast services;
Easements obtained by ROW users on
private property;
Railroad rights-of-way or ground
used or acquired for railroads, or facilities owned and used by the
City for the transmission of one (1) or more services.
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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.
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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.
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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.
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Providing or delivering an economic good or an article of
commerce, including, but not limited to, gas, telephone, cable television,
Internet, open video systems, video services, alarm systems, steam,
electricity, water, telegraph, data transmission, petroleum pipelines,
sanitary or storm water sewerage or any similar or related service,
to one (1) or more persons located within or outside of the City by
use of facilities located within the rights-of-way.
A person having facilities within the rights-of-way, which
such facilities consist primarily of antennas, transmitters, towers
or other appliances or equipment used to deliver cellular, broadcast,
data transmission or other non-wire communications service through
the airwaves above the rights-of-way and which attach to either pre-existing
or subsequently approved facilities or structures.
In, along, under, over or across rights-of-way.
[R.O. 1998 § 540.040; Ord. No. 3262, 4-4-2022]
A.
Registration Required.
1.
Any person desiring to become a person
having facilities within the ROW and any person having facilities
within the ROW must register with the City.
2.
Any person having or applying for a cable franchise from the City under Chapter 635 of the City's Municipal Code must register hereunder. Such a person maintains all rights, privileges and obligations established by its cable franchise and shall also remain subject to Chapter 635 of the City's Municipal Code. To the extent that any term of such person's cable franchise conflicts with the Rights-of-Way Usage Code, the terms of the cable franchise shall prevail. To the extent that Chapter 635 of the City's Municipal Code conflicts with the Rights-Of-Way Usage Code, the more stringent shall prevail.
3.
Any person that provides or intends to provide video programming by means of an open video system pursuant to certification approved by the Federal Communications Commission must register hereunder but shall also remain subject to the applicable provisions of Chapter 635 of the City's Municipal Code. To the extent that Chapter 635 of the City's Municipal Code conflicts with the Rights-Of-Way Usage Code, the more stringent shall prevail.
4.
Within ninety (90) days of the effective
date of this code, any person having facilities within the ROW pursuant
to a duly issued, lawful and applicable license or franchise shall
register hereunder. Such person maintains all rights, privileges and
obligations established by its license or franchise. To the extent
that any terms of such person's license or franchise conflicts with
the Rights-of-Way Usage Code, the terms of the license or franchise
shall prevail.
B.
Effectiveness Of Registration. Registration
hereunder by an eligible person shall remain effective for so long
as that person remains eligible, unless terminated by the person or
the City hereunder. Any registration of an ineligible person shall
be void from the date of ineligibility.
C.
Registration Characteristics.
1.
A valid registration hereunder authorizes
the issuance of ROW permits to the registered person in accordance
with this code. It does not expressly or implicitly authorize ROW
work without a ROW permit or work on private property without owner
consent through eminent domain or otherwise (except for use of compatible
easements pursuant to Federal law) or to use publicly or privately
owned facilities without a separate agreement with the owners.
2.
A valid registration hereunder shall
not eliminate the need to obtain any franchise, license or permit
for the privilege of transacting and carrying on a business within
the City as may be generally required by the ordinances and laws of
the City other than this code or for attaching devices to poles or
other structures, whether owned by the City or other person.
3.
A valid registration grants no exclusive
or vested rights to occupancy within the rights-of-way other than
those granted by this code or the administration thereof.
4.
The right to obtain ROW permits shall
be subordinate to any prior lawful occupancy of the rights-of-way
and the City reserves the right to designate where facilities are
to be placed within the rights-of-way as provided herein to the extent
allowed by law.
D.
Registered Person Subject To Other Laws.
1.
A person required to register shall
at all times be subject to and shall comply with all applicable Federal,
State and local laws and shall at all times be subject to all lawful
exercise of the Police power of the City, including, but not limited
to, all powers regarding zoning, supervision of construction, assurance
of equal employment opportunities, control of rights-of-way and consumer
protection.
2.
Registration hereunder shall not
deprive any person of any rights or obligations imposed by any previously
existing franchise, license or contract, nor shall it impose any obligations
on any such person additional to those included in any previously
existing franchise, license or contract, except to the extent allowed
by law.
3.
Nothing in this code shall be construed
to prohibit the grant or renewal of any franchise by the City as may
be allowed or required by State or Federal law.
4.
Nothing in this code shall be construed
or deemed to supersede any applicable State or Federal law or any
applicable regulation issued by a State or Federal agency, including,
but not limited to, the State Public Service Commission and the Federal
Communications Commission. In the event of any conflict between such
laws or regulations and this code, the applicable State or Federal
law or regulation shall apply.
E.
Failure To Register. Any person who has
not registered as required under this code shall nonetheless be subject
to all requirements of this code, including, but not limited to, its
provisions regarding ROW permits, construction and technical standards
and fees, except as otherwise provided herein. In its discretion and
to the extent allowed by law, the City at any time may:
1.
Require such person to register within
thirty (30) days of receipt of a written notice to such person from
the City that registration is required;
2.
Require such person to remove its
facilities from the rights-of-way and restore the affected area to
a condition satisfactory to the City within a specific time period;
3.
Direct City personnel to remove the
facilities from the rights-of-way and restore the affected area to
a condition satisfactory to the City and charge the person the costs
therefor, including by placing a lien on the person's property as
provided in connection with abating nuisances; or
4.
Take any other action it is entitled
to take under applicable law. Additionally, such person may also be
subject to the imposition of penalties as provided herein.
[R.O. 1998 § 540.050; Ord. No. 3262, 4-4-2022]
A.
Requirements And Processing.
1.
Registration shall be accomplished
in the form of a letter to the City filed with the Director.
2.
To be valid, the registration letter
must be signed by an authorized representative of the registering
person, contain all required information and be accompanied by a filing
fee approved by the Board of Aldermen and established in the City's
pertinent schedule of fees.
3.
At any time the City determines a
registration letter does not comply with this code, the City may return
it to a point of contact identified therein with a written explanation
of the reason(s) for such return. Filing fees shall not be refunded.
Failure to return a registration letter shall not validate an incomplete
or otherwise invalid or void registration letter.
B.
Contents Of Registration Letter. A registration
letter shall contain or be accompanied by the information required
herein. All such information received by the City shall remain confidential
insofar as permitted by the State Open Meetings Law and other applicable
State and Federal law. The information required shall include:
1.
Name, address and legal status of
the registering person;
2.
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 registering person
so as to make contact possible at any time [i.e., twenty-four (24)
hours per day, seven (7) days per week];
3.
Description of the general uses made
or to be made of the facilities located within the rights-of-way by
the registering person, e.g., provision of service(s) within or outside
of the City, transfer or lease of facilities (or portion thereof,
including bandwidth) to another person, use of the facilities to transverse
the City, construction of facilities to be used at a later date, etc.;
4.
Description of all services provided
or to be provided by the registering person to any person located
in the City through facilities located within the rights-of-way and
an explanation of the registering person's legal qualifications to
provide such services, including copies of supporting documentation
such as relevant certificates or orders from the Federal Communications
Commission, State Secretary of State and/or State Public Service Commission
or pertinent rules or Statutes;
5.
Name and address of any and all other
persons providing service(s) to any person located in the City through
the registering person's facilities located within the rights-of-way
and a general description of such service(s); and
6.
Current certificates of insurance
in accordance with this code.
C.
Notice Of Change. Within thirty (30) days of any changes in the information set forth in or accompanying its registration letter, a registered person shall notify the City of any such change. Such notices shall be submitted and processed in the same manner as an initial registration, except the filing fee established in Section 540.050(A)(2) shall not be required.
D.
Registration Index. The Director shall
maintain an index of all registered persons and their point(s) of
contact.
E.
Termination Of Registration.
1.
The City shall have the right to
terminate a registration for a substantial and ongoing failure to
comply with this code or other applicable law or for defrauding or
attempting to defraud the City. To invoke the provisions of this Section,
the City Administrator shall give the person written notice of such
intent. If, within thirty (30) calendar days following such written
notice from the City, the person has not completed corrective action
or corrective action is not being actively and expeditiously pursued
to the satisfaction of the City Administrator, the City Administrator
may commence a proceeding to consider terminating the person's registration
giving written notice of the reasons therefor.
2.
Prior to terminating a registration,
the City Administrator shall hold a hearing, after giving at least
ten (10) calendar days' notice to the person, at which time the person
shall be given an opportunity to be heard. Following the hearing,
the City Administrator may determine whether to terminate the registration
based on the information presented at the hearing and other information
of record. If the City Administrator determines to terminate a registration,
the decision shall be in writing setting forth the reasons therefor.
The City Administrator may make such decision conditional on a person's
failure to resolve outstanding problems or take appropriate steps
to resolve such problems within a specific period of time. A copy
of such decision shall be provided to the person.
3.
Once a registration has been terminated
by the City Administrator, the person may not register again except
upon express written approval by the City Administrator, which approval
shall be withheld absent clear and convincing evidence that the person
has remedied all previous violations and is in full compliance with
all laws and will not in the future violate this code or defraud the
City.
[R.O. 1998 § 540.060; Ord. No. 3262, 4-4-2022]
A.
ROW Permit Requirements.
1.
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.
2.
No person desiring to become a person
having facilities within the ROW and no person having facilities within
the ROW, who has failed to register with the City, shall be granted
a ROW permit, except as otherwise provided or allowed by ordinance,
franchise, license or written contract with the City.
3.
All applications for ROW permits
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/her discretion
to be necessary and consistent with the provisions of this code and
to accomplish the purposes of this code. Each application shall at
minimum contain the following information for the proposed ROW work,
unless otherwise waived by the Director:
a.
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;
b.
If different from the applicant,
the name of the person on whose behalf the proposed work is to be
performed;
c.
A description of the proposed work,
including a conceptual master plan and, when applicable, an engineering
site plan or other technical drawing showing the nature, dimensions
and location of the applicant's proposed work and 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;
d.
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;
e.
If the applicant is, or is acting
on behalf of, a person having facilities within the ROW or a person
desiring to become a person having facilities within the ROW, verification
that the applicant or such person has registered with the City and
that the information included in that registration is accurate as
of the date of the application;
f.
Copies of any required certificates
of insurance or performance/maintenance bonds; and
g.
For wireless transmission providers:
(1)
Technical information,
including:
(a)
A detailed description
of the physical dimensions and appearance of the proposed facilities;
(b)
The chemical composition
of any battery contained within the proposed facilities;
(c)
Any hazardous material
contained within the proposed facilities;
(d)
The potential for interference
with the facilities of other wireless transmission providers;
(e)
The potential for exposure
to electromagnetic fields; and
(f)
Such other information as may be reasonably required by the Director and consistent with Section 540.060(B)(4) hereof.
(2)
Certification, by a
duly authorized representative of any person owning a facility, utility
pole or other structure within the ROW upon which the applicant's
facility is to be attached or secured, that:
4.
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.
5.
Each such application shall be accompanied
by the following payments:
a.
The ROW permit and inspection fees
shall be determined by the Director, consistent with the fees set
forth in this Chapter or the Schedule of Fees maintained in the City
Clerk's office, as applicable. All fees charged under this Chapter
are based on the City's costs to manage the City's rights-of-way.
An application fee, as approved by the Board of Aldermen and established
in the City's pertinent Schedule of Fees, shall be assessed to cover
the cost of processing the application. Any ROW permit, inspection
or application fees paid by an applicant, are nonrefundable even if
a ROW permit is subsequently revoked;
b.
Any applicable degradation fee, as
approved by the Board of Aldermen and established in the City's pertinent
Schedule of Fees, but the Director may waive the degradation fee for
any excavation in the rights-of-way undertaken within twelve (12)
calendar months immediately preceding the scheduled improvement or
reconstruction of such rights-of-way; and
c.
Any other amounts otherwise due to
the City from the applicant, including, but not limited to, prior
delinquent permit fees and costs, delinquent rental fees and any loss,
damage or expense suffered by the City because of the applicant's
prior excavations of 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 or beyond the ability of the applicant to control.
B.
ROW Permit Application Review And Determination.
1.
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 of a completed application. Unless the application is denied pursuant to Subsection (B)(8) hereof, the Director shall issue a ROW permit upon determining that the applicant:
a.
Has submitted all necessary information;
b.
Has paid the appropriate fees; and
c.
Is in full compliance with this code
and all other City ordinances.
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In order to avoid excessive processing
and accounting costs to either the City or the applicant, the Director
shall have authority to establish procedures for bulk processing of
applications and periodic payment of fees.
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2.
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 code. 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:
a.
Shall not increase expenses by more
than ten percent (10%) of the applicant's costs for the work as proposed;
b.
Shall not result in a decline of
service quality; and
c.
Shall be competitively neutral and
non-discriminatory.
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The Director shall justify to the
applicant that the required alternative is reasonable and necessary.
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3.
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.
a.
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.
b.
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)(3)(a) or any other provision of this code 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 code, 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.
c.
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.
d.
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.
4.
In addition to the foregoing and
in addition to any other standards or requirements imposed by this
code with regard to an application filed by a wireless transmission
provider, the Director shall ensure compliance with the following
provisions:
a.
The design, location and nature of
all facilities shall be subject to the review and approval of the
Director as provided herein. Such review shall be non-discriminatory
and competitively neutral and approvals shall not be unreasonably
withheld.
b.
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 proposed
equipment. Facilities shall be located in such a manner as to reduce
or eliminate their visibility. Screening may be appropriate and any
screening materials shall be maintained and replaced as needed.
c.
Facilities shall comply with the regulations established in Chapter 400 of the Municipal Code, being the City's Zoning Ordinance, to the extent such regulations reasonably apply. If the facilities consist of or require a tower, otherwise defined as an antenna support structure in Article XVII of Chapter 400, then the applicant shall obtain an administrative permit or conditional use permit, whichever is applicable, as provided in Sections 400.950 and 400.995 of said Chapter.
d.
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.
e.
If the application of this Section 540.060(B)(4) 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 such alternatives may exceed the cost increase limitation established by Section 540.060(B)(2) and the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
f.
The grant of a ROW permit shall not
eliminate the need of a wireless transmission provider to have obtained
a license, permit or other agreement for attaching facilities to other
facilities, poles or other structures, whether owned by the City or
other person.
g.
Nothing in this code shall be construed
to require that the City grant wireless transmission providers access
to any City facilities or the City's proprietary property, but the
City may enter into separate agreements with wireless transmission
providers to allow such access. Such agreements may include the payment
of reasonable attachment fees for use of City facilities or other
City property. All such agreements shall be non-discriminatory and
competitively neutral among wireless transmission providers.
5.
Each ROW permit shall include:
a.
Projected commencement and termination
dates or, if such dates are unknown at the time the ROW permit is
issued, a provision requiring the ROW user to provide the Director
with reasonable advance notice of such dates once they are determined;
b.
Length of affected rights-of-way,
number of road crossings and identification and description of any
pavement or curb cuts included in the work, if applicable;
c.
Information regarding scheduling
and coordination of work, if necessary;
d.
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;
e.
An acknowledgement and representation
by the applicant to comply with the terms and conditions of the ROW
permit and this code; and
f.
Such conditions and requirements
as are deemed reasonably necessary by the Director:
(1)
To protect structures
and other facilities in the rights-of-way from damage;
(2)
For the proper restoration
of such rights-of-way, structures and facilities;
(3)
For the protection of
the public and the continuity of pedestrian and vehicular traffic;
and
(4)
For the protection of the public health, safety and welfare, including any conditions or requirements resulting from the application of Section 540.060(B)(4) hereof.
6.
An applicant receiving a ROW permit
shall promptly notify the Director of any material changes in the
information submitted in the application. The Director may issue a
revised ROW permit or require that the ROW user reapply for a ROW
permit in accordance with all requirements of this code.
7.
ROW permits inure to the benefit
of the applicant and the rights granted thereunder may not be assigned
or transferred to any other person without the written consent of
the Director.
8.
The Director may deny an application,
if denial is deemed to be in the public interest, for the following
reasons:
a.
Delinquent fees, costs or expenses
owed by the applicant;
b.
Failure to provide information required
by the application or this code;
c.
The applicant being in violation
of the provisions of this code or other pertinent and applicable City
ordinances;
d.
Failure to return the ROW to its
previous condition under previously issued ROW permits or after prior
excavations by the applicant;
e.
For reasons of environmental, historic
or cultural sensitivity, as defined by applicable Federal, State or
local law, of land within the scope of the application;
f.
For an applicant's refusal to comply with alternative ROW work methods or locations required by the Director pursuant to Section 540.060(B)(2) hereof; and
g.
For any other reason to protect the
public health, safety and welfare, provided that:
h.
The ROW work requires the excavation
of paved public rights-of-way which were constructed or reconstructed
in the preceding five (5) years or that have a pavement condition
index (PCI) greater than eighty-five (85), as determined by the Director.
9.
For the purposes of Section 540.060(B)(7), the term "applicant" shall also include, when applicable, the person on whose behalf the applicant is to perform the ROW work. The Director may consider good faith disputes with, or circumstances beyond the control of, the applicant or such person in determining whether to grant or deny the application.
C.
ROW Permit Revocation And Code Violation
Prosecution.
1.
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 ROW permit. 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:
a.
A material violation of a provision
of the ROW permit;
b.
An evasion or attempt to evade any
material provision of the ROW permit or the perpetration or attempt
to perpetrate any fraud or deceit upon the City or its residents;
c.
A material misrepresentation of fact
in the ROW permit application;
d.
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
e.
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 codes, industry
construction standards or the City's pertinent and applicable ordinances,
including, but not limited to, this code, provided that City standards
are no more stringent than those of a national safety code.
2.
Any breach of the terms and conditions of a ROW permit shall also be deemed a violation of this code and in lieu of revocation the Director may initiate prosecution of the ROW user for such violation as provided in Section 540.100(H) hereof.
[R.O. 1998 § 540.070; Ord. No. 3262, 4-4-2022]
A.
Jurisdiction, Inspection And Stop-Work
Orders.
1.
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.
2.
The Director shall have full access to all portions of the ROW work and may issue stop work orders and corrective orders to prevent substandard or unauthorized work as established in Subsection (F) hereof. Such orders:
a.
May be delivered personally or by
certified mail to the address listed on the application for the ROW
permit, the person in charge of the construction site at the time
of delivery or the registered person's point of contact;
b.
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
c.
May be enforced by equitable action
in the Circuit Court of the County and in such case the person involved
in the work shall be liable for all costs and expenses incurred by
the City in enforcing such orders, including reasonable attorney's
fees in addition to any and all penalties established in this code.
B.
Installation Of Facilities.
1.
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. Such permission
may be granted through a ROW permit when other similar facilities
exist above ground or when physical 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.
2.
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.
3.
In the case of new construction or
property development, the developer or property owner shall give to
all persons registered hereunder reasonable written advance notice
of the particular date on which open trenching will be available for
installation of facilities. Costs of trenching and easements required
to bring facilities within the development shall be borne by the developer
or property owner; except that if the facilities are not installed
within five (5) working days of the date the trenches are available
as designated in the notice given by the developer or property owner,
then once the trenches are thereafter closed, the cost of new trenching
shall be borne by the person installing the facilities.
C.
Relocation Of Equipment And Facilities.
1.
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, relay 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 owner of the construction equipment or
facilities prior to taking such action, but the inability to do so
shall not prevent same. Thereafter, the City shall notify the owner
of the construction equipment or facilities as soon as practicable.
2.
Should the grades or boundaries of
the rights-of-way be changed at any time, a ROW user shall, if necessary,
at its own cost and expense, relocate or change its facilities so
as to conform with the new grades or boundaries. This requirement
shall not apply when the ROW user holds a valid easement that existed
prior to the date when the area in question became rights-of-way.
The ROW user shall bear the burden of establishing to the City's satisfaction
the fact of the pre-existing easement.
3.
At the City's direction, all facilities
shall be moved underground and the cost shall be solely the obligation
of the owners (or as otherwise allowed or required by law).
4.
Any ROW user shall, on the request
of the City or any person authorized by the City, temporarily relocate
facilities to permit the moving of buildings or oversized vehicles.
5.
Any ROW user shall, within a reasonable
time specified by the City, protect, support, disconnect, relocate
or remove, at its own expense, construction equipment or discrete
portions of its facilities when required by the City by reason of
traffic conditions; public safety; rights-of-way construction, maintenance
or repair (including resurfacing or widening); change of rights-of-way
grade; construction, installation or repair of sewers, drains, water
pipes, power lines, signal lines, tracks or any type of government-owned
communications system, public work or improvement or any government-owned
utility; rights-of-way vacation; or for any other purpose where the
convenience of the City would be reasonably served thereby.
6.
If any action under Subsection (C)(4) or (5) is reasonably required of a ROW user to accommodate a person or another ROW user, the ROW user shall, after reasonable advance written notice, take action to effect the necessary actions requested and the actual cost, reasonably incurred, of such actions shall be paid by the person or ROW user upon whose behalf the action is requested. The ROW user taking such action shall have the authority to require such payment in advance.
7.
Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (E) hereof.
8.
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.
D.
Property Repair And Alterations.
1.
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 the
damaged property. Such repair or replacement shall be completed within
a reasonable time specified by the Director and to the Director's
satisfaction.
2.
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.
E.
Removal, Abandonment And Transfer Of Facilities.
1.
If a registration is terminated,
the City may require that the person having facilities within the
ROW remove its facilities from the rights-of-way at the person's expense.
In removing its facilities the person shall obtain a ROW permit and
restore any excavation that shall be made by it as required by this
code. The liability, indemnity, insurance and bonding requirements
as provided 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 this Subsection and
the requirements of this code.
2.
If the person having facilities within
the ROW fails to remove the facilities and restore the ROW within
a reasonable period of time, the City may, to the extent permitted
by law, have the removal done at the person's expense.
a.
Alternatively, the City may permit
the abandonment, without removal, of any facilities if the Director
determines that abandonment will not result in interference with the
use or maintenance of the rights-of-way or if ownership of the facilities
is transferred as provided herein.
b.
The City may decide that the ownership
of the facilities shall revert to the City or to such person as directed
by the City. In either case the owner of the facilities, if required
by the City and permitted by law, 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
reverting to the City.
3.
Facilities are considered abandoned
if a person having facilities within the ROW:
a.
Discontinues use of any facility
for a continuous period of twelve (12) months;
b.
Has installed the facilities without
complying with the requirements of this code; or
c.
Declares the facilities abandoned
or if such facilities are:
(1)
No longer in active
use;
(2)
No longer capable of
being used for the same or similar purpose for which the facilities
were installed; or
(3)
Are physically disconnected
from any other facility that is in use or in service, the facilities
may be deemed abandoned.
|
If such abandonment occurs, the City may require the removal of the facilities, remove the facilities at the expense of the person having facilities within the ROW, allow the abandonment of the facilities without removal or require the transfer of the facilities, all as provided in this Subsection (E).
|
4.
The City shall not remove any facilities
unless the existence of such facilities prevents or significantly
impairs the use, repair, excavation or construction of the ROW. The
City shall not remove or seek to possess or transfer the facilities
until thirty (30) days have passed following written notice to the
person having facilities within the ROW of the City's intent to so
act. The City may choose not to act on good cause shown by the person
having facilities within the ROW.
F.
Standards For ROW Work.
1.
Except for emergency ROW work as provided in Section 540.060(A)(1), 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.
2.
If at any time it appears that the
duration or scope of the ROW work shall differ 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 code.
3.
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.
4.
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, including control of its own
vehicles, to the area surrounding the work as determined by the Director.
The City has the right to determine, in its sole and absolute discretion,
which routes shall be used by the ROW user for hauling, trucks and
equipment.
5.
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.
6.
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 unless the following occurs:
a.
The ROW user must receive the prior
approval of the Director and the City's Chief of Police;
b.
The ROW user must notify the appropriate
Fire District prior to any such street closure;
c.
Upon completion of the ROW work,
the ROW user shall notify the Director and the City's Chief of Police
before traffic is returned to its normal flow, so that any necessary
adjustments may be made; and
d.
When flagmen are deemed necessary
by the Director, they shall be provided by the ROW user at its own
expense. Through traffic shall be maintained with the use of detours,
if deemed feasible by the Director. In instances where the Direct
deems detours to be necessary, the Director shall designate detour
routes. The City shall maintain roadway surfaces of existing roadways
designated as detours without expense to the ROW user, but where there
are no existing roadways, the ROW user shall construct and maintain
such detours in conformity with the specifications provided by the
Director. The ROW user shall be responsible for any excess wear and
tear, or unnecessary damage caused to roadways due to the operation
of its equipment.
7.
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 codes and
laws and accepted industry practices, all as hereafter may be amended
or adopted. In the event of a conflict among codes and standards,
the most stringent code or standard shall apply (except insofar as
that code or standard, if followed, would result in facilities that
could not meet requirements of Federal, State or local law).
8.
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.
9.
All facilities shall be of good and
durable quality.
10.
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-way,
or legal rights of any property owner, including the City, or unnecessarily
hinder or obstruct pedestrian or vehicular traffic.
11.
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.
12.
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 code. A ROW user:
a.
Must ensure that contractors, subcontractors
and all employees performing ROW work are trained and experienced;
b.
Shall be responsible for ensuring
that all work is performed consistent with the ROW permit and applicable
law;
c.
Shall be fully responsible for all
acts or omissions of contractors or subcontractors;
d.
Shall be responsible for promptly
correcting acts or omissions by any contractor or subcontractor; and
e.
Shall implement a quality control
program to ensure that the work is properly performed.
13.
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.
14.
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.
15.
Street crossings will be bored at
the direction of the Director.
16.
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 above ground 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.
17.
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.
18.
If the application of this Subsection excludes locations for above ground facilities, to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director shall cooperate in good faith with the applicant to attempt to find suitable alternatives, but such alternatives may exceed the cost increase limitation established by Section 540.060(B)(2), and the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
G.
Restoring And Maintaining The Rights-Of-Way.
1.
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, in accordance with the standards of Subsection (F) hereof and the 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.
2.
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.
3.
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
and performed the restoration. During this period the ROW user shall,
upon notification from the Director, correct all restoration work
to the extent necessary as required by the Director. Said work shall
be completed within a reasonable time, not to exceed thirty (30) calendar
days from receipt of the Director's notice unless otherwise permitted
by the Director. If a ROW user fails to restore the ROW within the
time specified, the City may perform the work and the ROW user shall
be responsible for reimbursing the City's reasonable actual restoration
costs within thirty (30) days of invoice. The Director may extend
the cure period on good cause shown.
H.
Mapping Requirements. 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 AUTOCAD.DXF,
AUTOCAD.DWG, MICROSTATION.DGN (or comparable as allowed by the Director)
automated formats or in hard copy otherwise.
I.
Performance And Maintenance Bonds.
1.
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 in the same manner as provided in Section 540.070(G)(3) hereof. 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 the provisions of this code.
2.
In the event a ROW user fails to
complete the ROW work in a safe, timely and competent manner or if
the completed restorative work fails 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.
3.
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 eliminate the bond.
4.
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 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."
5.
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).
J.
Miscellaneous.
1.
Upon failure of a ROW user to commence,
pursue or complete any ROW work required by law or by the provisions
of this code 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.
2.
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.
3.
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.
4.
Nothing in this code 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.
[R.O. 1998 § 540.080; Ord. No. 3262, 4-4-2022]
A.
Persons subject to rental fees as provided in Section 540.090 hereof shall maintain sufficient records to document accurate payment of such rental fees, including, but not limited to, such plans, records or maps showing the approximate location and length of all facilities located within the rights-of-way.
B.
The City shall have the right to inspect
at a location in the metropolitan St. Louis area all records that
are reasonably necessary to monitor compliance with the terms of this
code. A person having facilities within the ROW shall be responsible
for collecting and producing such information and, by registering,
affirms that it will do so.
C.
The Director may require provision or retention
of additional information, records and documents from time to time
as may be reasonably necessary or appropriate to the performance of
any of the rights, functions or duties of the City in connection with
this code.
D.
All records and information referenced
herein shall be subject to inspection and copying by the City, at
no cost to the City, to ensure code compliance. All records and information
received by the City shall remain confidential insofar as permitted
by the State Open Meetings Law and other applicable State and Federal
laws. If any records cannot be copied for security or other reasons,
the person having facilities within the ROW shall nonetheless make
such records available for City inspection and shall reimburse the
City for all reasonable costs incurred by the City in inspecting those
records.
E.
If any records are too voluminous, then
the person may request that the inspection take place at some other
location outside the metropolitan St. Louis area, provided that such
person must pay all reasonable travel expenses incurred by the City
in inspecting those records.
[R.O. 1998 § 540.090; Ord. No. 3262, 4-4-2022]
A.
Finding And Intent. The City finds that
rights-of-way are valuable public property acquired and maintained
at great expense to taxpayers. The City further finds that the grant
of permission to locate facilities within the rights-of-way is a valuable
property right and eliminates the need to invest substantial capital
in the private location of such facilities. Any person that places
facilities within the rights-of-way after the effective date of this
code and any person that leaves existing facilities within the rights-of-way
more than ninety (90) days after the effective date of this code shall
be deemed to have agreed to pay rental compensation for such use of
the rights-of-way as established herein. It is the intent of this
Section that the rental fees provided for herein be applied to and
be paid by only those persons having facilities within the rights-of-way.
B.
Payment To City.
1.
Any person having facilities within
the ROW shall pay to the City annual rent consisting of, depending
on the facility, linear foot fees and antenna fees for the use of
the affected rights-of-way for the applicable facilities.
2.
If a person having facilities within
the ROW has or is permitted to install separate facilities within
the ROW, then for the purpose of linear foot fees, such separate facilities
shall be treated as discrete facilities, each of which shall be subject
to the compensation requirements of this Section. The term "separate
facilities" means any existing or new facilities under common ownership
or control that occupy different cross-sectional areas within the
same linear portion of the ROW. Separate facilities include any such
facilities that require distinct and separate ROW access for purposes
of installation, change, replacement, relocation, removal, maintenance
or repair.
C.
Not A Tax Or In Lieu Of Any Other Tax Or
Fee — Credit.
1.
The rental fees are not a tax, license
or fee subject to any requirement of voter approval, but rather constitute
a charge for special and individualized use of public property.
2.
Rental fees are in addition to all
other fees and all taxes and payments that a person may be required
to pay under any Federal, State or local law or agreement, including
any applicable property and amusement taxes and any payment for attachment
fees to install facilities on City facilities or other City proprietary
property.
3.
To promote economic development, any person obligated to pay rental fees shall be granted a credit for all sums paid to the City by such person for applicable business license fees as provided in Chapter 605 of the City Code, as amended, or similar gross receipts taxes or fees up to the amount of the rental fees. In no event shall such a credit result in a refund from the City.
D.
Payments.
1.
The rental fees shall be paid quarterly
to the City and shall commence as of the later of the effective date
of this code or the first day on which a person having facilities
within the ROW places facilities within the rights-of-way. The City
shall be furnished at the time of each payment with a statement certified
by the payer's chief financial officer or comparable officer or by
an independent certified public accountant reflecting the total amount
of rental compensation for the payment period. Payments shall be made
to the City no later than forty-five (45) days following the end of
each calendar quarter.
2.
In the event any rental fee or other
payment due is not made on or before the date specified herein, interest
charges shall also be due, computed from such due date, at an annual
rate equal to the commercial prime interest rate of the City's primary
depository bank during the period such unpaid amount is owed plus
a penalty of two percent (2%) of the amount.
E.
No Accord Or Satisfaction. No acceptance
of any payment by the City shall be construed as a release or an accord
and satisfaction of any claim the City may have for further or additional
sums payable as rental fees under this code or for the performance
of any other obligation.
F.
Audit. The City shall have the right to inspect all reasonably necessary records and the right to audit and to recompute any amounts determined to be payable under this code. Persons subject to rental fees hereunder shall be responsible for providing the records to the City at an office located within the metropolitan St. Louis area except as provided in Section 540.080(E). Such records shall be maintained for at least five (5) years. The City's audit expenses shall be borne by the person audited if the rental fees paid during the audit period are less than ninety-five percent (95%) of the amount owed according to the audit. Any additional amounts due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the person by the City of the underpayment, which notice shall include a copy of the audit report. If recomputation results in an additional amount to be paid to the City, such amount shall be subject to interest and penalties as specified in Subsection (D)(2) above.
[R.O. 1998 § 540.100; Ord. No. 3262, 4-4-2022]
A.
Insurance Required. 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:
1.
Workers' compensation and employer
liability insurance to meet all requirements of State law; and
2.
Commercial general liability insurance
with respect to the construction, operation, maintenance and presence
of the facilities and the conduct of the ROW user's business in the
City in a sufficient amount to cover the extent to which the City
may be liable under the sovereign immunity limitations pursuant to
State law.
|
These insurance requirements shall
not be construed to limit the liability of any person.
|
B.
Qualifications Of Sureties. All insurance
policies shall be with sureties qualified to do business in the State
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.
Policies Available For Review. 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.
Additional Insured — Prior Notice
Of Policy Cancellation. All general liability insurance policies shall
name the City, its officers, boards, board members, commissions, commissioners,
agents and employees as additional insured 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 code.
E.
Exemption From Insurance Requirements. The Director may exempt in writing from the requirements of Section 540.100(A) through (D) 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 code. 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 the provisions of this code.
F.
Indemnification.
1.
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:
2.
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.
3.
Notwithstanding anything to the contrary
contained in this code, the City shall not be so indemnified or reimbursed
in relation to any amounts:
G.
Relation To Insurance And Indemnity Requirements.
Recovery by the City of any amounts under insurance, a performance
bond or otherwise does not limit a person's duty to indemnify the
City in any way; nor shall such recovery relieve a person of amounts
owed to the City or in any respect prevent the City from exercising
any other right or remedy it may have.
H.
Penalties. Any person violating any provision
of this Article shall, upon conviction by the City's Municipal Court,
be punished by a fine not to exceed one thousand dollars ($1,000.00)
or by imprisonment not to exceed ninety (90) days, or by both such
fine and imprisonment. Each day the violation continues may be charged
as a separate offense.
[R.O. 1998 § 540.110; Ord. No. 3262, 4-4-2022]
A.
Dispute Resolution By The Director. 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 code. 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 code, provided, however, that this review shall not apply to matters being prosecuted in court pursuant to Section 540.070(A)(2)(c) or Section 540.100(H) hereof. Any final determination of the Director shall be subject to review as provided herein.
B.
Appeals To The City Administrator. Any
person aggrieved by a final determination of the Director may appeal
in writing to the City Administrator within five (5) business days
thereof. The appeal shall assert specific grounds for review and the
City Administrator shall render a decision on the appeal within fifteen
(15) business days of its receipt affirming, reversing or modifying
the determination of the Director. The City Administrator may extend
this time period for the purpose of any investigation or hearing deemed
necessary. A decision affirming the Director's determination shall
be in writing and supported by findings establishing the reasonableness
of the decision.
C.
Chapter 536 Review. Any person aggrieved
by the final determination of the City Administrator may file a petition
for review pursuant to Chapter 536, RSMo., as amended, in the Circuit
Court of the County. Such petition shall be filed within thirty (30)
days after the City Administrator's final determination.
D.
Arbitration And Mediation.
1.
On agreement of the parties and in
addition to any other remedies, any final decision of the City Administrator
may be submitted to mediation or binding arbitration.
2.
In the event of mediation, the City
Administrator and the applicant or ROW user shall agree to a mediator.
The costs and fees of the mediator shall be borne equally by the parties
and each party shall pay its own costs, disbursements and attorney
fees.
3.
In the event of arbitration, the
City Administrator and the applicant or ROW user shall agree to an
arbitrator. The costs and fees of a single arbitrator shall be borne
equally by the parties. If the parties cannot agree on an arbitrator,
the matter shall be resolved by a three (3) person arbitration panel
consisting of one (1) arbitrator selected by the City Administrator,
one (1) arbitrator selected by the applicant or ROW user and one (1)
person selected by the other two (2) arbitrators, in which case, each
party shall bear the expense of its own arbitrator and shall jointly
and equally bear with the other party the expense of the third arbitrator
and of the arbitration. Each party shall also pay its own costs, disbursements
and attorney fees.
[R.O. 1998 § 540.120; Ord. No. 3262, 4-4-2022]
A.
Captions. Captions throughout this code
are intended solely to facilitate reading and reference to the Sections
and provisions. Such captions shall not affect the meaning or interpretation
of this code.
B.
Interpretation Of Code. The provisions
of this code shall be liberally construed to promote the public interest.
C.
Expense. Any act that a person is required
to perform by this code or other law shall be done at the person's
expense, without City reimbursement, unless expressly provided to
the contrary by law.
D.
Eminent Domain. Nothing herein shall be
deemed or construed to impair or affect, in any way or to any extent,
the power of eminent domain held by the City or any other person.
E.
Exclusive Contracts And Anti-Competitive
Acts Prohibited.
1.
Unless otherwise allowed by law,
no person shall enter into or enforce an exclusive contract for the
provision of services with any other person or demand the exclusive
right to serve another person or location as a condition of extending
service to that person or location or any other person or location.
2.
No person shall engage in acts that
have the purpose or effect of limiting competition for the provision
of services in the City, except for such actions as are expressly
authorized by law.
F.
No Recourse Against The City. Without limiting
such immunities as the City or other persons may have under applicable
law, no person shall have any recourse whatsoever against the City
or its officials, members, boards, commissions, agents or employees
for any loss, costs, expense, liability or damage arising out of any
action undertaken or not undertaken pursuant to any provision or requirement
of this code or because of the enforcement of this code or the City's
exercise of its authority pursuant to this code or other applicable
law, unless such recourse is expressly authorized by law.
G.
Rights And Remedies.
1.
The rights and remedies reserved
to the City by this code are cumulative and shall be in addition to
and not in derogation of any other rights and remedies which the City
may have with respect to the subject matter of this code.
2.
The City hereby reserves to itself
the right to intervene in any suit, action or proceeding involving
any provision of this code.
3.
Specific mention of the materiality
of any of the provisions herein is not intended to be exclusive of
any others for the purpose of determining whether any failure of compliance
hereunder is material and substantial.
4.
No course of dealing between any
person and the City, or any delay on the part of the City in exercising
any rights hereunder, shall operate as a waiver of any such rights
of the City or acquiescence in the actions of such person in contravention
of such rights except to the extent expressly waived in writing. No
person shall be relieved of its obligation to comply with any of the
provisions of this code by reason of any failure of the City to enforce
prompt compliance. Nor shall any inaction by the City be deemed to
waive a provision or render void any provision of this code.
H.
Force Majeure. A person shall not be deemed
in violation of this code where performance was hindered by war or
riots, civil disturbances, floods or other natural catastrophes beyond
the person's control and a registration shall not be terminated or
a person penalized for such non-compliance, provided that the person
takes prompt and diligent steps to bring itself back into compliance
and to comply as soon as reasonably possible under the circumstances
without unduly endangering the health, safety and integrity of employees
or property or the health, safety and integrity of the public, rights-of-way,
public property or private property.
I.
Public Emergency. In the event of a public
emergency or disaster as determined by the City, a ROW user immediately
shall make facilities, employees and property, as may be reasonably
necessary, available for use by the City or other civil defense or
governmental agency designated by the City for the term of such emergency
or disaster for emergency purposes. In the event of such use, the
ROW user shall waive any claim that such use by the City constitutes
a use of eminent domain, provided that the City shall return use of
the facilities, employees and property to the ROW user promptly after
the emergency or disaster has ended.
J.
Calculation Of Time. Unless otherwise indicated,
when the performance or doing of any act, duty, matter or payment
is required under this code and a period of time is prescribed and
is fixed herein, the time shall be computed so as to exclude the day
of the act, event or default after which the designated period of
time begins to run and include the last day of the prescribed or fixed
period of time, unless it is a Saturday, Sunday or legal holiday,
in which event the period runs until the next day which is neither
a Saturday, Sunday or legal holiday. If the period is less than seven
(7) days, intermediate Saturday, Sunday and legal holidays shall be
excluded in the computation. This Subsection shall not apply in the
context of obligations that continue on a daily basis.
K.
Severability. If any term, condition, clause,
sentence or provision of this code shall, to any extent, be held to
be invalid or unenforceable, the remainder hereof shall be valid in
all other respects and continue to be effective. In the event of a
subsequent change in applicable law so that the provision which had
been held invalid is no longer invalid, said provision shall thereupon
return to full force and effect without further action by the City
and shall thereafter be binding.
[R.O. 1998 § 540.130; Ord. No. 3262, 4-4-2022]
|
Fee
|
Amount
|
|---|---|
|
Registration Fee
|
$50.00
|
|
ROW Work Permit Fee
|
$100.00
|
|
Degradation Fee
|
(Linear feet of the perimeter of
the cut) x ($1.25)* x (Number of years to next overlay)
|
|
Linear Foot Fee
|
$1.90**
|
|
Antenna Fee
|
$100.00 each***
|
|
NOTES:
| |
|---|---|
|
*
|
Director's estimate of annual cut
maintenance cost
|
|
**
|
This amount shall be adjusted beginning
January 1, 2002, and every two (2) years thereafter to reflect price
changes in accordance with the Consumer Price Index published by the
Bureau of Labor Statistics of the U.S. Department of Labor in accord
with this paragraph. The index number shown for St. Louis County,
Missouri, titled "ALL ITEMS" and under the heading of "CPI-U" for
the first half of 2000, which index shall be the base number, and
the corresponding index number available for the year prior to the
recalculation date shall be the current index number. From the quotient
thereof, there shall be subtracted the integer one (1) and any resulting
positive number shall be multiplied by one hundred (100) and then
deemed to be the percentage increase in the cost of living. Said percentage
shall then be multiplied by the previous annual payment rate and the
resultant figure shall constitute the applicable payment rate. No
adjustment shall be made to reduce any applicable payment rate. If
the designated Consumer Price Index is not available for use as the
"current index number" for the period provided, the City Administrator
shall use another appropriate standard cost of living index.
|
|
***
|
This amount shall be adjusted beginning
January 1, 2004, and every two (2) years thereafter in the same manner
as the linear foot fee as outlined above.
|
[R.O. 1998 § 540.140; Ord. No. 3262, 4-4-2022]
This Article shall be known and may be cited as the "Small Wireless Facility Deployment Code," and it is intended to encourage and streamline the deployment of small wireless facilities in the City and to help ensure that robust and dependable wireless radio-based communication services and networks are available throughout the City, consistent with State and Federal law, including Sections 67.5110 to 67.5121, RSMo. (while in effect), and Sections 67.1830 to 67.1846, RSMo. The provisions of other Sections of the Municipal Code and, specifically, Chapter 540, shall apply to small wireless deployments except to the extent inconsistent with this Article.
[R.O. 1998 § 540.150; Ord. No. 3262, 4-4-2022]
As used in this Article, the following
terms shall mean:
Communications equipment that transmits or receives electromagnetic
radio frequency signals used in the provision of wireless services.
Uniform building, fire, electrical, plumbing, or mechanical
codes adopted by a recognized national code organization or the City's
amendments to such codes enacted to prevent physical property damage
or reasonably foreseeable injury to persons to the extent not inconsistent
with Sections 67.5110 to 67.5121, RSMo. (while in effect).
Any person who submits an application and is a wireless provider.
A request submitted by an applicant to the City for a permit
to co-locate small wireless facilities on a utility pole or wireless
support structure, or to approve the installation, modification, or
replacement of a utility pole.
The City of St. Ann.
A utility pole owned, managed, or operated by or on behalf
of the City, but such term shall not include municipal electric utility
distribution poles.
A wireless support structure owned, managed, or operated
by or on behalf of the City.
To install, mount, maintain, modify, operate, or replace
small wireless facilities on or immediately adjacent to a wireless
support structure or utility pole, provided that the small wireless
facility antenna is located on the wireless support structure or utility
pole.
The set of equipment and network components, including wires,
cables, and associated facilities used by a cable operator, as defined
in 47 U.S.C. Section 522(5); a telecommunications carrier, as defined
in 47 U.S.C. Section 153(51); a provider of information service, as
defined in 47 U.S.C. Section 153(24); or a wireless services provider;
to provide communications services, including cable service, as SS
SCS HCS HB 1991, 7 defined in 47 U.S.C. Section 522(6); telecommunications
service, as defined in 47 U.S.C. Section 153(53); an information service,
as defined in 47 U.S.C. Section 153(24); wireless communications service;
or other one-way or two-way communications service.
A cable operator, as defined in 47 U.S.C. Section 522(5);
a provider of information service, as defined in 47 U.S.C. Section
153(24); a telecommunications carrier, as defined in 47 U.S.C. Section
153(51); or a wireless provider.
A pole that is specially designed and placed for aesthetic
purposes.
A one-time, non-recurring charge.
A group of buildings, properties, or sites that are either
listed in the National Register of Historic Places or formally determined
eligible for listing by the Keeper of the National Register, the individual
who has been delegated the authority by the Federal agency to list
properties and determine their eligibility for the National Register,
in accordance with Section VI.D.1.a.i-v of the Nationwide Programmatic
Agreement codified at 47 CFR Part 1, Appendix C, or are otherwise
located in a district made subject to special design standards adopted
by City ordinance or under State law as of January 1, 2018, or subsequently
enacted for new developments.
A small wireless facility that meets the following qualifications:
A written authorization required by the City to perform an
action or initiate, continue, or complete a project.
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including any
government authority.
A recurring charge.
The area on, below, or above a public roadway, highway, street,
sidewalk, alley, or similar property used for public travel, but not
including a Federal interstate highway, railroad right-of-way, or
private easement.
A wireless facility that meets both of the following qualifications:
Each wireless provider's antenna
could fit within an enclosure of no more than six (6) cubic feet in
volume; and
All other equipment associated with
the wireless facility, whether ground or pole-mounted, is cumulatively
no more than twenty-eight (28) cubic feet in volume, provided that
no single piece of equipment on the utility pole shall exceed nine
(9) cubic feet in volume; and no single piece of ground-mounted equipment
shall exceed fifteen (15) cubic feet in volume, exclusive of equipment
required by an electric utility or municipal electric utility to power
the small wireless facility. The following types of associated ancillary
equipment shall not be included in the calculation of equipment volume:
electric meter, concealment elements, telecommunications demarcation
box, grounding equipment, power transfer switch, cutoff switch, and
vertical cable runs and related conduit for the connection of power
and other services.
By virtue of engineering or spectrum usage, the proposed
placement for a small wireless facility or its design or site location
can be implemented without a reduction in the functionality of the
small wireless facility.
A pole or similar structure that is or may be used in whole
or in part by or for wireline communications, electric distribution,
lighting, traffic control, signage, or a similar function, or for
the co-location of small wireless facilities; provided, however, such
term shall not include wireless support structures, electric transmission
structures, or breakaway poles owned by the State Highways and Transportation
Commission.
Equipment at a fixed location that enables wireless communications
between user equipment and a communications network, including equipment
associated with wireless communications and radio transceivers, antennas,
coaxial or fiber-optic cable, regular and backup power supplies, and
comparable equipment, regardless of technological configuration. The
term includes small wireless facilities. The term does not include:
The structure or improvements on,
under, or within which the equipment is co-located;
Coaxial or fiber-optic cable between
wireless support structures or utility poles;
Coaxial or fiber-optic cable not
directly associated with a particular small wireless facility;
A wireline backhaul facility.
Any person, including a person authorized to provide telecommunications
service in the State, that builds or installs wireless communication
transmission equipment or wireless facilities but that is not a wireless
services provider.
A wireless infrastructure provider or a wireless services
provider.
Any services using licensed or unlicensed spectrum, including
the use of wi-fi, whether at a fixed location or mobile, provided
to the public using wireless facilities.
A person who provides wireless services.
An existing structure, such as a monopole or tower, whether
guyed or self-supporting, designed to support or capable of supporting
wireless facilities; an existing or proposed billboard; an existing
or proposed building; or other existing or proposed structure capable
of supporting wireless facilities, other than a structure designed
solely for the co-location of small wireless facilities. Such term
shall not include a utility pole.
A physical transmission path, all or part of which is within
the right-of-way, used for the transport of communication data by
wire from a wireless facility to a network.
[R.O. 1998 § 540.160; Ord. No. 3262, 4-4-2022]
A.
The provisions of this Section shall only
apply to activities of a wireless provider within the right-of-way
to deploy small wireless facilities and associated utility poles.
B.
Subject to the provisions of this Section and Sections 67.5110 to 67.5121, RSMo. (while in effect), a wireless provider may, as a permitted use not subject to zoning review or approval, co-locate small wireless facilities and install, maintain, modify, operate, and replace utility poles along, across, upon, and under the right-of-way, except that the placement in the right-of-way of new or modified utility poles in single-family residential zoning districts or areas zoned as historic as of August 28, 2018, shall remain subject to any applicable zoning requirements, including architectural review, that are consistent with Sections 67.5090 to 67.5103, RSMo., including, but not limited to, requirements for underground utilities as set forth in Chapter 540. Small wireless facilities co-located outside the right-of-way in property not zoned primarily for single-family residential use shall be classified as permitted uses and not subject to zoning review or approval. Such small wireless facilities and utility poles shall be installed and maintained as not to obstruct or hinder the usual travel or public safety on such right-of-way or obstruct the legal use of such right-of-way by the City, other governmental authorities or other authorized right-of-way users.
C.
A wireless provider must obtain a permit
pursuant to this Chapter, with such reasonable conditions as may be
imposed by the City, for work in a right-of-way that will involve
excavation, affect traffic patterns, obstruct traffic in the right-of-way,
or materially impede the use of a sidewalk.
D.
Each new, replacement, or modified utility
pole installed in the right-of-way shall not exceed the greater of
ten (10) feet in height above the tallest existing utility pole in
place as of January 1, 2019, located within five hundred (500) feet
of the new pole in the same right-of-way, or fifty (50) feet above
ground level. New small wireless facilities in the right-of-way shall
not extend more than ten (10) feet above an existing utility pole
in place as of August 28, 2018, or for small wireless facilities on
a new utility pole, above the height permitted for a new utility pole.
A new, modified, or replacement utility pole that exceeds these height
limits shall be subject to all applicable zoning requirements that
apply to other utility poles, to the extent consistent with Sections
67.5090 to 67.5103, RSMo.
E.
All new utility poles located along a public
street in the downtown area must be decorative poles consistent with
the appearance, construction and aesthetic of existing street lights
in the downtown area. Other types of utility poles may be located
in the alleys in the downtown area, provided that such poles are behind
the front building lines of the adjacent buildings.
F.
A wireless provider shall be permitted
to replace decorative poles when necessary to co-locate a small wireless
facility, but any replacement pole shall reasonably conform to the
design aesthetics of the decorative pole or poles being replaced,
as determined by the Building Commissioner.
G.
Subject to Section 540.170 below, and except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R. Section 1.1307(a)(4) of the Federal Communications Commission rules, a wireless provider must use appropriate and reasonable, technically feasible, non-discriminatory, and technologically neutral design or concealment measures in a historic district, as determined by the Building Commissioner. Any such design or concealment measures shall not have the effect of prohibiting any provider's technology, nor shall any such measures be considered a part of the small wireless facility for purposes of the size restrictions in the definition of small wireless facility.
H.
Small wireless facility co-locations shall
not interfere with or impair the operation of existing utility facilities,
or City or third-party attachments. A wireless provider shall repair
all damage to the right-of-way directly caused by the activities of
the wireless provider in the right-of-way and shall return the right-of-way
to its functional equivalence before the damage under the competitively
neutral, reasonable requirements and specifications of the City. If
the wireless provider fails to make the repairs required by the City
within a reasonable time after written notice, the City may make those
repairs and charge the wireless provider the reasonable, documented
cost of such repairs.
[R.O. 1998 § 540.170; Ord. No. 3262, 4-4-2022]
A.
The provisions of this Section shall apply
to the permitting of small wireless facilities to be installed by
or for a wireless provider in or outside the right-of-way and to the
permitting of the installation, modification, and replacement of utility
poles by a wireless provider inside the right-of-way.
B.
Wireless providers or their agents shall apply for and obtain a permit to co-locate a small wireless facility or install a new, modified, or replacement utility pole associated with a small wireless facility as provided in Section 540.160 above. The City shall receive applications for, process, and issue such permits subject to the following requirements:
1.
An applicant shall not be required
to perform services or provide goods unrelated to the permit, such
as in-kind contributions to the City, including reserving fiber, conduit,
or pole space for the City;
2.
An applicant shall not be required to provide more information to obtain a permit than communications service providers that are not wireless providers, provided that an applicant shall include construction and engineering drawings and information demonstrating compliance with the criteria in Subdivision (9) of this Subsection and an attestation that the small wireless facility complies with the volumetric limitations in the definition of small wireless facility of Section 540.150 above;
3.
An applicant shall not be required
to place small wireless facilities on any specific utility pole or
category of poles or require multiple antenna systems on a single
utility pole;
4.
There is no limit as to the placement
of small wireless facilities by minimum horizontal separation distances;
5.
An applicant shall comply with reasonable,
objective, and cost-effective concealment or safety requirements as
provided herein;
6.
An applicant that is not a wireless
services provider shall provide evidence of agreements or plans demonstrating
that the small wireless facilities will be operational for use by
a wireless services provider within one (1) year after the permit
issuance date, unless the City and the applicant agree to extend this
period or if delay is caused by lack of commercial power or communications
transport facilities to the site and the applicant notifies the City
thereof. An applicant that is a wireless services provider shall provide
the information required by this Subsection by attestation;
7.
Within fifteen (15) days of receiving an application, the City shall determine and notify the applicant, in writing, whether the application is complete. If an application is incomplete, the City shall specifically identify the missing information in writing. The processing deadline in Subsection (B)(8) of this Section shall be tolled from the time the City sends the notice of incompleteness to the time the applicant provides the missing information. That processing deadline may also be tolled by agreement of the applicant and the City;
8.
An application for co-location shall
be processed on a non-discriminatory basis and deemed approved if
the City fails to approve or deny the application within forty-five
(45) days of receipt of the application. An application for installation
of a new, modified, or replacement utility pole associated with a
small wireless facility shall be processed on a non-discriminatory
basis and deemed approved if the City fails to approve or deny the
application within sixty (60) days of receipt of the application;
9.
The City may deny a proposed co-location
of a small wireless facility or installation, modification, or replacement
of a utility pole if the action proposed in the application could
reasonably be expected to:
a.
Materially interfere with the safe
operation of traffic control equipment or City-owned communications
equipment;
b.
Materially interfere with sight lines
or clear zones for transportation, pedestrians, or non-motorized vehicles;
c.
Materially interfere with compliance
with the Americans with Disabilities Act, 42 U.S.C. Sections 12101
to 12213, or similar Federal or State standards regarding pedestrian
access or movement;
d.
Materially obstruct or hinder the
usual travel or public safety on the right-of-way;
e.
Materially obstruct the legal use
of the right-of-way by the City, a utility, or other third party;
f.
Fail to comply with reasonable and
non-discriminatory spacing requirements of general application adopted
by ordinance or regulations promulgated by the State Highways and
Transportation Commission that concern the location of ground-mounted
equipment and new utility poles, subject to wireless provider requests
for exception or variance;
g.
Fail to comply with applicable codes,
including nationally recognized engineering standards for utility
poles or wireless support structures;
h.
Fail to comply with the reasonably
objective and documented aesthetics of a decorative pole and the applicant
does not agree to pay to match the applicable decorative elements;
or
i.
Fail to comply with reasonable and
non-discriminatory undergrounding requirements contained in City ordinances
as of January 1, 2018, or subsequently enacted for new developments,
that require all new utility facilities in the area to be placed underground
and prohibit the installation of new or the modification of existing
utility poles in a right-of-way without prior approval, including
by wireless provider request for exception or variance.
10.
The City shall document the complete
basis for a denial in writing, and send the documentation to the applicant
with the communication denying an application. The applicant may cure
the deficiencies identified by the City and resubmit the application
within thirty (30) days of the denial without paying an additional
application fee. The City shall approve or deny the revised application
within thirty (30) days. Any subsequent review shall be limited to
the deficiencies cited in the denial;
11.
Additionally:
a.
An applicant may file a consolidated
application and receive a single permit for the co-location of multiple
small wireless facilities; provided, however, the denial of one (1)
or more small wireless facilities in a consolidated application shall
not delay processing of any other small wireless facilities in the
same batch; and
b.
An application may include up to
twenty (20) separate small wireless facilities, provided that they
are for the same or materially same design of small wireless facility
being co-located on the same or materially the same type of utility
pole or wireless support structure, and geographically proximate.
If the City receives individual applications for approval of more
than fifty (50) small wireless facilities or consolidated applications
for approval of more than seventy-five (75) small wireless facilities
within a fourteen-day period, whether from a single applicant or multiple
applicants, the City may, upon its own request, obtain an automatic
thirty-day extension for any additional co-location or replacement
or installation application submitted during that fourteen-day period
or in the fourteen-day period immediately following the prior fourteen-day
period. The City shall promptly communicate its request to each affected
applicant. In rendering a decision on an application for multiple
small wireless facilities, the City may approve the application as
to certain individual small wireless facilities while denying it as
to others based on applicable requirements and standards, including
those identified in this Section. The City's denial of any individual
small wireless facility or subset of small wireless facilities within
an application shall not be a basis to deny the application as a whole.
12.
Installation or co-location for which
a permit is granted under this Section shall be completed within one
(1) year after the permit issuance date unless the City and the applicant
agree to extend this period, or the applicant notifies the City that
the delay is caused by a lack of commercial power or communications
transport facilities to the site;
13.
Approval of an application authorizes
the applicant to:
a.
Undertake the installation or co-location;
and
b.
Operate and maintain the small wireless
facilities and any associated utility pole covered by the permit for
a period of ten (10) years, which shall be renewed for equivalent
durations so long as the facilities and poles remain in compliance
with the criteria set forth in Subdivision (9) of this Subsection,
unless the applicant and the City agree to an extension term of less
than ten (10) years. The provisions of this Subsection shall be subject
to the right of the City to require, upon adequate notice and at the
facility owner's own expense, relocation of facilities as may be needed
in the interest of public safety and convenience, and the applicant's
right to terminate at any time.
14.
There shall be a temporary moratorium
on applications for small wireless facilities and the co-location
thereof for the duration of a Federal or State-declared natural disaster
plus a reasonable recovery period, or for no more than thirty (30)
days in the event of a major and protracted staffing shortage that
reduces the number of personnel necessary to receive, review, process,
and approve or deny applications for the co-location of small wireless
facilities by more than fifty percent (50%);
15.
Abandoned small wireless facilities shall be removed as provided in this Chapter 540 or an agreement, as applicable;
16.
In determining whether sufficient
capacity exists to accommodate the attachment of a new small wireless
facility, the City shall take into account that any grant of access
hereunder shall be subject to a reservation to reclaim such space,
when and if needed, to meet a core utility purpose or documented plan
projected at the time of the application pursuant to a bona fide development
plan; and
17.
In emergency circumstances that result
from a natural disaster or accident, the City may require the owner
or operator of a wireless facility to immediately remove such facility
if the wireless facility is obstructing traffic or causing a hazard
on the City's roadway. In the event that the owner or operator of
the wireless facility is unable to immediately remove the wireless
facility, the City may remove the wireless facility from the roadway
or other position that renders the wireless facility hazardous. Under
these emergency circumstances, the City shall not be liable for any
damage caused by removing the wireless facility and may charge the
owner or operator of the wireless facility the City's reasonable expenses
incurred in removing the wireless facility.
C.
A permit is not required for:
1.
Routine maintenance on previously
permitted small wireless facilities;
2.
The replacement of small wireless
facilities with small wireless facilities that are the same or smaller
in size, weight, and height; or
3.
The installation, placement, maintenance,
operation, or replacement of micro wireless facilities that are strung
on cables between utility poles, in compliance with applicable codes.
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For work described in Subdivisions
(1) and (2) of this Subsection that involves different equipment than
that being replaced, the wireless services provider shall submit a
description of such new equipment so that the City may maintain an
accurate inventory of the small wireless facilities at that location.
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D.
No approval for the installation, placement,
maintenance, or operation of a small wireless facility under this
Section shall be construed to confer authorization for the provision
of cable television service, or installation, placement, maintenance,
or operation of a wireline backhaul facility or communications facility,
other than a small wireless facility, in the right-of-way.
E.
A municipal electric utility shall not
require an application for the installation, placement, maintenance,
operation, or replacement of micro wireless facilities that are strung
on cables between utility poles, in compliance with applicable codes.
[R.O. 1998 § 540.180; Ord. No. 3262, 4-4-2022]
A.
This Section only applies to co-locations
on City poles and wireless support structures that are located outside
the right-of-way.
B.
Subject to Subsection (C) of this Section, the City shall authorize the co-location of small wireless facilities on City wireless support structures and poles to the same extent, if any, that it permits access to such structures for other commercial projects or uses. Such co-locations shall be subject to reasonable and non-discriminatory rates, fees, and terms as provided in an agreement between the City, or its agent, and the wireless provider in a form approved by the Board of Aldermen.
C.
The City shall not enter into an exclusive
agreement with a wireless provider concerning City poles or wireless
support structures, including stadiums and enclosed arenas, unless
the agreement meets the following requirements:
1.
The wireless provider provides service
using a shared network of wireless facilities that it makes available
for access by other wireless providers, on reasonable and non-discriminatory
rates and terms that shall include use of the entire shared network,
as to itself, an affiliate, or any other entity; or
2.
The wireless provider allows other
wireless providers to co-locate small wireless facilities, on reasonable
and non-discriminatory rates and terms, as to itself, an affiliate,
or any other entity.
D.
When determining whether a rate, fee, or
term is reasonable and non-discriminatory for the purposes of this
Section, consideration may be given to any relevant facts, including
alternative financial or service remuneration, characteristics of
the proposed equipment or installation, structural limitations, or
other commercial or unique features or components.
[R.O. 1998 § 540.190; Ord. No. 3262, 4-4-2022]
A.
The provisions of this Section apply to
co-locations on City poles within the right-of-way by a wireless provider.
B.
Neither the City nor any person owning,
managing, or controlling City poles in the right-of-way shall enter
into an exclusive arrangement with any person for the right to attach
to such poles. A person who purchases or otherwise acquires a City
pole is subject to the requirements of this Section.
C.
The City shall allow the co-location of small wireless facilities on its poles using the process set forth in Section 540.170.
D.
An application shall include engineering
and construction drawings, as well as plans and detailed cost estimates
for any make-ready work as needed, for which the applicant shall be
solely responsible.
E.
Make-ready work shall be addressed as follows,
unless the City (or its successor) and applicant agree to different
terms in a pole attachment agreement:
1.
The rates, fees, and terms and conditions
for the make-ready work to co-locate on a City pole shall be non-discriminatory,
competitively neutral, and commercially reasonable, and shall comply
with Sections 67.5110 to 67.5121, RSMo.;
2.
Unless the City allows the applicant
to perform any make-ready work, the City shall provide a good faith
estimate for any make-ready work necessary to enable the pole to support
the requested co-location by a wireless provider, including pole replacement
if necessary, within sixty (60) days after receipt of a complete application.
If applicable, make-ready work, including any pole replacement, shall
be completed by the City within sixty (60) days of written acceptance
of the good faith estimate and advance payment by the applicant. The
City may require replacement of its pole on a non-discriminatory basis
for reasons of safety and reliability, including a demonstration that
the co-location would make the pole structurally unsound, including,
but not limited to, if the co-location would cause a utility pole
to fail a crash test; and
3.
The person owning, managing, or controlling
the City pole shall not require more make-ready work than required
to meet applicable codes or industry standards. Fees for make-ready
work shall not include costs related to preexisting or prior damage
or non-compliance unless the City had determined, prior to the filing
of the application, to permanently abandon and not repair or replace
the structure. Fees for make-ready work, including any pole replacement,
shall not exceed actual costs or the amount charged to other communications
service providers for similar work, and shall not include third-party
fees, charges, or expenses, except for amounts charged by licensed
contractors actually performing the make-ready work.
F.
When a small wireless facility is located
in the right-of-way of the State Highway System, equipment and facilities
directly associated with a particular small wireless facility, including
coaxial and fiber optic cable, conduit, and ground-mounted equipment,
shall remain in the utility corridor except as needed to reach a City
or utility pole in the right-of-way but outside the utility corridor
in which the small wireless facility is co-located.
[R.O. 1998 § 540.200; Ord. No. 3262, 4-4-2022]
A.
This Section governs the rates and fees
to co-locate small wireless facilities on City poles and the rates
and fees for the placement of utility poles, but does not limit the
City's ability to recover specific removal costs from the attaching
wireless provider for abandoned structures. The rates to co-locate
on City poles shall be non-discriminatory regardless of the services
provided by the collocating applicant.
B.
The City shall not require a wireless provider
to pay any rates, fees, or compensation to the authority or other
person other than what is expressly authorized by Sections 67.5110
to 67.5121, RSMo. (while in effect), for the use and occupancy of
a right-of-way, for co-location of small wireless facilities on utility
poles in the right-of-way, or for the installation, maintenance, modification,
operation, and replacement of utility poles in the right-of-way.
C.
Application fees shall be as follows:
1.
The total fee for any application for co-location of small wireless facilities on existing City poles shall be one hundred dollars ($100.00) per small wireless facility. An applicant filing a consolidated application under Subdivision (11) of Subsection (B) of Section 540.170 shall pay one hundred dollars ($100.00) per small wireless facility included in the consolidated application; and
2.
The total application fees for the
installation, modification, or replacement of a pole and the co-location
of an associated small wireless facility shall be five hundred dollars
($500.00) per pole.
D.
Additional Fee Regulations.
1.
The rate for co-location of a small
wireless facility to a City pole shall be one hundred fifty dollars
($150.00) per pole per year.
2.
The City shall not charge a wireless provider any fee, tax other than a tax authorized by Subsection (D)(3) below, or other charge, or require any other form of payment or compensation, to locate a wireless facility or wireless support structure on privately owned property, or on a wireless support structure not owned by the City.
3.
The City shall not demand any fees,
rentals, licenses, charges, payments, or assessments from any applicant
or wireless provider for, or in any way relating to or arising from,
the construction, deployment, installation, mounting, modification,
operation, use, replacement, maintenance, or repair of small wireless
facilities or utility poles, if not allowed by Section 67.5116, RSMo.,
(while in effect).
[R.O. 1998 § 540.210; Ord. No. 3262, 4-4-2022]
Subject to the provisions of Sections
67.5110 to 67.5121, RSMo., (while in effect) and applicable Federal
law, the City shall continue to exercise zoning, land use, planning,
and permitting authority within its territorial boundaries, including
with respect to wireless support structures and utility poles, except
that the City shall not have or exercise any jurisdiction or authority
over the design, engineering, construction, installation, or operation
of any small wireless facility located in an interior structure or
upon the site of any campus, stadium, or athletic facility not owned
or controlled by the City, other than to comply with applicable codes.
[R.O. 1998 § 540.220; Ord. No. 3262, 4-4-2022]
This Article shall not nullify, modify,
amend, or prohibit a mutual agreement between the City and a wireless
provider made prior to August 28, 2018, but an agreement that does
not fully comply with Sections 67.5110 to 67.5121, RSMo. (while in
effect), shall apply only to small wireless facilities and utility
poles that were installed or approved for installation before August
28, 2018, subject to any termination provisions in the agreement.
Such an agreement shall not be renewed, extended, or made to apply
to any small wireless facility or utility pole installed or approved
for installation after August 28, 2018, unless it is modified to fully
comply with Sections 67.5110 to 67.5121, RSMo. (while in effect).
In the absence of an agreement, and until such a compliant agreement
or ordinance is entered or adopted, small wireless facilities and
utility poles that become operational or were constructed before August
28, 2018, may remain installed and be operated under the requirements
of Sections 67.5110 to 67.5121, RSMo. (while in effect).
[R.O. 1998 § 540.230; Ord. No. 3262, 4-4-2022]
A.
A wireless provider shall indemnify and
hold the City and its elected and appointed officers and employees
harmless against any damage or personal injury caused by the negligence
of the wireless provider or its employees, agents, or contractors,
including but not limited to reasonable attorney's fees incurred by
the City.
B.
A wireless provider shall have in effect insurance coverage consistent with this Section, or demonstrate a comparable self-insurance program, all in accordance with Section 540.100. A self-insured wireless provider does not need to name the City or its officers and employees as additional insured. A wireless provider shall furnish proof of insurance, if applicable, prior to the effective date of any permit issued for a small wireless facility.
C.
The bonding requirements of Section 540.070 shall apply to small wireless facilities. The purpose of such bonds shall be to:
1.
Provide for the removal of abandoned
or improperly maintained small wireless facilities, including those
that an authority determines need to be removed to protect public
health, safety, or welfare;
2.
Restore the right-of-way in connection
with removals under Section 67.5113, RSMo.;
3.
Recoup rates or fees that have not
been paid by a wireless provider in over twelve (12) months, so long
as the wireless provider has received reasonable notice from the City
of any non-compliance listed above and been given an opportunity to
cure;
4.
Bonding requirements shall not exceed
one thousand five hundred dollars ($1,500.00) per small wireless facility.
For wireless providers with multiple small wireless facilities within
the City, the total bond amount across all facilities shall not exceed
seventy-five thousand dollars ($75,000.00), which amount may be combined
into one (1) bond instrument.
D.
Applicants that have at least twenty-five
million dollars ($25,000,000.00) in assets in the State and do not
have a history of permitting non-compliance within the City shall,
under Section 67.1830, RSMo., be exempt from the insurance and bonding
requirements otherwise authorized by this Section.
E.
Any contractor, subcontractor, or wireless
infrastructure provider shall be under contract with a wireless services
provider to perform work in the right-of-way related to small wireless
facilities or utility poles, and such entities shall be properly licensed
under the laws of the State and all applicable City ordinances. Each
contracted entity shall have the same obligations with respect to
his or her work as a wireless services provider would have under this
Section, under Sections 67.5110 to 67.5121, RSMo., and other applicable
laws if the work were performed by a wireless services provider. The
wireless services provider shall be responsible for ensuring that
the work of such contracted entities is performed consistently with
the wireless services provider's permits and applicable laws relating
to the deployment of small wireless facilities and utility poles,
and responsible for promptly correcting acts or omissions by such
contracted entity.
[R.O. 1998 § 540.240; Ord. No. 3262, 4-4-2022]
The provisions contained within this Article II shall expire at such time that Sections 67.5110 to 67.5122, RSMo., expire, except that for small wireless facilities already permitted or co-located on City poles prior to such date, the rate set forth in this Article for co-location of small wireless facilities on City poles shall remain effective for the duration of the permit authorizing the co-location.
