Eureka City Zoning Code
ARTICLE XXI
Video Services Providers Act
Section 23-210 Ratification of Existing Franchises.
[Ord. No. 2028 §1, 1-15-2008]
(a)
To the extent permitted by the 2007 Video Services Providers Act, the City of Eureka hereby ratifies all existing agreements, franchises and ordinances regulating cable television operators and other video service providers, including the imposition of a franchise fee of five percent (5%) imposed on the gross revenues of all such providers and further declares that such agreements, franchises and ordinances shall continue in full force and effect until expiration as provided therein, or until pre-empted by the issuance of video service authorizations by the Missouri Public Service Commission or otherwise by law, but only to the extent of said pre-emption.
Section 23-211 Video Service Regulations.
[Ord. No. 2028 §2, 1-15-2008]
(a) FRANCHISE AREA GROSS REVENUES(1) (2) (3) (4) (5) (6) (i) (ii) (iii) (iv) (v) (vi) HOUSEHOLD LOW INCOME HOUSEHOLD PERSON SUBSCRIBER VIDEO SERVICE VIDEO SERVICE AUTHORIZATION VIDEO SERVICE NETWORK VIDEO SERVICE PROVIDER OR PROVIDER VIDEO SERVICE PROVIDER FEE
Definitions. The following terms shall have the following meanings unless otherwise defined by context:
The total geographic area of the City authorized to be served by an incumbent cable television operator or incumbent local exchange carrier or affiliate thereof.
The total amounts billed to subscribers or received from advertisers for the provision of video services within the City, including:
Recurring charges for video service,
Event-based charges for video service, including, but not limited to, pay-per-view and video-on-demand charges,
Rental of set top boxes and other video service equipment,
Service charges related to the provision of video service, including, but not limited to, activation, installation, repair and maintenance charges,
Administrative charges related to the provision of video service, including, but not limited to, service order and service termination charges, and
A pro rata portion of all revenue derived, less refunds, rebates or discounts, by a video service provider for advertising over the video service network to subscribers, where the numerator is the number of subscribers within the City and the denominator is the total number of subscribers reached by such advertising; but gross revenues do not include:
Discounts, refunds and other price adjustments that reduce the amount of compensation received by a video service provider,
Uncollectibles,
Late payment fees,
Amounts billed to subscribers to recover taxes, fees or surcharges imposed on subscribers or video service providers in connection with the provision of video services, including the video service provider fee authorized herein,
Fees or other contributions for PEG or I-Net support, or
Charges for services other than video service that are aggregated or bundled with amounts billed to subscribers, provided the video service provider can reasonably identify such charges on books and records kept in the regular course of business or by other reasonable means. Except with respect to the exclusion of the video service provider fee, gross revenues shall be computed in accordance with generally accepted accounting principles.
An apartment, house, mobile home or any other structure or part of a structure intended for residential occupancy as separate living quarters.
A household with an average annual household income of less than thirty-five thousand dollars ($35,000.00) as determined by the most recent decennial census.
An individual, partnership, association, organization, corporation, trust or government entity.
Any person who receives video services in the franchise area.
The provision of video programming provided through wireline facilities, without regard to delivery technology, including Internet protocol technology, whether provided as part of a tier, on demand or a per-channel basis, including cable service as defined by 47 U.S.C. Section 522(6), but excluding video programming provided by a commercial mobile service provider defined in 47 U.S.C. Section 332(d) or any video programming provided solely as part of and via a service that enables users to access content, information, electronic mail or other services offered over the public Internet.
The right of a video service provider or an incumbent cable operator, that secures permission from the Missouri Public Service Commission pursuant to Sections 67.2675 to 67.2714 to offer video service to subscribers.
Wireline facilities or any component thereof that delivers video service, without regard to delivery technology, including Internet protocol technology or any successor technology. The term "video service network" shall include cable television systems.
Any person authorized to distribute video service through a video service network pursuant to a video service authorization.
The fee imposed under Section 23-211(c) hereof.
(b)
General Regulations.
(1)
A video service provider shall provide written notice to the City at least ten (10) days before commencing video service within the City. Such notice shall also include:
(a)
The name, address and legal status of the provider;
(b)
The name, title, address, telephone number, e-mail address and fax number of individual(s) authorized to serve as the point of contact between the City and the provider so as to make contact possible at any time (i.e., twenty-four (24) hours per day, seven (7) days per week); and
(c)
A copy of the provider's video service authorization issued by the Missouri Public Service Commission.
(3)
A video service provider shall not deny access to service to any group of potential residential subscribers because of the race or income of the residents in the area in which the group resides. A video service provider shall be governed in this respect by Section 67.2707, RSMo. The City may file a complaint in a court of competent jurisdiction alleging a germane violation of this Subsection, which complaint shall be acted upon in accordance with Section 67.2711, RSMo.
(4)
A video service provider shall comply with all Federal Communications Commission requirements involving the distribution and notification of emergency messages over the emergency alert system applicable to cable operators. Any video service provider other than an incumbent cable operator serving a majority of the residents within a political subdivision shall comply with this Section by December 31, 2007.
(5)
A video service provider shall, at its sole cost and expense, indemnify, hold harmless and defend the City, its officials, boards, board members, commissions, commissioners, agents and employees against any and all claims, suits, causes of action, proceedings and judgments ("claims") for damages or equitable relief arising out of:
(a)
The construction, maintenance, repair or operation of its video services network,
(b)
Copyright infringements, and
(c)
Failure to secure consents from the owners, authorized distributors or licenses or programs to be delivered by the video service network. Such indemnification shall include, but is not limited to, the City's reasonable attorney's fees incurred in defending against any such claim prior to the video service provider assuming such defense. The City shall notify the provider of a claim within seven (7) business days of its actual knowledge of the existence of such claim. Once the provider assumes the defense of the claim, the City may at its option continue to participate in the defense at its own expense. This indemnification obligation shall not apply to any claim related to the provision of public, educational or governmental channels or programming or to emergency interrupt service announcements.
(c)
Video Service Provider Fee.
(1)
Each video service provider shall pay to the City a video service provider fee in the amount of five percent (5%) of the provider's gross revenues on or before the last day of the month following the end of each calendar quarter. The City may adjust the video service provider fee as permitted in Section 67.2689, RSMo.
(2)
A video service provider may identify and pass through on a proportionate basis the video service provider fee as a separate line item on subscribers' bills.
(3)
The City, not more than once per calendar year and at its own cost, may audit the gross revenues of any video service provider as provided in Section 67.2691, RSMo. A video service provider shall make available for inspection all records pertaining to gross revenues at the location where such records are kept in the normal course of business.
(d)
Customer Service Regulations.
(1) NORMAL BUSINESS HOURS NORMAL OPERATING CONDITIONS SERVICE INTERRUPTION
For purposes of this Section, the following terms shall mean:
Those hours during which most similar businesses in the community are open to serve customers. In all cases the term normal business hours must include some evening hours at least one (1) night per week or some weekend hours.
Those service conditions which are within the control of the video service provider. Those conditions which are not within the control of the video service provider include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the video service provider include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the video system.
The loss of picture or sound on one (1) or more video channels.
(2)
All video service providers shall adopt and abide by the following minimum customer service requirements.
(a)
Video service providers shall maintain a local, toll-free or collect call telephone access line which may be available to subscribers twenty-four (24) hours a day, seven (7) days a week.
(b)
Video service providers shall have trained company representatives available to respond to customer telephone inquiries during normal business hours. After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours shall be responded to, by a trained company representative, on the next business day.
(c)
Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the time under normal operating conditions, measured on a quarterly basis.
(d)
Under normal operating conditions, the customer will receive a busy signal less than three percent (3%) of the time.
(e)
Customer service centers and bill payment locations shall be open at least during normal business hours and shall be conveniently located.
(f)
Under normal operating conditions, each of the following standards shall be met no less than ninety-five percent (95%) of the time measured on a quarterly basis:
(i)
Standard installations shall be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution system.
(ii)
Excluding conditions beyond the control of the operator, the video service provider shall begin working on "service interruptions" promptly and in no event later than twenty-four (24) hours after the interruption becomes known. The video service provider must begin actions to correct other service problems the next business day after notification of the service problem.
(iii)
The "appointment window" alternatives for installations, service calls and other installation activities will be either a specific time or, at a maximum, a four (4) hour time block during normal business hours. The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.
(iv)
A video service provider shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment.
(v)
If a video service provider's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer must be contacted. The appointment shall be rescheduled, as necessary, at a time convenient for the customer.
(h)
Credits for service shall be issued no later than the customer's next billing cycle following the determination that a credit is warranted.
(i)
Video service providers shall not disclose the name or address of a subscriber for commercial gain to be used in mailing lists or for other commercial purposes not reasonably related to the conduct of the businesses of the video service provider or its affiliates, as required under 47 U.S.C. Section 551, including all notice requirements. Video service providers shall provide an address and telephone number for a local subscriber to use without toll charge to prevent disclosure of the subscriber's name or address.
(3)
As required by Section 67.2692, RSMo., this Section 23-211(d) shall be enforced only as follows:
(a)
Each video service provider shall implement an informal process for handling inquiries from the City and customers concerning billing issues, service issues and other complaints. If an issue is not resolved through this informal process, the City may request a confidential non-binding mediation with the video service provider, with the costs of such mediation to be shared equally between the City and the video service provider.
(b)
In the case of repeated, willful and material violations of the provisions of this Section by a video service provider, the City may file a complaint on behalf of a resident harmed by such violations with Missouri's Administrative Hearing Commission seeking an order revoking the video service provider's Public Service Commission authorization. The City or video service provider may appeal any determination made by the Administrative Hearing Commission under this Section to a court of competent jurisdiction, which shall have the power to review the decision de novo. The City shall not file a complaint seeking revocation unless the video service provider has been given sixty (60) days' notice to cure alleged breaches but has failed to do so.
(e)
Public, Educational and Government Access Programming.
(1)
Each video service provider shall designate the same number of channels for non-commercial public, educational or governmental ("PEG") use as required of the incumbent cable television franchisee as of August 28, 2007.
(2)
Any PEG channel that is not substantially utilized by the City may be reclaimed and programmed by the video service provider at the provider's discretion. If the City finds and certifies that a channel that has been reclaimed by a video service provider will be substantially utilized, the video service provider shall restore the reclaimed channel within one hundred twenty (120) days. A PEG channel shall be considered "substantially utilized" when forty (40) hours per week are locally programmed on that channel for at least three (3) consecutive months. In determining whether a PEG channel is substantially utilized, a program may be counted not more than four (4) times during a calendar week.
(3)
The operation of any PEG access channel and the production of any programming that appears on each such channel shall be the sole responsibility of the City or its duly appointed agent receiving the benefit of such channel and the video service provider shall bear only the responsibility for the transmission of the programming on each such channel to subscribers. The City must deliver and submit to the video service provider all transmissions of PEG content and programming in a manner or form that is capable of being accepted and transmitted by such video service provider holder over its network without further alteration or change in the content or transmission signal. Such content and programming must be compatible with the technology or protocol utilized by the video service provider to deliver its video services. The video service provider shall cooperate with the City to allow the City to achieve such compatibility.
(4)
The City shall make the programming of any PEG access channel available to all video service providers in a non-discriminatory manner. Each video service provider shall be responsible for providing the connectivity to the City's or its duly appointed agent's PEG access channel distribution points existing as of August 27, 2007. Where technically necessary and feasible, video service providers shall use reasonable effort and shall negotiate in good faith to interconnect their video service networks on mutually acceptable rates, terms and conditions for the purpose of transmitting PEG programming. A video service provider shall have no obligation to provide such interconnection to a new video service provider at more than one (1) point per headend, regardless of the number of political subdivisions served by such headend. The video service provider requesting interconnection shall be responsible for any costs associated with such interconnection, including signal transmission from the origination point to the point of interconnection. Interconnection may be accomplished by direct cable microwave link, satellite or other reasonable method of connection acceptable to the person providing the interconnection.
(5)
The franchise obligation of an incumbent cable operator to provide monetary and other support for PEG access facilities existing on August 27, 2007 shall continue until the date of franchise expiration (ignoring any termination by notice of issuance of a video service authorization) or January 1, 2012, whichever is earlier. Any other video service provider shall have the same obligation to support PEG access facilities as the incumbent cable operator, but if there is more than one (1) incumbent, then the incumbent with the most subscribers as of August 27, 2007. Such obligation shall be prorated, depending on the nature of the obligation, as provided in Section 67.2703.8, RSMo. The City shall notify each video service provider of the amount of such fee on an annual basis, beginning one (1) year after issuance of the video service authorization.
(6)
A video service provider may identify and pass through as a separate line item on subscribers' bills the value of monetary and other PEG access support on a proportionate basis.
Section 23-212 Public Rights-of-Way Use Regulations.
[Ord. No. 2028 §3, 1-15-2008]
(a) CITY ADMINISTRATOR CITY FACILITIES DIRECTOR EMERGENCY RIGHTS-OF-WAY (OR "ROW") WORK FACILITIES PERSON PERSON(S) HAVING FACILITIES WITHIN THE RIGHTS-OF-WAY RIGHTS-OF-WAY OR ROW(1) (2) (3) (4) (5) RIGHTS-OF-WAY (OR "ROW") PERMIT RIGHTS-OF-WAY (OR "ROW") USER RIGHTS-OF-WAY (OR "ROW") WORK(1) (2) SERVICE WITHIN
Definitions. The following terms shall have the following meanings unless otherwise defined by context:
The City Administrator or such other person designated by the City to hear appeals as provided in Section 23-212(e) hereof.
Any facilities located within the public rights-of-way and owned by the City.
The City's Public Works Director or such other person designated to administer and enforce this Article.
Includes, but is not limited to, ROW work made necessary by exigent circumstances to repair, control, stabilize, rectify or correct an unexpected or unplanned outage, cut, rupture, leak or any other failure of a facility when such failure results or could result in danger to the public or a material delay or hindrance to the provision of service.
A network or system or any part thereof used for providing or delivering a service and consisting of one (1) or more lines, pipes, wires, cables, fibers, conduit facilities, cabinets, poles, vaults, pedestals, boxes, appliances, antennas, transmitters, radios, towers, gates, meters, appurtenances or other equipment.
An individual, partnership, limited liability corporation or partnership, association, joint stock company, trust, organization, corporation or other entity or any lawful successor thereto or transferee thereof.
Any person having ownership or control of facilities located within the rights-of-way.
Unless otherwise restricted herein, the surface, air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway, waterway, public easement or sidewalk in which the City now or hereafter holds any interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining facilities. "Rights-of-way" shall not include:
City facilities or the City's property other than ROW, such as City-owned or operated buildings, parks or other similar property,
Airwaves used for cellular, non-wire telecommunications or broadcast services,
Easements obtained by ROW users on private property,
Railroad rights-of-way or ground used or acquired for railroads, or
Facilities owned and used by the City for the transmission of one (1) or more services. No reference herein to "rights-of-way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for the delivery of service.
A permit granted by the City to a ROW user for ROW work.
A person performing ROW work within the rights-of-way. A ROW user shall not include ordinary vehicular or pedestrian use.
Action by a ROW user to:
Install, change, replace, relocate, remove, maintain or repair facilities located within the rights-of-way, or
To conduct work of any kind within or adjacent to the rights-of-way that results in an excavation, obstruction, disruption, damage or physical invasion or impact of any kind to the rights-of-way or the use thereof. The routine inspection of facilities shall not be considered ROW work unless the inspection requires the conduct of any of the activities or actions noted herein.
Providing or delivering an economic good or an article of commerce, including, but not limited to gas, telephone, cable television, Internet, open video systems, video services, alarm systems, steam, electricity, water, telegraph, data transmission, petroleum pipelines, sanitary or storm water sewerage or any similar or related service, to one (1) or more persons located within or outside of the City by use of facilities located within the rights-of-way.
In, along, under, over or across rights-of-way.
(b)
ROW Permits.
(1)
Application requirements.
(a)
Any person desiring to perform ROW work must first apply for and obtain a ROW permit, in addition to any other building permit, license, easement, franchise or authorization required by law. In the event of a need for emergency ROW work, the person conducting the work shall as soon as practicable notify the City of the location of the work and shall apply for the required ROW permit as soon as practicable following the commencement of the work, not to exceed the third (3rd) business day thereafter. The Director may design and issue general permits for emergency ROW work for several different locations or throughout the City.
(b)
An application for a ROW permit shall be submitted to the Director. The Director may design and make available standard forms for such applications, requiring such information as allowed by law and as the Director determine in his or her discretion to be necessary and consistent with the provisions of this Article and to accomplish the purposes of this Article. Each application shall at a minimum contain the following information for the proposed ROW work, unless otherwise waived by the Director:
(i)
The name, address and telephone number of a representative whom the City may notify or contact at any time (i.e., twenty-four (24) hours per day seven (7) days per week) concerning the work;
(ii)
If different from the applicant, the name, address and telephone number of the person on whose behalf the proposed work is to be performed;
(iii)
A description of the proposed work, including a conceptual master plan and engineering site plan or other technical drawing or depiction showing the nature, dimensions, location and description of the applicant's proposed work or facilities, their proximity to other facilities that may be affected by the proposed work and the number of street crossings and their locations and dimensions, if applicable;
(iv)
Projected commencement and termination dates and anticipated duration of the work or, if such dates are unknown, a representation that the applicant shall provide the Director with reasonable advance notice of such dates once they are determined;
(v)
Copies of any required Certificates of Insurance or performance and maintenance bonds.
(c)
The information required by the application may be submitted in the form maintained by the applicant, provided it is responsive to the application's requirements and the applicant shall be allowed a reasonable amount of time to complete the application based on the amount of data or information requested or required.
(d)
Each such application shall be accompanied by the following payments:
(i)
An application fee approved by the City to cover the cost of processing the application;
(ii)
Any other amounts due to the City from the applicant including, but not limited to, prior delinquent fees, costs and any loss, damage or expense suffered by the City because of the applicant's prior work in the rights-of-way or for any emergency actions taken by the City, but the Director may modify this requirement to the extent he determines any such fees to be in good faith dispute.
(e)
Applicants shall participate in any joint planning, construction and advance notification of such work, including coordination and consolidation of any excavation of or disturbance to the rights-of-way, as directed by the Director. When deemed necessary to accomplish the goals of this Section and to the extent permitted by law, the City reserves the right, when feasible and reasonable, to require the sharing of facilities by ROW users. Applicants shall cooperate with each other and other ROW users and the City for the best, most efficient, least intrusive, most aesthetic and least obtrusive use of the rights-of-way.
(f)
The Director shall establish procedures allowing applicants to ascertain whether existing capacity may be available from other persons utilizing the rights-of-way along the intended path of any proposed work. The Director shall also maintain indexes of all ROW permits issued, both by the ROW user and by the affected rights-of-way.
(2)
Application review and determination.
(a)
The Director shall promptly review each completed application for a ROW permit and shall grant or deny all such applications as provided herein within thirty-one (31) days of receipt thereof. Unless the application is denied, the Director shall issue a ROW permit upon determining that the applicant:
(i)
Has submitted all necessary information,
(ii)
Has paid the appropriate fees, and
(iii)
Is in full compliance with this Article and all other City ordinances. The Director may establish procedures for bulk processing of applications and periodic payment of fees to avoid excessive processing and accounting costs.
(b)
It is the intention of the City that interference with, damage to, excavation or disruption of or the placement of facilities within the City's rights-of-way should be minimized and limited in scope to the extent allowed by law to achieve the purposes of this Article. When reasonable and necessary to accomplish such purposes, the Director may require as alternatives to the proposed ROW work either less disruptive methods or different locations for facilities, provided that any required alternative:
(i)
Shall not increase expenses by more than ten percent (10%) of the applicant's costs for the work as proposed,
(ii)
Shall not result in a decline of service quality, and
(iii)
Shall be competitively neutral and non-discriminatory. The Director shall justify to the applicant that the required alternative is reasonable and necessary.
(c)
Upon receipt of an application, the Director shall determine whether any portion of the rights-of-way will be affected by the proposed work and whether the interference, disruption or placement of facilities will be more than minor in nature. In determining whether the proposed work is more than minor in nature, the Director shall consider the nature and scope of the work, its location and duration and its effect on the rights-of-way, the use thereof and neighboring properties.
(i)
If the applicant can show to the Director's reasonable satisfaction that the work involves no interference, disruption, excavation or damage to or only minor interference with the rights-of-way or that the work does not involve the placement of facilities or involves time-sensitive maintenance, then the Director shall promptly grant the ROW permit.
(ii)
If the Director determines that the effect on the rights-of-way will be more than minor in nature and no exemption under the above paragraph (c)(1) or any other provision of this Article applies, the Director shall schedule and coordinate the work and grant the ROW permit accordingly. When reasonable and necessary to accomplish the purposes of this Article, the Director may postpone issuance of a ROW permit and may give public notice of the application in an attempt to identify whether other person(s) intend to do work in the same area within a reasonable period of time, so that all ROW work in the area can be coordinated. Due regard shall be accorded applicants that are required by any law, rule, regulation, license or franchise to provide service to the area defined in the application. The Director shall not impose any coordination or scheduling requirements that prevent or unreasonably delay an applicant's access to the ROW or that create a barrier to entry.
(d)
Each ROW permit issued by the Director shall include:
(i)
Projected commencement and termination dates or, if such dates are unknown at the time the permit is issued, a provision requiring the ROW user to provide the Director with reasonable advance notice of such dates once they are determined;
(ii)
Length of affected rights-of-way, number of road crossings and identification and description of any pavement or curb cuts included in the work;
(iii)
Information regarding scheduling and coordination of work, if necessary;
(iv)
The location of any of the applicant's facilities, both those proposed and existing, and the location of any known facilities owned by another person that may be affected by the proposed work;
(v)
An acknowledgment and representation by the applicant to comply with the terms and conditions of the ROW permit and this Article; and
(vi)
Such conditions and requirements as are deemed reasonably necessary by the Director to protect structures and other facilities in the rights-of-way from damage, to restore such rights-of-way and any structures or facilities, to ensure the reasonable continuity and sight lines of pedestrian and vehicular traffic and to protect property values, the aesthetics of adjoining properties and neighborhoods and the public health, safety and welfare.
(e)
The Director may deny an application, if denial is deemed to be in the public interest, for the following reasons:
(i)
Delinquent fees, costs or expenses owed by the applicant;
(ii)
Failure to provide information required by the application or this Article;
(iii)
The applicant being in violation of the provisions of this Article or other pertinent and applicable City ordinances;
(iv)
Failure to return the ROW to its previous condition under previously issued ROW permits or after prior excavations by the applicant;
(v)
For reasons of environmental, historic or cultural sensitivity as defined by applicable Federal, State or local law;
(vi)
For the applicant's refusal to comply with alternative ROW work methods, locations or other reasonable conditions required by the Director; and
(vii)
For any other reason to protect the public health, safety and welfare, provided that such denial does not fall within the exclusive authority of the Missouri Public Service Commission or interfere with a ROW user's right of eminent domain of private property and, provided further, that such denial is imposed on a competitively neutral and non-discriminatory basis.
(3)
Permit revocation and ordinance violations.
(a)
The Director may revoke a ROW permit without fee refund after notice and an opportunity to cure, but only in the event of a substantial breach of the terms and conditions of the permit or this Article. Prior to revocation, the Director shall provide written notice to the ROW user identifying any substantial breach and allowing a reasonable period of time not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety. The cure period shall be extended by the Director on good cause shown by the ROW user. A substantial breach includes, but is not limited to, the following:
(i)
A material violation of a provision of the ROW permit or this Article;
(ii)
An evasion or attempt to evade any material provision of the ROW permit or this Article or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its residents;
(iii)
A material misrepresentation of fact in the ROW permit application;
(iv)
A failure to complete ROW work by the date specified in the ROW permit, unless an extension is obtained or unless the failure to complete the work is due to reasons beyond the ROW user's control; and
(v)
A failure to correct, upon reasonable notice and opportunity to cure as specified by the Director, work that does not conform to applicable national safety ordinances, industry construction standards, this Article or any other applicable ordinances, provided that City standards are no more stringent than those of a national safety ordinance.
(b)
Any breach of the terms and conditions of a ROW permit shall also be deemed a violation of this Article and in lieu of revocation, the Director may initiate prosecution of the ROW user for such violation.
(c)
Work In the ROW.
(1)
Jurisdiction, inspection and stop work orders.
(a)
All facilities and ROW work shall be subject to inspection by the City and the supervision of all Federal, State and local authorities having jurisdiction in such matters to ensure compliance with all applicable laws, ordinances, departmental rules and regulations and the ROW permit.
(b)
The Director shall have full access to all portions of the ROW Work and may issue stop work orders and corrective orders to prevent unauthorized work or substandard work as established in Subsection (c)(7) hereof. Such orders:
(i)
May be delivered personally or by certified mail to the address(es) listed on the application for the ROW permit or the person in charge of the construction site at the time of delivery;
(ii)
Shall state that substandard work or work not authorized by the ROW permit is being carried out, summarize the substandard or unauthorized work and provide a period of not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety; and
(iii)
May be enforced by equitable action in the Circuit Court of St. Louis County, Missouri, and in such case the person responsible for the substandard or unauthorized work shall be liable for all costs and expenses incurred by the City in enforcing such orders, including reasonable attorney's fees, in addition to any and all penalties established in this Article.
(2)
Underground facilities.
(a)
In conjunction with the City's long-standing policy favoring underground construction, no person may erect, construct or install new poles or other facilities above the surface of the rights-of-way without the written permission of the City, unless the City's authority has been pre-empted by State or Federal law. Such permission may be granted through a ROW permit when other similar facilities exist above ground or when conditions are such that underground construction is impossible, impractical or economically unfeasible, as determined by the City, and when in the City's judgment the above ground construction has minimal aesthetic impact on the area where the construction is proposed.
(b)
During installation of facilities and to the extent authorized by law, existing underground conduits shall be used whenever feasible and permitted by the owner thereof.
(c)
In the case of new construction or property development, the developer or property owner shall give reasonable written notice, to other potential ROW users as directed by the City, of the particular date on which open trenching will be available for installation of facilities. Costs of trenching and easements required to bring facilities within the development shall be borne by the developer or property owner; except that if the facilities are not installed within five (5) working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then once the trenches are thereafter closed, the cost of new trenching shall be borne by the person installing the facilities.
(3)
Above ground facilities.
(a)
The Director may designate certain locations or facilities in the ROW to be excluded from use by the applicant for its facilities, including, but not limited to:
(i)
Ornamental or similar specially-designed street lights,
(ii)
Designated historic areas,
(iii)
Facilities, equipment, structures or locations that do not have electrical service adequate or appropriate for the proposed facilities or cannot safely bear the weight or wind loading thereof,
(iv)
Facilities, equipment, structures or locations that in the reasonable judgment of the Director are incompatible with the proposed facilities or would be rendered unsafe or unstable by the installation, and
(v)
Facilities, equipment, structures or locations that have been designated or planned for other use or are not otherwise available for use by the applicant due to engineering, technological, proprietary, legal or other limitations or restrictions.
(b)
Above ground facilities shall be a neutral color and shall not be bright, reflective or metallic. Black, gray and tan shall be considered neutral colors, as shall any color that blends with the surrounding dominant color and helps to camouflage the facilities. Facilities shall be located in such a manner as to reduce or eliminate their visibility. A sight proof landscape screen may be required for any authorized above ground facility taller than three (3) feet in height or covering in excess of four (4) square feet in size. Such screening shall be sufficient to reasonably conceal the facility. A landscape plan identifying the size and species of landscaping materials shall be approved by the Director prior to installation of any facility requiring landscape screening. The person having facilities within the ROW shall be responsible for the installation, repair or replacement of screening materials. Alternative screening or concealment may be approved by the Director to the extent it meets or exceeds the purposes of these requirements.
(c)
Above ground facilities shall be constructed and maintained in such a manner so as not to emit any unnecessary or intrusive noise and shall comply with all other applicable regulations and standards established by the City or State or Federal law.
(d)
If the application of this Subsection excludes locations for above ground facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director shall cooperate in good faith with the applicant to attempt to find suitable alternatives, but such alternatives may exceed the cost increase limitation established by Section 23-212(b)(2)(b) and the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
(4)
Relocation of equipment and facilities.
(a)
In the event of an emergency or where construction equipment or facilities create or are contributing to an imminent danger to health, safety or property, the City may, to the extent allowed by law, remove, re-lay or relocate such construction equipment or the pertinent parts of such facilities, without charge to the City for such action or for restoration or repair. The City shall attempt to notify the person having facilities within the ROW prior to taking such action, but the inability to do so shall not prevent same. Thereafter, the City shall notify the person having facilities within the ROW as soon as practicable.
(b)
At the City's direction, all facilities shall be moved underground and the cost shall be solely the obligation of the person having facilities within the ROW (or as otherwise allowed or required by law).
(c)
At the City's direction, a person having facilities within the ROW shall protect, support, disconnect, relocate or remove facilities, at its own cost and expense, when necessary to accommodate the construction, improvement, expansion, relocation or maintenance of streets or other public works or to protect the ROW or the public health, safety or welfare.
(d)
A person having facilities within the ROW shall, on the reasonable request of any person and after reasonable advance written notice, protect, support, disconnect, relocate or remove facilities to accommodate such person and the actual cost, reasonably incurred, of such actions shall be paid by the person requesting such action. The person having facilities within the ROW taking such action may require such payment in advance.
(e)
Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Subsection (c)(6) of this Section.
(f)
No action hereunder shall be deemed a taking of property and no person shall be entitled to any compensation therefor. No location of any facilities within the rights-of-way shall be a vested interest.
(5)
Property repair and alterations.
(a)
During any ROW work, the person doing the work shall protect from damage any and all existing structures and property belonging to the City and any other person. Any and all rights-of-way, public property or private property disturbed or damaged during the work shall be repaired or replaced by the person doing the work or the person on whose behalf the work is being done and such person shall immediately notify the owner of the fact of any damaged property. Such repair or replacement shall be completed within a reasonable time specified by the Director and to the Director's satisfaction.
(b)
Any alteration to the existing water mains, sewerage or drainage system or to any City, State or other public structures or facilities in the rights-of-way required on account of the construction, installation, repair or maintenance of facilities within the rights-of-way shall be made at the sole cost and expense of the owner of such facilities.
(6)
Removal, abandonment, transfer and relocation of facilities.
(a)
If a person having facilities within the ROW:
(i)
Installs the facilities within the ROW without having complied with the requirements of this Article, or
(ii)
Abandons the facilities, the City may require the removal of the facilities at the expense of the person having facilities within the ROW or require the transfer of the facilities as provided herein.
(b)
If the City requires removal of the facilities, the person shall obtain a ROW permit and shall abide by all requirements of this Article. The liability, indemnity, insurance and bonding requirements required herein shall continue in full force and effect during and after the period of removal and restoration and until full compliance by the person with the terms and conditions of the ROW permit and the requirements of this Article.
(c)
If the person fails to remove the facilities after having been directed to do so, the City may, to the extent permitted by law, have the removal done at the person's expense. Alternatively, the City may permit the abandonment, without removal, of the facilities if the Director determines that abandonment is not likely to prevent or significantly impair the future use, repair, excavation, maintenance or construction of the ROW.
(d)
If the person fails to remove the facilities after having been directed to do so, the City may, to the extent permitted by law, decide that the ownership of the facilities should be transferred to the City or to such person as directed by the City. In either case, the owner of the facilities shall submit a written instrument, satisfactory in form to the City, transferring to the City or to such person as directed by the City, ownership of the facilities. The City may sell, assign or transfer all or part of the facilities so transferred.
(e)
The City shall not remove or seek to possess or transfer the facilities until thirty (30) days have passed following written notice by the Director to the person having facilities within the ROW of the City's intent to so act. The Director may choose not to act on good cause shown by the person having facilities within the ROW.
(7)
Standards for ROW work.
(a)
Except for emergency ROW work as provided in Section 23-212 (b)(1)(a), ROW work shall be performed only upon issuance and in accordance with the requirements of a ROW permit. At all times during the work, ROW permits shall be conspicuously displayed at the work site and shall be available for inspection by the Director.
(b)
If at any time it appears that the duration or scope of the ROW work is or will become materially different from that allowed by the ROW permit, the ROW user shall inform the Director. The Director may issue a waiver, an extension or a revised ROW permit or require that the ROW user reapply for a ROW permit in accordance with all requirements of this Article.
(c)
ROW users shall not open or encumber more of the rights-of-way than is reasonably necessary to complete the ROW work in the most expeditious manner or allow excavations to remain open longer than is necessary to complete the work.
(d)
All ROW work that affects vehicular or pedestrian traffic shall be properly signed, barricaded and otherwise protected at the ROW user's expense. The ROW user shall be responsible for providing adequate traffic control to the area surrounding the work as determined by the Director.
(e)
The ROW user shall perform the ROW work at such times that will allow the least interference with the normal flow of traffic and the peace and quiet of the neighborhood, as permitted by the Director. Unless otherwise provided by the Director in the permit, non-emergency ROW work on arterial and collector streets may not be accomplished during the hours of 7:00 a.m. to 8:30 a.m. and 4:00 p.m. to 6:00 p.m. in order to minimize disruption of traffic flow.
(f)
The ROW user shall notify the City no less than three (3) working days in advance of any ROW work that would require any street closure or would reduce traffic flow to less than two (2) lanes of moving traffic for more than four (4) hours. Except in the event of emergency ROW work, no such closure shall take place without notice and prior authorization from the City.
(g)
All ROW work shall be in accordance with all applicable Sections of the Occupational Safety and Health Act of 1970, the National Electrical Safety Code and other Federal, State or local laws and regulations that may apply, including, without limitation, local health, safety, construction and zoning ordinances and laws and accepted industry practices, all as hereafter may be amended or adopted. In the event of a conflict among ordinances and standards, the most stringent ordinance or standard shall apply (except insofar as that ordinance or standard, if followed, would result in facilities that could not meet requirements of Federal, State or local law).
(h)
All facilities shall be installed and located to cause minimum interference with the rights and convenience of property owners, other ROW users and the City. Facilities shall not be placed where they will disrupt or interfere with other facilities or public improvements or obstruct or hinder in any manner the various utilities serving the residents and businesses in the City or public improvements.
(i)
All facilities shall be of good and durable quality.
(j)
All ROW work shall be conducted in accordance with good engineering practices, performed by experienced and properly trained personnel so as not to endanger any person or property or to unreasonably interfere in any manner with the rights-of-ways or legal rights of any property owner, including the City, or unnecessarily hinder or obstruct pedestrian or vehicular traffic.
(k)
All safety practices required by law shall be used during ROW work, including commonly accepted methods and devices to prevent failures and accidents that are likely to cause damage, injury or nuisance to the public.
(l)
Any contractor or subcontractor of a ROW user must be properly licensed under laws of the State and all applicable local ordinances and each contractor or subcontractor shall have the same obligations with respect to its work as a ROW user would have pursuant to this Article. A ROW user:
(i)
Must ensure that contractors, subcontractors and all employees performing ROW work are trained and experienced,
(ii)
Shall be responsible for ensuring that all work is performed consistent with the ROW permit and applicable law,
(iii)
Shall be fully responsible for all acts or omissions of contractors or subcontractors,
(iv)
Shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and
(v)
Shall implement a quality control program to ensure that the work is properly performed.
(m)
A ROW user shall not place or cause to be placed any sort of signs, advertisements or other extraneous markings on the facilities or in the ROW, whether relating to the ROW user or any other person, except such necessary minimal markings approved by the City as necessary to identify the facilities for service, repair, maintenance or emergency purposes or as may be otherwise required to be affixed by applicable law or regulation.
(n)
Unless otherwise approved in writing by the City, a ROW user shall not remove, cut or damage any trees or their roots within the ROW.
(o)
Street crossings will be bored at the direction of the Director.
(8)
Restoring and maintaining the rights-of-way.
(a)
To complete any ROW work, the ROW user shall restore the ROW and surrounding areas, including, but not limited to, any pavement, foundation, concrete slabs or curbs, screening, landscaping or vegetation, and shall comply with other reasonable conditions of the Director. Restoration of the ROW shall be completed within the dates specified in the ROW permit unless the Director issues a waiver, extension or a new or revised ROW permit.
(b)
It shall be the duty of any person making an excavation in the ROW to backfill such excavations and restore the surface in accordance with the City's minimum prescribed standards for such surfaces or the following standards as determined by the Director.
(i)
If the excavations are made in the improved portion of the ROW, twelve (12) inches of granular backfill will be placed over exposed facilities and controlled low strength material (CLSM) will fill the hole within eight (8) inches of the finished surface for concrete pavements. There will be a plastic membrane placed between the rock base and the CLSM to prevent the material from bleeding into the rock base. The remaining eight (8) inches will be restored by placing a twenty-eight (28) day minimum strength, four thousand five hundred (4,500) psi concrete mix.
(ii)
If the excavations are made in the improved portion of an asphalt or combination street, twelve (12) inches of granular backfill will be placed over exposed facilities and CLSM will fill the hole within nine (9) inches of the finished surface. There will be a plastic membrane placed between the rock base and the CLSM to prevent the material from bleeding into the rock base. The remaining nine (9) inches will be restored by placing a six (6) inch thick, twenty-eight (28) day minimum strength, four thousand five hundred (4,500) psi concrete mix under a three (3) inch asphalt concrete lift of type C mix to meet existing grades.
(iii)
Construction of asphalt driveway entrances in residential ROW will be constructed of six (6) inches of compacted rock base and three (3) inches of type C asphalt concrete mix. Construction of asphalt driveway entrances in commercial ROW will be constructed of four (4) inches of compacted rock base, seven and one-half (7.5) inches of type X and three (3) inches of type C asphalt concrete mix. Concrete driveway approaches will consist of a four (4) inch compacted rock base and be a minimum of six (6) inches thick in residential ROW and eight (8) inches thick in commercial ROW.
(c)
If a ROW user fails to restore the ROW within the date specified either by the ROW permit or any extension thereof as granted by the Director, the City may perform its own restoration. The City may also opt to perform its own restoration regardless of any failure by the ROW user, in which case the ROW permit or any amendment or revision thereto, shall note such option. In either event, if the City performs the restoration, the ROW user shall be responsible for reimbursing the City's reasonable actual restoration costs within thirty (30) days of invoice.
(d)
Every ROW user to whom a ROW permit has been granted shall guarantee for a period of four (4) years the restoration of the ROW in the area where the ROW user conducted excavation. During this period, the ROW user shall, upon notification from the Director, correct all restoration work to the extent necessary as required by the Director. Said work shall be completed within a reasonable time, not to exceed thirty (30) calendar days from receipt of the Director's notice unless otherwise permitted by the Director. If a ROW user fails to restore the ROW within the time specified, the City may perform the work and the ROW user shall be responsible for reimbursing the City's reasonable actual restoration costs within thirty (30) days of invoice. The Director may extend the cure period on good cause shown.
(e)
A ROW user shall not be relieved of the obligation to complete the necessary right-of-way restoration and maintenance because of the existence of any performance bond required by this Article.
(9)
Any person performing ROW work shall provide written notice to all property owners within one hundred eighty-five (185) feet of the site at least forty-eight (48) hours prior to any installation, replacement or expansion of its facilities. Notice shall include a reasonably detailed description of work to be done, the location of work and the time and duration of the work.
(d)
Bonds — Insurance — Surety — Indemnification — Penalties.
(1)
Performance and maintenance bonds.
(a)
Prior to any ROW work, a ROW user shall establish in the City's favor a performance and maintenance bond in an amount to be determined by the Director to ensure the restoration of the rights-of-way. The bond shall continue in full force and effect for a period of twenty-four (24) months following completion of the work. The Director shall have the authority to extend the maintenance bond period for up to an additional twenty-four (24) months. The Director may waive this requirement when the work involves no or only minor disruption or damage to the rights-of-way. The Director shall waive this requirement when the ROW user has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance with State and local regulations.
(b)
If a ROW user fails to complete the ROW work in a safe, timely and competent manner or if the completed restorative work fails without remediation within the time period for the bond (as determined by the Director), then after notice and a reasonable opportunity to cure there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the ROW user and the cost of completing work within or restoring the rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against a security fund or letter of credit where such amount exceeds that available under a security fund or letter of credit.
(c)
Upon completion of ROW work to the satisfaction of the Director and upon lapse of the bond period, including any extension by the Director, the City shall release the bond.
(d)
The bond shall be issued by a surety with an "A" or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition, shall be subject to the approval of the City's attorney and shall contain the following endorsement:
"This bond may not be cancelled or allowed to lapse until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."
(e)
In lieu of the bond required herein, the ROW user may establish in the City's favor such other security as the Director may determine to be commensurate with the noted bonding requirements, including but not limited to an annual bond to be maintained in the minimum amount of twenty-five thousand dollars ($25,000.00).
(2)
Insurance.
(a)
All ROW users shall maintain, for the duration of any ROW work and, when applicable, for as long as the ROW user has facilities within the rights-of-way, at least the following liability insurance coverage: Workers' Compensation and employer liability insurance to meet all requirements of Missouri law and commercial general liability insurance with respect to the construction, operation and maintenance of the facilities and the conduct of the ROW user's business in the City, in the minimum amounts of:
(i)
Two million dollars ($2,000,000.00) for property damage resulting from any one (1) accident;
(ii)
Five millions dollars ($5,000,000.00) for personal bodily injury or death resulting from any one (1) accident; and
(iii)
Two millions dollars ($2,000,000.00) for all other types of liability. These insurance requirements shall not be construed to limit the liability of any person or to impose any liability on the City or to waive any sovereign immunity.
(b)
All insurance policies shall be with sureties qualified to do business in the State of Missouri, with an "A" or better rating of insurance by Best's Key Rating Guide, Property/Casualty Edition and in a form approved by the City.
(c)
All insurance policies shall be available for review by the City and a ROW user having facilities within the rights-of-way shall keep on file with the City current certificates of insurance.
(d)
All general liability insurance policies shall name the City, its officers, boards, board members, commissions, commissioners, agents and employees as additional insureds and shall further provide that any cancellation or reduction in coverage shall not be effective unless thirty (30) days' prior written notice thereof has been given to the Director. A ROW user shall not cancel any required insurance policy without submission of proof that it has obtained alternative insurance that complies with this Article.
(e)
The Director may exempt in writing from these insurance requirements any self-insured ROW user, provided that the ROW user demonstrates to the Director's satisfaction that the ROW user's self-insurance plan is commensurate with said requirements and that the ROW user has sufficient resources to meet all potential risks, liabilities and obligations contemplated by the requirements of this Article. The Director may require a security fund or letter of credit as a condition to a self-insured's exemption. The Director shall waive this requirement when the ROW user has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of non-compliance with applicable regulatory law.
(3)
Indemnification.
(a)
Any ROW user granted a ROW permit and any person having facilities within the rights-of-way, as partial consideration for the privilege granted, shall, at its sole cost and expense, indemnify, hold harmless and defend the City, its officials, boards, board members, commissions, commissioners, agents and employees, against any and all claims, suits, causes of action, proceedings and judgments for damages or equitable relief arising out of:
(i)
Any ROW work, including, but not limited to, the construction, maintenance, repair or replacement of the facilities,
(ii)
The operation of its facilities,
(iii)
Failure to secure consents from landowners, or
(iv)
Any actions taken or omissions made by the person pursuant to the authority of this Article.
(b)
The foregoing indemnity provisions include, but are not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or proceeding prior to the person assuming such defense. The City shall notify a person of claims and suits within seven (7) business days of its actual knowledge of the existence of such claim, suit or proceeding. Once a person assumes such defense, the City may at its option continue to participate in the defense at its own expense.
(c)
Notwithstanding anything to the contrary contained in this Article, the City shall not be so indemnified or reimbursed in relation to any amounts attributable to:
(d)
Recovery by the City of any amounts under insurance, a performance bond or otherwise does not limit a person's duty to indemnify the City in any way; nor shall such recovery relieve a person of amounts owed to the City or in any respect prevent the City from exercising any other right or remedy it may have.
(4)
Penalties. Any person violating any provision of this Article shall, upon conviction by the City's Municipal Court, be punished by a fine not to exceed one thousand dollars ($1,000.00) or by imprisonment not to exceed ninety (90) days or by both such fine and imprisonment. Each day the violation continues may be charged as a separate offense.
(e)
Dispute Resolutions, Appeals And Arbitration.
(1)
The Director shall make a final determination as to any matter concerning the grant, denial or revocation of a ROW permit as provided in this Article. On the request of an applicant or a ROW user and within a reasonable period of time, the Director also shall make a final determination as to any other issue relating to the use of the ROW, the imposition of any fee or the application of any provision of this Article, provided however, that this review shall not apply to matters being prosecuted in the Municipal Court. Any final determination of the Director shall be subject to review as provided herein.
(2)
Any person aggrieved by a final determination of the Director may appeal in writing to the City Administrator within five (5) business days thereof. The appeal shall assert specific grounds for review and the City Administrator shall render a decision on the appeal within fifteen (15) business days of receipt affirming, reversing or modifying the determination of the Director. The City Administrator may extend this time period for the purpose of any investigation or hearing deemed necessary. A decision affirming the Director's determination shall be in writing and supported by findings establishing the reasonableness of the decision.
(3)
Any person aggrieved by the final determination of the City Administrator may file a petition for review pursuant to Chapter 536 of the Revised Statutes of Missouri, as amended, in the Circuit Court of the County of St. Louis. Such petition shall be filed within thirty (30) days after the City Administrator's final determination.
(4)
Arbitration and mediation.
(a)
On agreement of the parties and in addition to any other remedies, any final decision of the City Administrator may be submitted to mediation or binding arbitration.
(b)
In the event of mediation, the City Administrator and the applicant or ROW user shall agree to a mediator. The costs and fees of the mediator shall be borne equally by the parties and each party shall pay its own costs, disbursements and attorney fees.
(c)
In the event of arbitration, the City Administrator and the applicant or ROW user shall agree to a single arbitrator. The costs and fees of the arbitrator shall be borne equally by the parties.
If the parties cannot agree on an arbitrator, the matter shall be resolved by a three (3) person arbitration panel consisting of one (1) arbitrator selected by the City Administrator, one (1) arbitrator selected by the applicant or ROW user and one (1) person selected by the other two (2) arbitrators, in which case each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the expense of the third (3rd) arbitrator and of the arbitration. Each party shall also pay its own costs, disbursements and attorney fees. |
(f)
Miscellaneous.
(1)
After the completion of ROW work the ROW user shall provide to the City as-built drawings, maps or other comparable records as determined by the Director, drawn to scale and certified to the City as reasonably depicting the location of all facilities constructed pursuant to the ROW permit. Such records may be provided to the Director in the form maintained by the ROW user, but when available to the ROW user, shall be submitted in automated formats that are compatible with City systems, as determined by the Director, or in hard copy otherwise.
(2)
Upon failure of a ROW user to commence, pursue or complete any ROW work required by law or by the provisions of this Article to be done in any street, within the time prescribed and to the reasonable satisfaction of the City, the City may, at its option, after thirty (30) days' notice, cause such work to be done and the ROW user shall pay to the City the cost thereof in the itemized amounts reported by the City to the ROW user within thirty (30) days after receipt of such itemized report.
(3)
Upon ten (10) days' written notice and with the supervision of the City or as otherwise provided by law, a ROW user shall have the authority to trim trees that overhang rights-of-way of the City so as to prevent the branches of such trees from coming in contact with its facilities, at its own expense subject to the supervision and direction of the City. Nothing in this paragraph shall authorize the trimming of trees on private property without permission of the property owner. All cut materials shall be properly disposed.
(4)
During ROW work by a ROW user, the City shall have the right to install and to thereafter maintain at its own cost in any excavation to or other applicable disturbance of the ROW any parallel facilities of its own that do not unreasonably interfere with the operations of other facilities.
(5)
Nothing in this Article shall be in preference or hindrance to the right of the City and any board, authority, commission or public service corporation of the City to use or occupy the rights-of-way or to perform or carry on any public works or public improvements of any description.
Section 23-213 Zoning and Police Power Regulations.
[Ord. No. 2028 §4, 1-15-2008]
(a) DIRECTOR FACILITIES FACILITIES PERMIT PERSON SERVICE
Definitions. The following terms shall have the following meanings unless otherwise defined by context:
The City's Public Works Director or such other person designated to administer and enforce this Article.
A network or system or any part thereof, used for providing or delivering a service and consisting of one (1) or more lines, pipes, irrigation systems, wires, cables, fibers, conduit facilities, cabinets, poles, vaults, pedestals, boxes, appliances, antennas, transmitters, radios, towers, gates, meters, appurtenances or other equipment.
A permit granted by the City for placement of facilities on private property.
An individual, partnership, limited liability corporation or partnership, association, joint stock company, trust, organization, corporation or other entity or any lawful successor thereto or transferee thereof.
Providing or delivering an economic good or an article of commerce, including, but not limited to gas, telephone, cable television, Internet, open video systems, video services, alarm systems, steam, electricity, water, telegraph, data transmission, petroleum pipelines, sanitary or storm water sewerage or any similar or related service, to one (1) or more persons located within or outside of the City using facilities located within the City.
(b)
Facilities Permits.
(1)
Any person desiring to place facilities on private property must first apply for and obtain a facilities permit, in addition to any other building permit, license, easement, franchise or authorization required by law. The Director may design and make available standard forms for such applications, requiring such information as allowed by law and as the Director determines in his or her discretion to be necessary and consistent with the provisions of this Article and to accomplish the purposes of this Article. Each application shall at a minimum contain the following information, unless otherwise waived by the Director:
(a)
The name of the person on whose behalf the facilities are to be installed and the name, address and telephone number of a representative whom the City may notify or contact at any time (i.e., twenty-four (24) hours per day seven (7) days per week) concerning the facilities;
(b)
A description of the proposed work, including a site plan and such plans or technical drawings or depictions showing the nature, dimensions and description of the facilities, their location and their proximity to other facilities that may be affected by their installation.
(2)
Each such application shall be accompanied by an application fee approved by the City to cover the cost of processing the application.
(3)
Application review and determination.
(a)
The Director shall promptly review each application and shall grant or deny the application within thirty-one (31) days. Unless the application is denied pursuant to Subparagraph (d) hereof, the Director shall issue a facilities permit upon determining that the applicant:
(i)
Has submitted all necessary information,
(ii)
Has paid the appropriate fees, and
(iii)
Is in full compliance with this Article and all other City ordinances. The Director may establish procedures for bulk processing of applications and periodic payment of fees to avoid excessive processing and accounting costs.
(b)
It is the intention of the City that proposed facilities will not impair public safety, harm property values or significant sight lines or degrade the aesthetics of the adjoining properties or neighborhood and that the placement and appearance of facilities on private property should be minimized and limited in scope to the extent allowed by law to achieve the purposes of this Section. To accomplish such purposes, the Director may impose conditions on facilities permits, including alternative landscaping, designs or locations, provided that such conditions are reasonable and necessary, shall not result in a decline of service quality and are competitively neutral and non-discriminatory.
(c)
An applicant receiving a facilities permit shall promptly notify the Director of any material changes in the information submitted in the application or included in the permit. The Director may issue a revised facilities permit or require that the applicant reapply for a facilities permit.
(d)
The Director may deny an application, if denial is deemed to be in the public interest, for the following reasons:
(i)
Delinquent fees, costs or expenses owed by the applicant;
(ii)
Failure to provide required information;
(iii)
The applicant being in violation of the provisions of this Article or other City ordinances;
(iv)
For reasons of environmental, historic or cultural sensitivity, as defined by applicable Federal, State or local law;
(v)
For the applicant's refusal to comply with reasonable conditions required by the Director; and
(vi)
For any other reason to protect the public health, safety and welfare, provided that such denial does not fall within the exclusive authority of the Missouri Public Service Commission and is imposed on a competitively neutral and non-discriminatory basis.
(4)
Permit revocation and ordinance violations.
(a)
The Director may revoke a facilities permit without fee refund after notice and an opportunity to cure, but only in the event of a substantial breach of the terms and conditions of the permit or this Article. Prior to revocation, the Director shall provide written notice to the responsible person identifying any substantial breach and allowing a reasonable period of time not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety. The cure period shall be extended by the Director on good cause shown. A substantial breach includes, but is not limited to, the following:
(i)
A material violation of the facilities permit or this Article;
(ii)
An evasion or attempt to evade any material provision of the permit or this Article or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its residents;
(iii)
A material misrepresentation of fact in the permit application;
(iv)
A failure to complete facilities installation by the date specified in the permit, unless an extension is obtained or unless the failure to complete the work is due to reasons beyond the applicant's control; and
(v)
A failure to correct, upon reasonable notice and opportunity to cure as specified by the Director, work that does not conform to applicable national safety ordinances, industry construction standards or the City's pertinent and applicable ordinances, including but not limited to this Article, provided that City standards are no more stringent than those of a national safety ordinance.
(b)
Any breach of the terms and conditions of a facilities permit shall also be deemed a violation of this Article and in lieu of revocation, the Director may initiate prosecution of the applicant or the facilities owner for such violation.
(5)
Appeals and alternative dispute resolution.
(a)
Any person aggrieved by a final determination of the Director may appeal in writing to the City Administrator within five (5) business days thereof. The appeal shall assert specific grounds for review and the City Administrator shall render a decision on the appeal within fifteen (15) business days of its receipt affirming, reversing or modifying the determination of the Director. The City Administrator may extend this time period for the purpose of any investigation or hearing deemed necessary. A decision affirming the Director's determination shall be in writing and supported by findings establishing the reasonableness of the decision. Any person aggrieved by the final determination of the City Administrator may file a petition for review pursuant to Chapter 536 of the Revised Statutes of Missouri, as amended, in the Circuit Court of the County of St. Louis. Such petition shall be filed within thirty (30) days after the City Administrator's final determination.
(b)
On agreement of the parties and in addition to any other remedies, any final decision of the City Administrator may be submitted to mediation or binding arbitration.
(i)
In the event of mediation, the City Administrator and the applicant shall agree to a mediator. The costs and fees of the mediator shall be borne equally by the parties and each party shall pay its own costs, disbursements and attorney fees.
(ii)
In the event of arbitration, the City Administrator and the applicant shall agree to a single arbitrator. The costs and fees of the arbitrator shall be borne equally by the parties. If the parties cannot agree on an arbitrator, the matter shall be resolved by a three (3) person arbitration panel consisting of one (1) arbitrator selected by the City Administrator, one (1) arbitrator selected by the applicant or facilities owner and one (1) person selected by the other two (2) arbitrators, in which case each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the expense of the third (3rd) arbitrator and of the arbitration. Each party shall also pay its own costs, disbursements and attorney fees.
(c)
Facilities Regulations.
(1)
The following general regulations apply to the placement and appearance of facilities:
(a)
Facilities shall be placed underground, except when other similar facilities exist above ground or when conditions are such that underground construction is impossible, impractical or economically unfeasible, as determined by the City, and when in the City's judgment the above ground construction has minimal aesthetic impact on the area where the construction is proposed. Facilities shall not be located so as to interfere or be likely to interfere with any public facilities or use of public property.
(b)
Facilities shall be located in such a manner as to reduce or eliminate their visibility. Non-residential zoning districts are preferred to residential zoning districts. Preferred locations in order of priority in both type districts are (a) thoroughfare landscape easements,
(c)
Rear yards, and
(d)
Street side yards on a corner lot behind the front yard setback. Placements within side yards not bordered by a street or within front yards are discouraged.
(e)
Facilities shall be a neutral color and shall not be bright, reflective or metallic. Black, gray and tan shall be considered neutral colors, as shall any color that blends with the surrounding dominant color and helps to camouflage the facilities. Sight proof screening, landscape or otherwise, may be required for any facility taller than three (3) feet in height or covering in excess of four (4) square feet in size. Such screening shall be sufficient to reasonably conceal the facility. A landscape plan identifying the size and species of landscaping materials shall be approved by the Director prior to installation of any facility requiring landscape screening. The person responsible for the facilities shall be responsible for the installation, repair or replacement of screening materials. Alternative concealment may be approved by the Director to the extent it meets or exceeds the purposes of these requirements.
(f)
Facilities shall be constructed and maintained in a safe manner so as to not emit any unnecessary or intrusive noise and in accordance with all applicable provisions of the Occupational Safety and Health Act of 1970, the National Electrical Safety Code and all other applicable Federal, State or local laws and regulations.
(g)
No person shall place or cause to be placed any sort of signs, advertisements or other extraneous markings on the facilities, except such necessary minimal markings approved by the City as necessary to identify the facilities for service, repair, maintenance or emergency purposes or as may be otherwise required to be affixed by applicable law or regulation.
(h)
If the application of this Subsection excludes locations for facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director shall cooperate in good faith with the applicant to attempt to find suitable alternatives, but the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
(2)
Any person installing, repairing, maintaining, removing or operating facilities, and the person on whose behalf the work is being done, shall protect from damage any and all existing structures and property belonging to the City and any other person. Any and all rights-of-way, public property or private property disturbed or damaged during the work shall be repaired or replaced and the responsible person shall immediately notify the owner of the fact of the damaged property. Such repair or replacement shall be completed within a reasonable time specified by the Director and to the Director's satisfaction.
(3)
The applicant shall provide written notice to all property owners within one hundred eighty-five (185) feet of the site at least forty-eight (48) hours prior to any installation, replacement or expansion of its facilities. Notice shall include a reasonably detailed description of work to be done, the location of work and the time and duration of the work.
(4)
At the City's direction, a person owning or controlling facilities shall protect, support, disconnect, relocate or remove facilities, at its own cost and expense, when necessary to accommodate the construction, improvement, expansion, relocation or maintenance of streets or other public works or to protect the ROW or the public health, safety or welfare.
(5)
If a person installs facilities without having complied with the requirements of this Article or abandons the facilities, said person shall remove the facilities and if the person fails to remove the facilities within a reasonable period of time, the City may, to the extent permitted by law, have the removal done at the person's expense.
(6)
Facilities shall be subject to all other applicable regulations and standards as established as part of the City Code, including but not limited to building codes, zoning requirements and rights-of-way management regulations, in addition to the regulations provided herein.
Section 23-214 Penalty.
[Ord. No. 2028 §5, 1-15-2008]
Any person found guilty of violating any provision of this Article shall be punished by a fine not to exceed one thousand dollars ($1,000.00) or by imprisonment not to exceed ninety (90) days or by both such fine and imprisonment and each day the violation continues shall constitute a separate offense.