A.
Declaration Of Findings. The City hereby declares as a legislative
finding that the rights-of-way within the City of Green Park:
1.
Are a unique and physically limited resource;
2.
Are critical to the travel and transport of persons and property
in the City; and
3.
Are intended for public uses and must be managed and controlled
consistent with that intent; and can be partially occupied by facilities
and public service entities to the enhancement of the health, welfare,
and general economic well-being of the City and its citizens.
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Such findings require adoption of regulations established by
this Code to ensure coordination of users, maximize available space,
reduce maintenance and costs to the public, and facilitate entry of
a maximum, most efficient number of ROW users that will serve the
public interest.
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B.
Title. This Chapter may be referred to and cited as the "Rights-of-Way
Management and Cable Services Code" or herein as the "Code" of the
City of Green Park.
C.
Applicability; Preemption. The requirements of this Code shall apply
to the full extent of the terms herein, including on all excavations
and use, construction, operation, and maintenance of facilities or
structures in the rights-of-way of the City, and shall be limited
in scope or application only to the extent as may be required by applicable
Federal or State law, including such changes in applicable law as
may be hereinafter enacted. If any Section, Subsection, sentence,
clause, phrase, or portion of this Code is now or in the future superseded
or preempted by State or Federal law or found by a court of competent
jurisdiction to be unauthorized, such provision shall be automatically
interpreted and applied as required by law. No provisions of this
Code shall be disregarded pursuant to this Subsection except on determination
by the City to such effect based on specific factual circumstances.
Because numerous types of users and uses of the rights-of-way may
be subject to various or changing regulatory schemes under Federal
or State law, any such limitation or qualification that may be applicable
to less than all users and uses of the rights-of-way are not duplicated
herein, but are nevertheless incorporated herein, whenever application
is so required by law, including but not limited to applicable provisions
of Chapter 67, RSMo., and other applicable Missouri and Federal law.
Nothing in this Code shall be interpreted to unilaterally deprive
any person of any rights or obligations imposed by any binding and
existing valid ROW use agreement, franchise, or other authorization
during the term thereof and shall impose obligations on any such person
additional to those included in such ROW use agreement, franchise,
or other authorization except where prohibited by applicable law.
The failure of the City to enforce any provision herein or the failure
of any person to comply with any provision herein shall not be a waiver
of the City's right to enforce such provisions nor shall it in
any way constitute evidence or agreement by the City that such person
has a valid existing ROW use agreement, franchise or other authorization.
The provisions of this Code shall apply irrespective of whether a
ROW user is determined to be operating pursuant to a valid franchise,
ROW use agreement, or other authorization.
D.
Preservation Of Police Power Authority.
1.
ROW Users Subject To Other Laws, Police Power.
a.
Zoning, Safety, And Building Code Compliance. ROW users shall
at all times be subject to the lawful exercise of the police powers
of the City, including but not limited to all police powers regarding
zoning, supervision of the restoration of the rights-of-way, building
and safety regulations, and control of the rights-of-way. Installation
of all facilities in the rights-of-way are subject to and must be
in compliance with all zoning and safety and building code requirements.
For applications for installation of any facility in the rights-of-way,
the most restrictive adjacent underlying zoning district classification
shall apply unless otherwise specifically zoned and designated on
the official Zoning District Map.
b.
No Waiver. No action or omission of the City shall operate as
a future waiver of any rights of the City under this Code. Except
where rights are expressly granted or waived by a permit or other
agreement or authorization, they are reserved, whether or not expressly
enumerated.
2.
Abandonment And Unusable Facilities.
a.
Abandoned Facility Requirements. ROW users owning facilities
in the rights-of-way shall not abandon or otherwise cease to use the
facilities for longer than one (1) year, unless, prior to doing so,
the ROW user satisfies one (1) of the following:
(1)
Provides written notice of such intention, and
removes its facilities in compliance with all requirements and replaces
or restores any damage or disturbance caused by the removal at its
own expense; or
(2)
Provides information satisfactory to the City that
the ROW user's obligations for its facilities in the rights-of-way
will be lawfully assumed by another authorized ROW user; or
(3)
Submits to the City a proposal and instruments
for transferring ownership of its facilities to the City. If the ROW
user proceeds under this Subsection, the City may, at its option:
(1) accept the equipment, (2) require the ROW user, at its own expense,
to remove it, or (3) require the ROW user to post a bond in an amount
sufficient to reimburse the City for reasonable anticipated costs
to be incurred to remove the facilities, except as otherwise provided
herein.
b.
Nuisance. Facilities abandoned or otherwise left unused in violation
of this Code are deemed to be a nuisance. The City may exercise any
remedies or rights it has at law or in equity, including, but not
limited to: (a) abating the nuisance, (b) taking possession and ownership
of the facility and restoring it to a usable function, or (c) requiring
the removal of the facility by the ROW user.
E.
Public Inspection Of Records. Certain information required to be filed with the City pursuant to this Code is subject to inspection and copying by the public pursuant to the provisions of the Missouri Open Records Act, Section 610.010, et seq., RSMo. Notwithstanding any ordinance or provision to the contrary, the City may disclose any proposed or existing facilities locations of a ROW user as deemed in the public interest and as may be established by City policy establishing requirements for notification and/or joint installation of facilities.
F.
Indemnification. Any person performing excavation or a ROW user as
a condition of use of the rights-of-way shall at its sole cost and
expense fully indemnify, protect, defend (with counsel acceptable
to the City), and hold harmless the City, its municipal officials,
officers, employees, and agents, from and against any and all claims,
demands, suits, proceedings, and actions, liability, and judgment
by other persons for damages, losses, costs, and expenses, including
attorney fees, arising, directly or indirectly, in whole or in part,
from the action or inaction of the person performing excavation or
ROW user, its agents, representatives, employees, contractors, subcontractors,
or any other person for whose acts the person performing excavation
or ROW user may be liable, in constructing, operating, maintaining,
repairing, restoring, or removing facilities or other structures,
or use of the rights-of-way or the activities performed, or failed
to be performed, by the person performing excavation or ROW user under
this Code or applicable law, or otherwise, except to the extent arising
from or caused by the sole or gross negligence or willful misconduct
of the City, its elected officials, officers, employees, agents, or
contractors. Nothing herein shall be deemed to prevent the City, or
any agent from participating in the defense of any litigation by their
own counsel at their own expense. Such participation shall not under
any circumstances relieve the person from the duty to defend against
liability or its duty to pay any judgment entered against the City,
or its agents. This indemnification shall survive the expiration or
termination of any ROW use agreement, license, or other authorization.
Provided, however, that in accordance with Section 67.5121(2),
RSMo., a ROW user solely to the extent a ROW user is operating "Small
Wireless Facility," as defined in the Uniform Small Wireless Facility
Deployment Act, within the ROW shall only indemnify and hold the City,
its officers and employees, harmless against any damage or personal
injury caused by the negligence of the ROW user, its employees, agents,
or contractors. This exception shall only apply to the ROW user's
"Small Wireless Facilities" and shall not otherwise alter the obligations
of a ROW user to provide indemnification to the City for any other
activities or operations.
G.
Compliance With Laws. Each ROW user shall comply with all applicable
Federal, State, and local laws, ordinances, regulations, and policies,
including, but not limited to, all laws, ordinances, regulations,
and policies relating to construction and use of public property heretofore
and hereafter adopted or established.
H.
Enforcement — Attorneys' Fees. The City shall be entitled
to enforce any provision of this Code through all remedies lawfully
available, and any person determined to have violated the terms of
this Code shall further be liable to pay the City's costs and
attorneys' fees in enforcing such Code provisions. Additionally,
any user of City services, rights-of-way, or other City facilities
or property, shall, as a condition of such use or continued use, to
the full extent permissible by law, be liable to pay the City's
costs and attorneys' fees incurred in enforcing any lawful requirement
applicable to such use, whether arising in contract, statute, ordinance,
or other enforceable duty as to such use.
I.
Relationship Of The Parties. Under no circumstances shall any agreement
or franchise authorized by this Code or use of the ROW by a ROW user
be construed to create any relationship of agency, partnership, joint
venture, or employment between the parties.
J.
ABANDONED
ACCESS FACILITIES
AFFILIATE
AGREEMENT or ROW USE AGREEMENT
ANTENNA
APPLICANT
BASIC CABLE SERVICE
CABLE ACT
CABLE SERVICES
CABLE INTERNET SERVICES
CABLE SYSTEM
1.
2.
3.
4.
5.
CAPITAL COSTS
CHANNEL
CITY or GRANTOR
CITY ENGINEER
CODE
COMMUNICATIONS SERVICE
COMPLAINT
CONVERTER
DIRECT INCREMENTAL COSTS
DROP
EXCAVATE
EXCAVATION PERMIT
EXCESS CAPACITY
FACILITIES
FACILITIES MAINTENANCE or MAINTENANCE
FACILITIES MAINTENANCE PERMIT
FRANCHISE
1.
2.
FRANCHISE FEE
1.
2.
3.
4.
5.
GOVERNING BODIES
GRANTEE
GROSS RECEIPTS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
GROSS REVENUES
1.
2.
3.
INSTITUTIONAL NETWORK or I-NET
INSTITUTIONAL NETWORK SERVICES
LICENSE
LICENSEE
LINEAR FOOT
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
OPEN VIDEO SERVICES
PERMIT
PERSON
PROVIDER
PUBLIC BUILDING
RENEWAL
REPORTS
RESELLER SERVICE PROVIDER
RIGHTS-OF-WAY or ROW
ROW USER
SERVICE INTERRUPTION
STANDARD INSTALLATION
SUBSCRIBER
SYSTEM
TELECOMMUNICATIONS ACT
TRAINED REPRESENTATIVE
USE FEE
Defined Terms. For purposes of this Code, the following terms, phrases, words,
and their derivatives shall have the meanings set forth in this Section,
unless the context clearly indicates that another meaning is intended.
Words used in the present tense include the future tense, words in
the single number include the plural number, and words in the plural
number include the singular. The words "shall" and "will" are mandatory, and "may" is permissive.
Words not defined shall be given their common and ordinary meaning.
Any equipment, materials, apparatuses, devices, or facilities
that are: 1) declared abandoned by the owner of such equipment or
facilities, 2) no longer in active use and the owner of such equipment
or facilities fails to respond within thirty (30) days to a written
notice sent by the City, or 3) as otherwise may be defined by applicable
law.
Means:
Each person, directly or indirectly, controlling, controlled
by, or under common control with the ROW user; provided that affiliate
shall in no event mean any limited partner or shareholder holding
an interest of less than fifteen percent (15%) of such ROW user, or
any creditor of such ROW user solely by virtue of its status as a
creditor and which is not otherwise an affiliate by reason of owning
a controlling interest in, being owned by, or being under common ownership,
common management, or common control with such ROW user.
The document granting consent by the City to use the City's
rights-of-way for the purpose of providing communication services
or for such other use for which a franchise or license is not applicable
and obtained as provided for herein.
Any device that transmits and/or receives radio waves for
voice, data, or video communications purposes, including, but not
limited to, television, AM/FM radio, microwave, cellular telephone,
communications service, or otherwise. A combination of panels, boxes,
or other antenna physically connected and designed in conjunction
to receive signals at one (1) location in the system shall be considered
one (1) antenna.
Any person applying for an agreement, franchise, license,
any permit, or other authorization to install, maintain, operate,
repair, or otherwise physically access facilities in the rights-of-way.
Any cable service tier that includes the lawful retransmission
of local television broadcast signals and any public, educational
and governmental access programming required by this Chapter to be
carried on the basic tier. Basic cable service as defined herein shall
be consistent with 47 U.S.C. Section 543(b)(7) (1997).
The Cable Communications Policy Act of 1984, Pub. L. No.
98-549, (codified at 47 U.S.C. Sections 521 — 611 (1982 and
Supp. V. 1987) as amended by the Cable Television Consumer Protection
and Competition Act of 1992, Pub. L. No.102-385, and the Telecommunications
Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time,
be amended.
Means:
The offering of direct access by a cable licensee to the
international computer network of both Federal and non-Federal interoperable
packet switched data networks to customers for a fee. For purposes
of an agreement, "cable internet service" shall mean
the direct access to the internet provided to customers over the cable
system and shall include the provision of incidental services or revenues
that are required by law to be treated under the same regulation as
such direct access service. Except as may be otherwise required by
applicable law or a binding provision of a franchise issued by the
City prior to the effective date of this Code, a provider receiving
revenue from cable internet service shall include such revenue in
the calculation of gross receipts from communications services and
shall be required to have a communications agreement with the City
governing the use of the rights-of-way for such purposes. Except as
may lawfully be required by the City or otherwise dictated by applicable
law, all agreements or franchises granted hereinafter shall authorize
use of the rights-of-way for cable internet service only pursuant
to a communications use agreement. All prior payments to the City
attributable to such cable internet service under a cable franchise
shall be irrefutably deemed to be lawful compensation for the past
use prospectively paid under any new communications agreement, irrespective
of any additional rates or terms required for any future use under
any new communications agreement.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the franchise
area, but such term does not include:
A facility that serves only to retransmit the television signals
of one (1) or more television broadcast stations;
A facility that serves subscribers without using any public
rights-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of 47 U.S.C. Sections 201 — 226,
except that such facility shall be considered a cable system (other
than for purposes of 47 U.S.C. Section 541(c)) to the extent such
facility is used in the transmission of video programming directly
to subscribers, unless the extent of such use is solely to provide
interactive on demand services;
An open video system that complies with Section 653 of the Cable
Act; or
Any facility of any electric utility used solely for operating
its electric utility system.
Costs associated with the purchase of assets, products or
other resources that will provide service for more than one (1) year
but shall not have any meaning inconsistent with generally accepted
accounting principles.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of carrying one (1)
industry standard video signal, in either analog or digital form.
At the time of the passage of this Chapter, analog standard channel
is defined as 6 MHz.
The City of Green Park, Missouri.
The City Engineer, Director of Public Works, or other designated
City Official.
This "Rights-of-Way Management and Cable Services Code" and
all provisions therein established by this Chapter.
The transmission via facilities, in whole or in part, of
any writings, signs, signals, pictures, sounds or other forms of intelligence
through wire, wireless or other means including, but not limited to,
any "telecommunications service", "enhanced service", "information
service" or "internet service" and "cable internet service" as such
terms are now, or may in the future be, defined under Federal law,
and including all instrumentalities, facilities, conduit, apparatus
("communications facilities") and services (among other things, the
receipt, forwarding and delivery of telecommunications) incidental
to or designed to directly or indirectly facilitate or accept such
transmission. This term does not include "cable service", but these
services shall be subject to separate cable franchising requirements
and application.
Any oral, written or electronic inquiry, allegation or assertion
made by a person regarding cable service or cable system operations.
An electronic device that converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber and, through the use of an appropriate channel selector,
permits a cable subscriber to view all authorized cable subscriber
signals delivered at designated converter dial locations. Converters
include all devices furnished to the subscriber and owned by the cable
provider.
The costs actually incurred by a cable provider in meeting
an obligation under its franchise which the provider would not otherwise
have incurred in order to either operate and conduct the business
of its cable system or meet another obligation of the franchise.
The cable or cables that connect the ground block on the
cable subscriber's property to the nearest feasible point on the cable
system in order to receive cable service.
Any act by which earth, asphalt, concrete, sand, gravel,
rock, or any other material in or on the ground is cut into, dug,
uncovered, removed, or otherwise displaced, by means of any tools,
equipment, or explosives, except as excluded by applicable law.
A permit authorizing excavation for the construction or installation
of facilities in the City's rights-of-way.
The remaining volume or capacity in any existing or future
duct, conduit, manhole, handhold, or other facility, including dark
fiber, in the rights-of-way that is used, or authorized by the ROW
user to be used, by others.
Any equipment, installation, or structure located in the
rights-of-way, including without limitation, cables, wires, lines,
poles, towers, antenna, conduit facilities, vaults, pedestals, transmitters,
meters, fiber, foundations, and any other equipment, infrastructure,
structures, or obstruction. Facilities shall not include lawful vehicular
parking or use, or pedestrian use.
The construction, installation, repair, upgrade, or other
physical access to the facility in the rights-of-way that does not
involve excavation.
A permit issued by the City for the ROW user to provide maintenance
to its facilities or otherwise perform work in the rights-of-way that
does not involve excavation but requires physical access to the facilities
in the rights-of-way.
The rights and obligations extended by the City to a person
to own, lease, construct, maintain or operate a cable system in the
rights-of-way within the franchise area for the purpose of providing
cable services. Any such authorization, in whatever form granted,
shall not mean or include:
Any other permit or authorization required for the privilege
of transacting and carrying on a business within the City required
by the ordinances and laws of the City, including the provision of
communications services;
Any permit, agreement or authorization required in connection
with operations in the rights-of-way including, without limitation,
permits and agreements for placing devices on or in poles, conduits,
or other structures, whether owned by the City or a private entity,
or for excavating or performing other work in or along the rights-of-way.
Any tax, fee or assessment of any kind imposed by the City or other governmental entity on a cable service provider or its cable subscribers, or both, solely because of their status and activities as such, pursuant to Section 610.030 of this Code. The term "franchise fee" does not include:
Any tax, fee or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and cable
operators or their cable services but not including a tax, fee or
assessment that is unduly discriminatory against cable service providers
or cable subscribers);
Capital costs that are required by a cable franchise to be incurred
by a grantee for public, educational or governmental ("PEG") access
facilities;
Requirements or charges incidental to the award or enforcement
of a cable franchise, including payments for bonds, security funds,
letters of credit, insurance, indemnification, penalties, or liquidated
damages;
Any permit fee or other fee imposed under any valid right-of-way
ordinance; or
Any fee imposed under Title 17 of the United States Code.
The legislative body of the City.
A person who is granted a cable franchise and that person's
agents, employees, lawful successors, transferees or assignees.
All revenues received directly or indirectly by a licensee
or its affiliates for communications services originating, terminating
or otherwise rendered within the corporate limits of the City and
all revenue derived from the use of the communications services facilities.
Except to the extent as may be prohibited by law, such "gross receipts"
shall specifically include, but shall not be limited to, all revenue
of the licensee derived from the following:
Recurring local exchange service revenues for business and residence
which include basic telephone exchange service, touch tone, custom
calling services and measured local calls;
Recurring local exchange service revenues for public, semi-public
and private coin;
Local directory assistance (411);
Line status verification/busy interrupt;
Local operator assistance;
Information delivery service;
Cellular and other wireless communication services revenue;
provided that such revenues derive from a system having antennae or
other parts of the mobile system physically located within the rights-of-way;
Non-recurring local exchange service revenue which shall include
customer service for installation of lines, reconnection of service
and charge for duplicate telephone bills;
Revenue received by the licensee from reseller service providers
(except for revenues from reseller service providers that have a separate
enforceable agreement with the City providing for payment of gross
receipts of that reseller service provider);
Internet access charges or services and including all high-speed
and traditional subscriber line charges or services (and including
cable internet service, unless such service revenues are validly required
to be included and are collected as gross revenues in a cable agreement
between licensee and the City);
Revenue from rent, physical use, collocation, or sale of the
facilities, network elements, or a portion thereof for any purpose;
Late charges or interest received on gross receipts;
Any portion of the use fees collected by licensee from any person;
All other applicable revenues not listed herein.
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"Gross receipts" shall not include uncollectable
debt, any Federal, State or local taxes separately stated on a customer's
bill. "Gross receipts" shall not include revenues
from affiliates where the affiliates have a separate enforceable agreement
with the City providing for payment of such affiliate gross receipts
or where the affiliate does not utilize, transmit communications through,
or connect to any part of the facilities. In the event a licensee
receives revenues for communications services or other activities
within and without the City of which the specific portion attributed
to operations in the City cannot be directly determined ("unallocated
revenues"), "gross receipts", with respect to such
revenues, shall mean the portion thereof derived by multiplying such
revenues by a fraction, the numerator of which is the gross receipts
from the City and the denominator of which is the total revenues of
licensee attributable from the area generating such unallocated revenues.
All revenue from or relating to or connected with communication services
deriving from any billing address within the City shall be presumed
to be gross receipts of licensee, unless demonstrated in writing to
the contrary as to each such revenue.
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Any revenue actually received by a grantee, or by any other
entity that is a cable operator on a grantee's cable system, including
the grantee's affiliates, from the operation of the grantee's cable
system to provide cable services. By way of illustration and not limitation,
this definition would include revenue derived from pay cable fees,
installation and reconnection fees, leased channel access fees; converter
rentals; franchise fees collected from subscribers; revenue from cable
internet service (if it is not required to be included in the gross
receipts of a separate binding agreement with the City as prescribed
in this Code); revenue from home shopping to the extent conducted
through a cable service; all cable service lease payments from the
cable system; payments or other consideration received by the grantee
from programmers for carriage of programming on the cable system and
accounted for as revenue under generally accepted accounting principles
("GAAP"); advertising revenues; revenues from data transmissions to
the extent these transmissions are considered cable services under
Federal law; payments or other consideration received by the grantee
for the use of the cable system to provide cable service and accounted
for as revenue under GAAP. Gross revenues shall include revenue received
by any entity other than the grantee where necessary to prevent evasion
or avoidance of the obligations under this Code or a franchise to
pay the applicable cable franchise fees. Revenues which are not directly
attributable to specific cable subscribers, including, but not limited
to, leased access fees, advertising revenues, and home shopping commissions,
shall be allocated among the franchising jurisdictions served by the
grantee's cable system on a per subscriber or other equitable basis
measured in a consistent manner from period to period. Gross revenues
shall not include:
To the extent consistent with GAAP, bad debt; provided however,
that all or part of any such bad debt that is written off but subsequently
collected shall be included in gross revenues in the period collected;
Amounts collected from cable subscribers for public, educational
and governmental access, provided however, this exclusion does not
limit a grantee's ability to pass through franchise-related costs
to the extent allowed by applicable law; or
Any taxes on cable services furnished by grantee which are imposed
directly upon any subscriber or user by the State, City or other governmental
unit and which are collected by grantee on behalf of said governmental
unit.
A communication network which is constructed or operated
by grantee and which is generally available only to cable subscribers
who are not residential subscribers. The I-Net shall consist of capacity,
fibers or both, from both within the primary cable network and/or
separately constructed networks that may be dedicated to governmental,
educational and other publicly funded users for two-way, broadband
communications. The I-Net includes all equipment and maintenance of
equipment required to make the capacity available including, but not
limited to, fiber and coaxial cable, cable modems, switching, routing,
transmitting and receiving necessary for the use of the network as
set out in the individual cable franchise.
The provision of an I-Net by a cable system operator to governmental,
educational and other non-profit, publicly funded users, as determined
by the City, pursuant to the terms of its franchise for non-commercial
applications including, but not limited to, two-way dedicated voice,
video, data and telephony channels connecting and interconnecting
user facilities.
The rights and obligations extended by the City to a person
to use and occupy the rights- of-way for the purpose of installing
temporary facilities in the rights-of-way or incidental uses such
as ingress and egress facilities, lateral utility lines, mailboxes,
or driveway aprons.
The party subject to a cable franchise or communications
rights-of-way agreement, or its successor, assigns, or transferee.
The length in feet of cable, wire, fiber, conduit or other
linear facilities. Facilities that are physically connected, wrapped
or lashed as a single cable, conduit or bundle of cables or conduit
shall be considered a single facility for purposes of calculating
each linear foot, provided that each conduit or bundle of conduit
up to and including four (4) inches in exterior diameter shall constitute
a separate facility for calculating linear feet. Conduit having fiber
optic or other cable or wire installed within it shall not be considered
separate facilities but shall be considered part of the single "conduit"
or bundle for purposes of calculating linear feet. Each provider shall
be subject to a separate linear foot charge for facilities used by
provider and subject to this Code.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, normal business hours must
include some evening hours, at least one (1) night per week, and some
weekend hours.
Those cable services or conditions that are within the control
of a cable system franchise grantee. Those conditions which are ordinarily
within the control of grantee 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 cable system. Those
conditions that are not within the control of grantee include, but
are not limited to, natural disasters; civil disturbances; power outages;
telephone network outages; vandalism; public works projects for which
no advanced notice is given; and severe or unusual weather conditions.
Any video programming services provided to any person by
a licensee certified by the FCC to operate an open video system pursuant
to Section 47 U.S.C. 573, as may be amended, regardless of the facilities
used.
An excavation permit, facilities maintenance permit, or other
permit authorizing work in the ROW.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
A licensee or grantee or any person required to have a communications
service agreement or cable service franchise.
Any building owned or for the greater part occupied by the
City or other governmental unit.
A new communications service agreement or cable service franchise
granted to an existing provider.
Any and all non-trade secret documents and information required
to be completed and/or kept or filed by a grantee or licensee on order
of the Federal Communications Commission, State or City. In accordance
with applicable law, the City shall maintain such information as confidential
to the extent that the provider identifies specific information as
such.
A person providing communications service or cable service
within the City that does not have ownership, possessory interest,
or control of identifiable facilities in the rights-of-way, but instead
uses the rights-of-way by interconnecting with or using the network
elements of another ROW user utilizing the rights-of-way, and/or by
using excess capacity or bandwidth from a facility-based ROW user
with no right to physically access the facilities or ROW.
The surface and space on, above, and below every municipal
street, alley, road, highway, lane, or City rights-of-way in which
the City has an ownership interest or right of management, and including
such adjacent areas within such public ways within the City control,
except as may be limited herein or by applicable law., "Rights-of-way"
shall not include public property owned or leased by the City and
not intended for rights-of-way use including, but not limited to,
City Hall property, parks, or public works facilities.
Such persons and entities, whether a public service commission
registered utility or otherwise, owning, controlling, leasing, maintaining,
using, or installing facilities in the rights-of-way of the City,
not otherwise expressly exempted. A ROW user shall not include a reseller
service provider or, to the extent permitted by applicable law, the
City.
The loss of picture or sound on one (1) or more channels
on the cable system.
Any service installation that can be completed using a drop
of one hundred twenty-five (125) feet or less.
Any person, who or which lawfully elects to subscribe for
any purpose to cable service provided by a grantee by means of, or
in connection with, the cable system, and whose premises or facilities
are physically wired and lawfully activated to receive cable service
from grantee's cable system, including persons who receive cable service
without charge according to the terms of the Code or franchise.
The cables, wires, lines, towers, wave guides, optic fiber,
antennae, and any associated converters, equipment, or other facilities
designed and constructed for the purpose of producing, receiving,
amplifying or distributing communications to or from locations within
the City.
The Telecommunications Act of 1996 codified at Title 47 of
the Unites States Code.
Employees of a grantee who have the authority and capability
while speaking with a cable subscriber to, among other things, answer
billing questions, adjust bills, and schedule service and installation
calls.
The fee imposed by the City on ROW user for use of the rights-of-way for communications services pursuant to Section 610.020 of this Code.
[1]
Editor's Note: Ord. No. 780 also changed the title of this
Chapter from "Cable Communications Regulatory Code" to "Rights-Of-Way
Management And Cable Services Code."
[Ord. No. 315 §§1 —
2, 3-19-2001; Ord. No.
780, 3-18-2019]
A.
Unlawful To Operate Without An Agreement. To the extent not preempted
by applicable law, it shall be unlawful for any person to construct,
operate, own, lease, use, or maintain facilities in the rights-of-way
in the City without a valid, unexpired ROW use agreement, license,
or franchise with the City as provided herein. Unless otherwise provided
hereinafter by City ordinance, a reseller service provider shall not
be required to obtain an agreement.
1.
Franchise. A Franchise shall be obtained in conformance with
all applicable franchise procedures for any ROW user seeking to use
the rights-of-way for purposes of providing or distribution of electricity,
gas, water, steam, lighting, or sewer service in the City.
2.
ROW Use Agreement. A ROW use agreement shall be required for
all other ROW users, except as provided herein or otherwise required
by law. Such agreement shall conform to all applicable laws and requirements
but shall not be subject to procedures applicable to franchises and
the City may, if appropriate, approve form agreements that may be
executed by the City Administrator in substantially the form approved.
3.
License For Incidental Uses. Licenses for incidental uses of
the rights-of-way, which include installation of temporary structures
or minor incidental uses in the rights-of-way, such as mailboxes,
driveway aprons, ingress or egress facilities, and similar incidental
uses, that utilize a small area of the rights-of-way, may be permitted
without a franchise or ROW use agreement pursuant to a license issued
by the City Engineer. The City Engineer may establish such application,
requirements, and conditions applicable to such uses consistent with
the purposes of this Code or as otherwise established by law. The
applicant shall be required to pay an application fee as established
by the City Engineer and in accordance with applicable law. Any person
granted a license hereunder shall be subject to the applicable requirements
of this Code. Unless otherwise stated in the license, a license shall
be for an indefinite term and shall be revocable at any time on written
notice in the public interest by the City.
B.
Agreements Non-Exclusive. The authority granted by the City in any
agreement shall be for non-exclusive use of the rights-of-way. Such
grant does not in any way limit the continuing authority of the City
through the proper exercise of its statutory powers to adopt and enforce
ordinances necessary to provide for the health, safety, and welfare
of the public. The City specifically reserves the right to grant,
at any time, such additional agreements or other rights to use the
rights-of-way for any purpose and to any other person, including itself,
as it deems appropriate, subject to all applicable law.
C.
Nature Of Rights Granted By Any Agreement. The granting of any agreement
or other authorization shall not be deemed to create any property
interest of any kind in favor of the ROW user, nor shall it create
any relationship of agency, partnership, joint venture, or employment
between the parties, and shall give only the right to occupy rights-of-way
for the purposes and for the period stated in this Code and as may
be further limited by such authorization. No agreement or other authorization
shall be deemed to grant the right to use facilities owned or controlled
by the City or a third party, and no such use shall occur without
the express written consent of such party (on file with the City)
and subject to other applicable requirements, nor shall any agreement
or other authorization excuse such person from first obtaining a pole
attachment agreement or other express consent for such right or use
before locating on the facilities controlled or owned by the City
or a third party. All agreements and other authorizations shall be
deemed to incorporate the provisions of this Code, except as may be
expressly stated in such authorization.
D.
Application And Application Fee Required. Any person seeking to use
the rights-of-way or seeking renewal of an existing agreement or franchise,
shall submit a completed application on such form as approved by the
City which shall include information necessary to determine compliance
with this Code. The City Engineer shall be authorized to develop applications
and require such information and documentation necessary to determine
compliance with this Code. Such application shall be accompanied by
a five hundred dollars ($500.00) application deposit for the City's
costs in review, documentation, and approval of such agreement unless
otherwise established by the City, to recover any actual costs anticipated
and incurred by the City in reviewing, documenting, or approving such
agreement, provided no costs shall be included if such inclusion is
prohibited by applicable law as to that person. If the actual costs
are thereafter determined to be less than the application deposit
fee, such amount shall be returned to the person, after written request
therefrom; if the actual costs exceed the application deposit fee,
such person shall pay such additional amount prior to issuance of
any final City approval after written notice from the City. The City
may provide for the waiver of these application fees for use of the
rights-of-way by other governmental entities where such waiver is
deemed by the City to be lawful and in the public interest. On request
of the City, the applicant shall provide such additional information
that is deemed necessary or appropriate to the City in reviewing the
application and proposed use of the rights-of-way. The information
provided by the ROW user shall be certified as true and correct and
the ROW user shall be responsible to certify to the City any material
changes to the information provided in such completed application
during the term of any agreement or franchise.
E.
Standard For Approval Or Renewal Of Agreements. All ROW users shall
be required to obtain and maintain any necessary and lawful permit,
license, certification, grant, registration, or any other authorization
required by any appropriate governmental entity, including, but not
limited to, the City, the FCC, or the Missouri Public Service Commission.
In reviewing an application, the City may consider prior conduct of
the ROW user in performance of its obligations or compliance with
the City's ordinances in the past, or the existence of any outstanding
violations or deficiencies. The City may deny or condition any agreement
or franchise where the proposed use would interfere with the public
use of the rights-of-way or otherwise conflict with the legitimate
public interests of the City or as otherwise provided by law. The
City may establish standard agreements or franchise setting forth
the minimum requirements for all ROW users. Applications for agreements
or franchises may be approved, denied, or approved with conditions
consistent with applicable requirements as may be necessary to fulfill
the requirements and objectives of this Code.
F.
Approval Process. After submission by the applicant of a duly executed
and completed application, application deposit fee, and executed agreement
or franchise as may be provided by the City Engineer or as modified
by the City Engineer in review of the specific circumstances of the
application, all in conformity with the requirements of this Code
and all applicable laws, the City Engineer shall submit such agreement
or franchise to the governing body for approval. All agreements or
franchises shall be approved by ordinance or resolution of the governing
body on a non-discriminatory basis provided that the applicant is
in compliance with all applicable requirements. Upon determining compliance
with this Code, the governing body shall authorize execution of the
agreement or franchise (or a modified agreement or franchise otherwise
acceptable to the City consistent with the purposes of this Code)
and such agreement or franchise shall constitute consent to use the
rights-of-way; provided that nothing herein shall preclude the rejection
or modification of any executed agreement or franchise submitted to
the City to the extent such applicable law does not prohibit such
rejection or modification, including where necessary to reasonably
and in a uniform or non-discriminatory manner reflect the distinct
engineering, construction, operation, maintenance, public work, or
safety requirements applicable to the person or use.
G.
Cable Service And Open Video Systems (OVS) — Separate Franchise
Or Agreement Required. A ROW use agreement shall not provide the ROW
user the right to provide cable service as a cable operator (as defined
by 47 U.S.C. Section 522(5)) within the City. Upon a ROW user's
request for a franchise to provide cable service as a cable operator
(as defined by 47 U.S.C. Section 522(5)) within the City, the City
shall timely negotiate such cable television services franchise in
good faith. A ROW use agreement shall also not permit a ROW user to
operate an open video system, except where otherwise expressly provided
in the agreement or by separate agreement, and the ROW user remits
the maximum fees permitted by 47 U.S.C. Section 573(c)(2)(B) and where
the ROW user otherwise complies with FCC regulations promulgated pursuant
to 47 U.S.C. Section 573. Absent such applicable agreement from the
City, the ROW user shall be prohibited from offering OVS service and
any such service shall be considered a breach of the agreement. Unless
otherwise specified, any such new agreement or amendment to an agreement
shall obligate the ROW user to pay a use fee of five percent (5%)
on all gross revenues directly or indirectly attributable to the provision
of OVS service within the City. The City may, at its option, to the
extent not prohibited by applicable law, negotiate with the ROW user
to exchange all or a part of the use fees for capacity or facilities
used for City or other public purposes. Any such exchange shall be
negotiated based on the ROW user's cost of providing capacity
or facilities to the City and in accordance with applicable law and
shall be credited towards the calculation of applicable use fees.
H.
Lease Required For Public Lands. Unless otherwise provided, use or
installation of any facilities in, on, or over non-rights-of-way public
property of the City shall be permitted only if a lease agreement
or other separate written approval has been negotiated and approved
by the City with such reasonable terms as the City may require.
I.
Condition Precedent To Permit. Unless otherwise required by applicable
law, no permit may be issued unless or until such person has a valid
franchise, license, ROW use agreement, or other authorization with
the City.
J.
Transferability. Except as provided in this Code or as otherwise
required by law, no franchise, ROW use agreement, license, or permit
may be transferred or assigned without the written application to
and consent of the City based on the requirements and policies of
this Code. The City shall not unreasonably withhold its consent as
provided herein, but any costs incurred shall be paid by the ROW user
to the extent not prohibited by applicable law.
K.
Use Of Rights-Of-Way — Police Powers — Use Subordinate.
The ROW user shall construct and maintain its facilities in accordance
with all applicable Federal, State, and local laws, including all
permit requirements, and fee payments, and all other City Codes and
ordinances in effect as of the date of an agreement, franchise, or
other authorization or hereinafter adopted to the extent not in contravention
of State or Federal law. The grant of an agreement, franchise, or
other authorization does not in any way impact the continuing authority
of the City through the proper exercise of its statutory powers to
adopt and enforce ordinances necessary to provide for the health,
safety, and welfare of the public. The City makes no express or implied
representation or warranty regarding its rights to authorize the installation
or construction of facilities on any particular segment of rights-of-way
and shall not be liable for any damage therefrom. The burden and responsibility
for making all such determinations in advance of construction or installation
shall be entirely upon the ROW user. The ROW user shall be solely
liable for any damages to facilities or other property due to excavation,
facilities maintenance, or other ROW work performed prior to obtaining
the location of all facilities within the ROW user's work area.
The ROW user shall not make or attempt to make repairs, relocation,
or replacement of damaged or disturbed facilities without the approval
of the owner of the facilities. The use of the rights-of-way shall
in all matters be subordinate to the City's use and rights therein.
L.
Use Fees. Unless otherwise established by the governing body, ROW
user shall pay to the City as monthly compensation for the use of
the rights-of-way a use fee equal to a monthly use fee not less than:
one thousand dollars ($1,000.00)/month for the first mile of linear
facilities, or part thereof, plus sixteen cents ($0.16) per linear
foot/month thereafter up to a monthly charge under this Subsection
of four thousand dollars ($4,000.00); provided, that all ROW users
shall be entitled to a credit against the use fee due hereunder equal
to the payment(s) from such ROW user in accordance with Section 67.1846,
RSMo.; provided, however, such credit cannot exceed the amount due
under this Subsection and may not be carried forward or back to any
other time period and a credit shall not apply to any taxes paid under
protest or otherwise paid with qualification unless so required by
law.
M.
Bundled Services. To the extent ROW user markets "bundled" services,
including combinations of goods and services, the ROW user shall fairly
reflect to the City an appropriate and reasonable division of services
among the various services offered based on the actual value of each
separate service. Whether or not ROW user separates services on a
subscriber's bill, it will provide to the City notice of any
such allocation sufficient for City verification. Should ROW user
engage in billing practices that, in the determination of the City,
do not fairly reflect an appropriate allocation, the City will notify
ROW user, in writing, of its determination and may nullify such allocation
and require payment applicable to the full receipts.
N.
Timing Of Payment Of Use Fees. Unless otherwise agreed to in writing,
all use fees shall be due and payable on a monthly basis within sixty
(60) calendar days of the close of each month for which the payment
applies (the "due date"). A credit of the applicable gross receipts
tax for that same period may be taken against the linear foot payment
for that month.
O.
Interest On Late Payments And Under Payments. If any use fee, or
any portion thereof, is not postmarked or delivered on or before the
due date, interest thereon shall accrue from the due date until received,
at the rate of one and one-half percent (1.5%) per month, unless such
other maximum rate is established by law.
P.
Fee Statement. Each use fee payment shall be accompanied by a statement,
certified as true, showing the manner in which the use fee was calculated,
including the total number of feet of rights-of-way occupied by the
ROW user's facilities, the per foot linear foot rate applied,
any credit or adjustment taken (including setting forth the prior
month's gross revenue and describing what revenues or receipts
were included and excluded in the fee paid), and the payment of the
use fee made, and in such format as may be required by the City. If
any fee statement is determined to understate the fee owed, then such
additional amount owed shall be made with a corrected statement, including
interest on said amount as provided herein. No refund, credit or offset
shall be granted for any claimed payment or overstatement of the amount
due or certification of facilities reported, provided that a corrected
payment or reported may be filed within the time for the original
payment. Within ninety (90) calendar days following the end of the
calendar year, each ROW user shall submit a statement, certified as
true, setting forth its gross revenues, the amount of linear foot
of facilities, and describing what revenues or receipts (including
each type of services) were included and excluded in the fee calculations
for the calendar year, and describing any adjustments made in determining
the use fee.
Q.
No Accord And Satisfaction. No acceptance by the City of any use
fee shall be construed as an accord that the amount paid is in fact
the correct amount, nor shall acceptance of any use fee payment be
construed as a release of any claim of the City.
R.
Maintain Records. ROW user shall at all times maintain complete and
accurate books of account and records of the business, ownership,
and operations of the ROW user with respect to the system in a manner
that allows the City to determine whether the ROW user has properly
calculated its use fee in compliance with this Code. Should the City
reasonably determine that the records are not being maintained in
such manner, the ROW user shall correct the manner in which the books
and/or records are maintained so that the ROW user comes into compliance
with this Section. All financial books and records which are maintained
in accordance with FCC regulations and the regulations of any governmental
entity that regulates utilities in Missouri, and generally accepted
accounting principles shall be deemed to be acceptable under this
Section. Such books and records shall be maintained for a period of
at least three (3) years. The failure to provide information or maintain
records as required herein shall be grounds for forfeiture or revocation
of an agreement or franchise.
S.
Right Of Inspection. The City or its designated representatives shall
have the right to inspect, examine, or audit, during normal business
hours and upon seven (7) calendar days' notice, all documents,
records, or other information that pertains to the facilities within
the rights-of-way and/or ROW user's user fee obligations. In
addition to access to the records of ROW user for audits, upon request,
ROW user shall provide reasonable access to records necessary to verify
compliance with the terms of this Code. In addition to other relevant
information, the City reserves the right to request information showing
circuit account ID, billing account ID, City of origination, City
of termination within Greater St. Louis area, monthly recurring revenue,
non-recurring revenue, turn-up dates, Common Language Location Identifier
(CLLI) codes for all Greater St. Louis customers, names of CLEC's,
reseller's or IXC's leasing bandwidth, facilities mileage
figures necessary to substantiate ROW user's fee calculations.
T.
Payment Of Taxes — Use Fee Not A Tax. The use fees provided
for in this Section, and any compensation charged and paid for the
use of the ROW as provided in this Section, are separate from, in
addition to, and not in lieu of, any and all taxes, charges, assessments,
licenses, fees, and impositions otherwise applicable that are or may
be imposed by the City, State, Federal government. The use fee is
compensation for use of the rights-of-way and shall in no way be deemed
a tax of any kind. ROW user shall be fully responsible for the payment
of all applicable taxes.
U.
Use By Third-Parties And Reseller Service Provider Requirements.
1.
ROW User Authority; Obligations. A ROW user is authorized, subject
to other applicable requirements, to sell or transfer use of excess
capacity to reseller service providers or other entities, provided
that such entity either: (1) has no right to and does not physically
access the facilities while in the ROW, or (2) has a separate franchise,
ROW use agreement, or other written agreement or consent authorizing
the same with the City, to the extent not prohibited by applicable
law. In the event of such sale or transfer to a reseller service provider,
the ROW user shall notify the City of the same prior to such action
so that the City can review compliance regarding doing business in
the City. This notice shall not relieve the reseller service provider
from its own obligation to register, pay taxes, and obtain any necessary
authorization from the City.
2.
Registration Of Reseller Service Providers And Exempt Entities.
a.
Reseller Service Provider Registration. Prior to providing service
(including sale or transfer of product or service) within the City
or acquiring or using excess capacity through facilities in the City,
reseller service providers shall register with the City the intent
to do so and shall include: (1) identity of the reseller service provider
and certification of the applicable regulatory approval necessary
to undertake such service, (2) the name of the ROW user(s) owning
the facilities within the City through which the service shall be
transmitted; (3) name, address, telephone number, and email address
of an officer, agent, or employee responsible for the accuracy of
the registration, and contact information for a person to speak on
behalf of the reseller service provider, if different; and (4) such
other information as requested by the City Engineer. It shall be unlawful
for any reseller service provider to have its own facilities in the
rights-of-way, have the right to physically access the facilities
in the rights-of-way, or to transmit service for commercial purposes
through any facility owned by a person without a valid franchise,
ROW use agreement, or other City authorization for such facilities.
It shall be the duty of a reseller service provider to report any
changes to its registration information within thirty (30) days of
such change.
b.
Exempt Entity Registration. Prior to providing service within the City, transmitting communications through facilities in the City, or constructing in the rights-of-way, entities not required to obtain a franchise, license, or ROW use agreement due to superseding Federal or State law, shall nevertheless be required to register with the City by providing the City the information required by the rights-of-way application in Section 610.020. It shall be the duty of such exempt entity to report any changes to such registration information within thirty (30) days of such change.
3.
Reseller Service Provider Obligations. Any reseller service
provider that buys or leases excess capacity or other services for
resale from a ROW user, shall be subject to the terms and conditions
of this Code, including the requirement to first register with the
City and obtain any necessary permit, license, certification, grant,
registration, franchise agreement, or any other authorization required
by any appropriate governmental entity, including, but not limited
to, the City, PSC, or the FCC.
V.
Assignment Of Agreement. The ROW user shall not sell, transfer, lease,
assign, sublet or dispose of in whole or in part, either by forced
or voluntary sale, or by ordinary sale, consolidation or otherwise,
an agreement, franchise, or other authorization or any of the rights
or privileges granted by such authorization without the prior written
consent of the City; provided that such transfer may occur without
written consent of the City to a wholly owned parent or subsidiary,
or between wholly owned subsidiaries, upon thirty (30) days'
prior notice to the City. Such consent shall not be unreasonably withheld.
The City reserves the right to be reimbursed for its reasonable costs
relating to a transfer of ownership.
W.
Forfeiture Of Agreement And Privilege. In case of failure on the
part of the ROW user, including its successors and assigns, to comply
with any of the provisions of this Code or an agreement or franchise,
or if the ROW user, its successors and assigns, should do or cause
to be done any act or thing prohibited by or in violation of this
Code or the terms of the authorization for such use, or otherwise
loses authority to provide its service in the City, the ROW user,
its successors and assigns, shall forfeit all rights and privileges
permitted by this Code and any agreement or franchise, and all rights
hereunder shall cease, terminate, and become null and void, provided
that said forfeiture shall not take effect until the City shall carry
out the following proceedings: Before the City declares the forfeiture
or revocation of an agreement or franchise, it shall first serve a
written notice upon the ROW user setting forth in detail the neglect
or failure complained of, and the ROW user shall have thirty (30)
days thereafter, or such other reasonable period established by the
governing body, in which to cure the default by complying with the
conditions of an agreement or franchise and fully remedying any default
or violation. If at the end of such thirty-day period the City determines
that the conditions have not been complied with, and that the ROW
user did not reasonably and in the public interest require more than
thirty (30) days to cure the default, the City may take action by
an affirmative vote of the governing body present at the meeting and
voting to terminate the agreement or franchise, setting out the grounds
upon which said agreement or franchise is to be forfeited or revoked.
Nothing herein shall prevent the City from invoking any other remedy
or from declaring immediate forfeiture where the default is incapable
of being cured by the ROW user, including where such defaults or violations
have repeatedly occurred.
[Ord. No. 315 §§1 —
2, 3-19-2001]
A.
Cable Franchise Requirements.
1.
General findings regarding cable services. The City
finds that cable service has become an integral part of its citizens'
lives, and that evolving cable systems have the potential to play
an even more dramatic role in the future, providing great benefits
and advanced capabilities to residents of the City. At the same time,
the rapidly emerging role of cable systems as an integrated broadband
communications platform necessitates a finding that the local government
has a legitimate and vital role to play in regulating cable services
in a manner that ensures high quality customer service while at the
same time fostering competition to the extent permitted under law.
The Governing Body further finds that the public convenience, safety
and general welfare can best be served by establishing regulatory
powers that are vested in the City.
2.
Unlawful to operate without a franchise. It shall be unlawful for any person to construct, operate or maintain a cable system or to provide cable service or other competing multichannel video services in the City without a franchise, unless otherwise specifically authorized under applicable Federal or State law. Consistent with Section 610.050 any such person shall be subject to a fine of five hundred dollars ($500.00) per day. The payment of such fine notwithstanding, all such violators shall be subject to all other applicable provisions of this Code to the fullest extent allowed by law including, but not limited to, the payment of a franchise fee. This Section shall not apply to a grantee who has properly asserted its intent and is diligently pursuing renewal of the franchise pursuant to 47 USC Section 546.
3.
Franchise not exclusive.
a.
Any franchise granted pursuant to this Chapter shall be non-exclusive.
The grantor specifically reserves the right to grant, at any time,
such additional franchises for a cable television system or any component
thereof to any other person including itself, as it deems appropriate,
subject to this Code and applicable Federal and State law.
b.
The terms and conditions of any cable franchises granted or renewed
pursuant to this Chapter shall be, when taken as a whole, no less
burdensome or more beneficial than any other cable franchises granted
or renewed pursuant to this Chapter, when taking into consideration
the context in which the earlier terms were adopted. Provided however,
that nothing herein shall be construed as requiring the use of identical
terms or conditions, or limit the enforceability of conditions that
are freely negotiated.
c.
Nothing in this Subsection shall be deemed to create any cause of
action or claim of breach for any franchisee or third (3rd) party.
4.
Franchise territory. Every cable franchise shall
apply to the entire territorial area of the City, as it exists now
or may later be configured.
5.
Federal, State and City jurisdiction.
a.
This Chapter and Code shall be construed in a manner consistent with
all applicable Federal and State laws.
b.
In the event that the Federal or State Government discontinues pre-emption
in any area of cable communications over which it currently exercises
jurisdiction in such manner as to expand rather than limit municipal
regulatory authority, City may, if it so elects, adopt rules and regulations
in these areas to the extent permitted by law and the reasonable exercise
of the City's Police powers.
c.
The provisions of this Chapter and Code shall apply to all cable
franchises granted or renewed after or simultaneously with the effective
date of this Chapter. This Chapter and Code shall also apply to all
existing franchises, to the extent not inconsistent with the terms
of any such franchise or applicable law, and to the extent that it
does not impose additional material burdens on such grantee. A cable
franchise (including all of grantee's particular rights, powers, protections,
privileges, immunities and obligations associated therewith as the
same exist on the date hereof) shall constitute a legally binding
contract between the City and grantee and, as such, cannot be amended,
modified or changed by the grantor without the consent of grantee
in any manner whatsoever, whether by ordinance, rule, regulation or
otherwise, to impose on grantee more stringent or burdensome requirements
or conditions. In the event of any conflict between the terms and
conditions of a franchise and the provisions of this Chapter or Code
and other generally applicable regulatory ordinances of the City,
the specific terms of the franchise shall control; provided however,
that nothing herein contained shall preclude the City from the proper
exercise of its Police powers.
d.
In the event of a change in State or Federal law which by its terms
would require the City to amend this Chapter or Code, the parties
shall modify the existing franchise in a mutually agreed upon manner.
6.
Initial franchise applications. Any person desiring
an initial franchise for a cable system shall file an application
with the City. A non-refundable application fee as may be hereinafter
established by the City shall accompany the application, which shall
not be considered or credited against the collection of applicable
franchise fees.
7.
Consideration of initial applications.
a.
Upon receipt of any application for an initial franchise, the City
Administrator or other designated administrative official shall prepare
a report and make his or her recommendations respecting such application
to the Governing Body.
b.
A public hearing shall be held prior to any initial franchise grant
at a time and date approved by the Governing Body. Within thirty (30)
days after the close of the hearing, the Governing Body shall make
a decision based upon the evidence received at the hearing as to whether
or not the franchise(s) should be granted and, if granted, subject
to what conditions.
8.
Franchise renewal. Franchise renewals shall be in
accordance with applicable law including, but not necessarily limited
to, the Cable Communications Policy Act of 1984, as amended. The City
and a grantee, by mutual consent, may enter into renewal negotiations
at any time during the term of the franchise.
9.
Grant of additional franchise and competing service. Since competing or overlapping cable franchises may have an adverse
impact on the public rights-of-way, on the quality and availability
of services to the public and may adversely affect an existing provider's
ability to continue to provide the services it is presently providing
under a franchise, the City may issue a franchise in an area where
another grantee is operating only following a public hearing to consider
the potential impact which the grant of an additional franchise may
have on the community. In considering whether to grant one (1) or
more additional franchises, the City shall specifically consider,
and address in a written report, the following issues:
a.
The positive and/or negative impact of an additional franchise on
the community.
b.
The ability and willingness of the specific applicant in question
to provide cable services to the entire franchise area which is served
by the existing cable provider. The purpose of this Subsection is
to ensure that any competition which may occur among grantees will
be on terms which when taken as a whole do not give a competitive
advantage to one grantee over another.
c.
The amount of time it will take the applicant to complete construction
of the proposed cable system and activate cable service in the entire
franchise area; and whether the applicant can complete construction
and activation of its cable system in a timely manner.
d.
The financial capabilities of the applicant and its guaranteed commitment
to make the necessary investment to erect, maintain and operate the
proposed cable system for the duration of the franchise term. In order
to ensure that any prospective grantee does have the requisite current
financial capabilities, the City may request equity and debt financing
commitment letters, current financial statements, bonds, letters of
credit, or other documentation to demonstrate to the City's satisfaction
that the requisite funds to construct and operate the proposed cable
system are available.
e.
The quality and technical reliability of the proposed cable system,
based upon the applicant's plan of construction and the method of
distribution of signals, and the applicant's technical qualifications
to construct and operate such cable system.
f.
The experience of the applicant in the erection, maintenance and
operation of a cable system.
g.
The capacity of the rights-of-way to accommodate one (1) or more
additional cable systems and the potential disruption of those rights-of-way
and private property that may occur if one (1) or more additional
franchises are granted.
h.
The disruption of existing cable service and the potential that the
proposed franchise would adversely affect the residents of the City.
i.
The likelihood and ability of the applicant to continue to provide
competing cable service to subscribers within the entire franchise
area for the duration of the franchise.
j.
Such other information as the City may deem appropriate to be considered
prior to granting any competing or overlapping franchise.
10.
Permits for non-franchised entities. The City may issue a license to a person other than the grantee to permit that person to traverse any portion of a grantee's franchise area within the City in order to provide cable service outside but not within the City. Such license or easement, absent a grant of a franchise in accordance with this Chapter, shall not authorize nor permit said person to provide cable service of any type to any home or place of business within the City. Such license shall be granted pursuant to the requirements of Section 610.020 of this Code.
B.
Design, Services And Capabilities.
1.
Cable system design. Every grantee shall offer cable
service that meets the current and future cable-related needs of the
City. Such cable service shall, at a minimum, be comparable to cable
services offered by that grantee or its affiliates operating any headend
serving the City and surrounding municipalities in St. Louis County.
The franchise shall incorporate a description of the grantee's cable
system including the general design and capabilities of the cable
system to identify for the City how the cable system will meet the
current and future cable needs of the City.
2.
The cable system. Every cable system shall pass
by every single-family dwelling unit and multiple-family dwelling
unit within the franchise area in accordance with line extension policies
set forth in this Chapter. Service shall be provided to subscribers
in accordance with the schedules and line extension policies specified
in this Chapter unless otherwise specified in the franchise.
3.
Drops to public buildings.
a.
Every grantee shall provide installation of at least one (1) cable
drop and one (1) outlet, provide monthly basic cable service, without
charge, to public buildings specified by the City in the applicable
franchise where the drop does not exceed two hundred (200) feet.
All accredited K — 12 schools shall also receive one (1)
cable drop and one (1) outlet and basic cable service at no charge,
subject to the above two hundred (200) foot limit. The location of
such cable drops and outlets shall be determined in cooperation with
the management of the public building to which the connection is to
be made. Following the City's designation of additional public building(s)
to receive cable service, a grantee shall complete construction of
the drop and outlet within ninety (90) days if the City requests construction,
weather permitting and subject to payment of the direct incremental
costs of installation in excess of two hundred (200) feet. Drops and
outlets that are in addition to the one (1) free drop and outlet required
by this Section shall be provided by a grantee at the cost of grantee's
time and material. Alternatively, at an institution's request, the
institution may add outlets at its own expense, as long as such installation
meets the grantee's standards, which shall be made readily available
to any public entity upon request. Additional outlets and services
to public buildings are subject to the applicable commercial rate.
b.
All such cable service outlets shall not be utilized for commercial
purposes. The City shall take reasonable precautions to prevent any
use of a grantee's cable system in any inappropriate manner or that
may result in loss or damage to the cable system. Users of such outlets
shall hold the grantee harmless from any and all liability or claims
arising out of their use of such outlets, other than for those claims
arising out of improper installation or faulty equipment.
c.
In instances where the drop line from the feeder cable to the public
building, school or library exceeds two hundred (200) feet, the grantee
may charge for its direct incremental costs that are incurred in exceeding
this length.
4.
School and library cable modems. Unless otherwise
specified in the applicable franchise, upon activation and commercial
offering of two-way cable modem service within the franchise area,
every grantee shall provide upon written request a courtesy cable
modem and cable internet service without charge to every State accredited
K — 12 school and library in the franchise area.
5.
Use of grantee's facilities. Subject to any applicable
State or Federal regulations, the City shall have the right to install
and maintain, free of charge, upon the poles and within the underground
pipes and conduits of a grantee any wires and fixtures desired by
the City for public purposes. Provided however, that: (a) such use
by grantor does not unreasonably interfere with the current or future
use by grantee; (b) such use by grantor is restricted to non-commercial
public purposes; and (c) grantor takes reasonable precautions to prevent
any use of grantee's facilities in any manner that results in an inappropriate
use thereof, or any loss or damage to the cable system. For the purposes
of this Subsection, "public purposes" includes, but
is not limited to, the use of the structures and installations for
grantor fire, Police, traffic, utility, and/or signal systems, but
not for cable system purposes in competition with the grantee. The
grantee shall not deduct the value of such use of its facilities from
its franchise fee and/or other fees payable to grantor.
6.
Upgrade of system. Every grantee shall upgrade its
cable system (herein referred to as the "system upgrade"), if required,
as set forth in its respective franchise.
7.
Emergency alert capability. Every grantee shall
at all times provide the system capabilities to comply with the FCC's
Emergency Alert System rules and regulations. Provided, that at a
minimum these capabilities will remain in place even if the FCC at
some future dates eliminates the current regulations.
8.
Periodic review. The franchise shall include provisions
to provide for a "periodic review" between the City and a grantee
to evaluate changes in law, technology or service and reasonable procedures
for mutually agreed upon modifications to the franchise to incorporate
changes identified as desirable or necessary as a result of any such
periodic review.
9.
Closed captioning and descriptive audio service. Every grantee will make audio descriptive service and closed captioning
capabilities available to the extent required by State and Federal
law.
10.
Standby power. Within twelve (12) months of activation
of the system, the grantee shall provide standby power generating
capacity capable of providing at least twelve (12) hours of emergency
supply at the cable system headend. For nodes, two (2) hours with
emergency power supply. Every grantee shall maintain standby power
system supplies throughout the major trunk cable networks capable
of providing emergency power within the standard limits of commercially
available power supply units.
11.
Status monitoring. Every grantee shall provide an
automatic status monitoring system, or a functional equivalent, when
the cable system has been activated for interactive service provided
that such status monitoring is technically and economically feasible.
12.
HDTV/ATV conversion. Conversion to High Definition
Television/Advanced Television (HDTV/ATV) formats shall occur in accordance
with applicable law.
C.
Institutional Network And Public Educational And Governmental Access
Or "PEG Access".
1.
Institutional network access channels.
a.
Every grantee shall, to the extent required in its franchise and
subject to applicable law, provide or fund on an equal basis with
other cable providers whose franchises are granted or renewed after
the adoption of this Code an institutional network, that provides
two-way broadband voice, video and data capabilities for use by governmental,
educational and other publicly-funded or non-profit local community
service organizations identified by the City. Such institutional network
requirements shall at a minimum satisfy the community need for such
facilities as determined by the Governing Body for the period of the
applicable franchise.
b.
Every grantee shall also provide a channel or channels, bandwidth
capacity, service and funding for separate public, educational and
government access channels, as specified in their franchise. All such
PEG access channels shall be available to all subscribers as part
of their basic cable service. Given the on-going changes in the state
of technology as of the effective date of this Code, absent the express
written consent of the City, grantee shall transmit PEG access channels
in the format or technology utilized to transmit all of the channels
on the basic cable service tier. Oversight and administration of the
PEG access channels shall be set forth in the franchise.
2.
Proof of performance testing. To ensure high quality service on the institutional network and access channels, proof of performance testing throughout the system and on all channels will be made available to the City to the extent required in a franchise. Every grantee will monitor access channels throughout the cable system to determine the level of technical quality of access channels is in conformance with FCC rules and to ensure that the level of technical quality on such access channels is the same as on other channels within the cable system. In the event that a complaint is made by a programmer of any access channels, the grantee shall immediately investigate the complaint and determine whether the grantee is in compliance with the technical standards set forth in Section 610.030(D)(2) of this Chapter.
D.
Technical Standards And Customer Service Practices.
1.
General technical standards and customer service practices.
a.
This Chapter incorporates cable service technical standards and establishes
customer service practices that every grantee must satisfy.
b.
Every grantee shall maintain such equipment and keep such records
as required to comply with all customer service and technical standards
required by these regulations and other applicable laws. The grantee
shall at all times assist and cooperate with grantor in explaining,
interpreting and understanding such records or reports.
2.
Test and compliance procedure. Tests for a cable
system shall be performed periodically in a manner so as to conform
with FCC specifications. The tests may be witnessed by representatives
of the City and written test reports shall be made available to the
City upon request. If any test locations fail to meet the performance
standards, the grantee shall be required to indicate what corrective
measures have been taken and shall have the site retested.
3.
Cable system office hours and telephone availability.
a.
Every grantee shall maintain a conveniently located customer service
center, which shall include a place where subscribers may pay their
bills, pick up and return converter boxes and comparable items, and
receive information on the grantee and its services. Such service
center shall be open at least during normal business hours. Grantee
shall also maintain a publicly listed toll-free or local telephone
line that is available to subscribers twenty-four (24) hours a day,
seven (7) days a week.
b.
Every grantee shall have trained company representatives available
to respond to subscriber telephone inquiries during normal business
hours.
c.
After normal business hours, the telephone access line may be answered
by a service or an automated response system, including an answering
machine. Inquiries received after normal business hours must be responded
to by a trained representative on the next business day.
d.
Under normal operating conditions, telephone answer time by a trained
customer service representative or automated response unit, including
wait time, shall not exceed thirty (30) seconds when the connection
is made. If a call must be transferred, transfer time shall not exceed
thirty (30) seconds. Under normal operating conditions, these standards
shall be met no less than ninety percent (90%) of the time, measured
on a quarterly basis.
e.
Under normal operating conditions, a grantee shall establish an inbound
telephone system upon which subscribers shall not receive a busy signal
more than three percent (3%) of the time.
f.
A grantee will not be required to acquire equipment or perform surveys
to measure compliance with the telephone answering standards above
unless a historical record of complaints indicates a clear failure
to comply.
4.
Cable channels for commercial use, local commercial television
signals, and non-commercial educational television. A franchisee
shall designate channel capacity for commercial and non-commercial
use by persons unaffiliated with the franchisee as required by Federal
law, consistent with the principle of fairness and equal accessibility
to all persons and the City to the extent they have a legitimate use
for such capacity.
5.
Technical standards.
a.
Any cable system within the City shall meet or exceed the technical
standards set forth in 47 C.F.R. Section 76.601 et seq., and any other
applicable Federal technical standards, including any such reasonable
standards as hereafter may be amended or adopted by the Governing
Body in a manner consistent with Federal law.
b.
A franchisee shall use equipment generally used in high-quality,
reliable, modern systems of similar design including, but not limited
to, back-up power supplies at the fiber nodes and headends capable
of providing power to the system for a minimum of two (2) hours in
the event of an electrical outage, plus adequate portable generators
to cover longer outages. The obligation to provide back-up power supplies
requires the franchisee to install equipment that will: (1) cut in
automatically on failure of commercial utility AC power, (2) revert
automatically to commercial power when it is restored, and (3) prevent
the standby power source from powering a "dead" utility line. In addition,
the design and construction of a system shall include modulators,
antennae, amplifiers, and other electronics that permit and are capable
of passing through the signal received at the headend with minimal
alteration or deterioration.
6.
Interconnection.
a.
A franchisee shall design its system so that it may be interconnected
with any or all other systems or similar communications systems in
the area. Interconnection of systems may be made by direct cable connection,
microwave link, satellite or other appropriate methods.
b.
Upon receiving the directive of the Governing Body to interconnect,
the franchisee shall immediately initiate negotiations with the other
affected system or systems so that costs may be shared proportionately
for both construction and operation of the interconnection link.
c.
The Governing Body may in writing grant reasonable extensions of
time to interconnect or rescind its request to interconnect upon its
own initiative or upon petition by the franchisee to the Governing
Body. The Governing Body shall rescind the request if it finds that
the franchisee has negotiated in good faith and the cost of interconnection
would cause unreasonable increase in subscriber rates.
d.
No interconnection shall take place without prior written approval
of the Governing Body. A franchisee seeking approval for interconnection
shall demonstrate that all signals to be interconnected will comply
with FCC technical standards for all classes of signals and will result
in no more than a low level of distortion.
e.
The franchisee shall cooperate with any interconnection corporation,
regional interconnection authority or State or Federal regulatory
agency which may be established for the purpose of regulating, facilitating,
financing or otherwise providing for the interconnection of communications
systems beyond the boundaries of the City.
7.
Integration of advancements in technology. A franchise
agreement may require a franchisee to periodically upgrade its cable
system to integrate advancements in technology as may be necessary
to meet the needs and interests of the community in light of the costs
thereof and/or to submit periodic reports on cable technology and
competition to the City Clerk.
8.
System design review process. In addition to any
requirements included in a franchise agreement, at least sixty (60)
days prior to the date construction of any rebuild is scheduled to
commence, the franchisee shall provide the City Clerk with notice
that a detailed system design and construction plan is available for
review by the City at a specific office of the franchisee located
in the metropolitan St. Louis area, which shall include at least the
following elements:
a.
Design type, trunk and feeder design, and number and location of
hubs or nodes.
b.
Distribution system — cable, fiber and equipment to be used.
c.
Plans for standby power.
d.
Longest amplifier cascade in system (number of amplifiers, number
of miles, type of cable/fiber).
e.
Design maps and tree trunk maps for the system. The
system design will be shown on maps of industry standard scale using
standard symbols and shall depict all electronic and physical features
of the cable plant. The City may review the plan and, within thirty
(30) days of the date the plan is made available for City review,
submit comments to the franchisee. Within fifteen (15) days of receipt
of the comments, the franchisee shall notify the City Clerk that a
revised plan is available for review by the City at a specific office
located in the metropolitan St. Louis area, either incorporating the
comments or explaining why the comments were not included. The City's
review does not excuse any non-performance under a franchise agreement,
this Chapter or other applicable law.
9.
Emergency alert system. A franchise shall comply
with 47 U.S.C. Section 544(g) and all regulations issued pursuant
thereto.
10.
Service calls and installations. Under normal operating
conditions, each of the following standards must be met no less than
ninety-five percent (95%) of the time as measured on a quarterly basis:
a.
Standard installations will 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.
b.
The appointment window alternatives for installations, service calls,
and other installation activities will be either a specific time or
within a maximum four (4) hour time block during normal business hours.
The grantee may schedule service calls and other installation activities
outside of normal business hours for the express convenience of a
subscriber, if so requested.
c.
A grantee may not cancel an appointment with a subscriber after the
close of business on the business day prior to the scheduled appointment.
d.
If a grantee's representative is running late for an appointment
with a subscriber and will not be able to keep the appointment as
scheduled, the subscriber must be contacted.
The appointment must be rescheduled, as necessary, at a time
which is convenient for the subscriber.
11.
Repairs and interruptions.
a.
Under normal operating conditions and excluding conditions beyond
the control of a grantee, every grantee will begin working on service
interruptions and outages within a reasonable time frame but in no
event later than twenty-four (24) hours after the service interruption
or outage becomes known. The grantee must begin actions to correct
other service problems on the business day following notification
of such service problems.
b.
The term "service interruption" means the loss of
picture or sound on one (1) or more cable channels or cable internet
service connectivity.
c.
Work on requests for service, excluding conditions beyond the control
of a grantee, must begin by the next business day after notification
of the problem and shall exercise all due diligence to complete the
work in the shortest period of time possible.
d.
Outside repairs to cable plant which cannot be made by the initial
service technician dispatched shall under normal operating conditions
be rescheduled within twenty-four (24) hours of the originally scheduled
service call. The subscriber does not need to be home for outside
plant and line repairs.
e.
A grantee may interrupt service only for good cause and for the shortest
time reasonably possible, including interruption for system upgrade,
maintenance and repair. Subject to the reasonable safety precautions
for the benefit of the grantee's employees and agents, routine maintenance
shall occur at times that affect the fewest number of subscribers,
generally between 12:00 A.M. and 6:00 A.M. To the extent that specific
neighborhoods will be affected by a planned outage, such as during
an upgrade, the grantee shall provide advance notice through telephone
calls, door hangers and/or other reasonable means.
f.
A grantee shall provide a credit equivalent to a pro rata of the
monthly cable rate for each service interruption exceeding four (4)
hours in any twenty-four (24) hour period, unless it is demonstrated
that the subscriber caused the outage, or the outage was planned as
part of an upgrade or other work that occurred between the hours of
12:00 A.M. and 6:00 A.M. of which the City and the subscriber received
appropriate prior notification. A subscriber is entitled to a full
refund for any cable system or disruption to a pay-per-view event.
These credits and refunds shall be made available upon request by
subscriber describing the time, date and nature of the disruption
experienced.
g.
Technicians capable of performing service related emergency repairs
and maintenance must be available twenty-four (24) hours a day, including
weekends and holidays.
h.
No charge shall be made to a subscriber for any service call relating
to grantee owned and grantee maintained equipment after the initial
installation of cable service unless the problem giving rise to the
service request can be demonstrated by grantee to have been:
(1)
Caused by the negligence or malicious destruction of cable equipment
by the subscriber; or
(2)
A problem established as having been non-cable system or cable
service in origin.
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A grantee may also assess a service charge for repeat service
calls to the same address in instances where the problem was not caused
by the grantee.
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i.
Cable drop lines, cable trunk lines, or any other type of outside
wiring that comprise part of a grantee's cable system that are located
underground shall be placed in such locations pursuant to City Code,
and the surrounding ground shall be restored as close as is practical
to its condition immediately prior to such underground construction
activity within a reasonable period of time after connection to the
cable system. Except for a grantee's maintenance facilities, no cable
drop line, cable trunk line, or any other type of outside wiring shall
be permitted to lay upon the ground for an unreasonable period of
time within the City, except for the express purpose of being immediately
connected to the cable system of grantee. The requirements of this
Subsection shall apply to all installation, reinstallation, service
or repair commenced by a grantee within the City during normal operating
conditions.
12.
Disconnections and downgrades.
a.
If any subscriber fails to pay a properly due monthly subscriber
fee, or any other properly due fee or charge, the grantee may disconnect
the subscriber's outlet; provided however, that such disconnection
shall not be effected until after the later of: (i) thirty (30) days
after the due date of said delinquent fee or charge; or (ii) fifteen
(15) days after delivery to subscriber of written notice of the intent
to disconnect. If a subscriber pays before expiration of the later
of (i) or (ii), the grantee shall not disconnect. Provided however,
that this Section does not apply to subscribers disconnected as a
result of insufficient funds.
b.
No subscriber may be disconnected without prior written notice.
c.
No subscriber may be disconnected for non-payment if payment of outstanding
balances is made before the scheduled date for disconnection, up to
and including the last business day before the scheduled disconnection.
d.
No subscriber may be disconnected due to a grantee's failure to timely
or correctly post payments.
e.
No subscriber may be disconnected outside of normal business hours
or on Sundays or holidays.
f.
Absent extenuating circumstances, a grantee is not required to reconnect
a subscriber with an undisputed outstanding balance.
g.
A grantee is permitted to refuse orders for premium or "pay-per-view"
services from subscribers with a record of non-payment.
h.
A grantee may disconnect subscriber premises that are responsible
for signal leakage in excess of applicable Federal limits. A grantee
may effectuate such disconnection without advance notice, provided
that a grantee shall immediately notify the subscriber with door tags
and/or telephone calls or other reasonable means. If the source of
the signal leakage is remedied, and the subscriber was not the cause
of such leakage, the grantee shall reconnect the subscriber at no
charge. If the subscriber was the cause of the signal leakage, the
grantee may charge a reasonable reconnection fee. For purposes of
this Section, use of FCC-approved navigation devices does not in and
of itself constitute subscriber caused signal leakage.
i.
Subscribers may request disconnection or a downgrade of cable service
at any time. A grantee may not impose any charge for service delivered
after the requested date of disconnection. As provided under Federal
law, subscribers may request a downgrade at no charge if made within
thirty (30) days of a rate increase.
j.
Nothing in this Chapter or Code shall limit the right of a grantee
to deny cable service to any household or individual which has a negative
credit or cable service history with the grantee, which may include
non-payment of bills, theft or damage to the grantee's equipment,
outstanding balances, or threats or assaults on employees of the grantee
in the course of their employment. In the event cable service is denied,
the grantee will give notice to the subscriber of the right to contact
the appropriate authority, as designated by the City.
13.
Communications between grantee and subscribers.
a.
Notifications to subscribers.
(1)
Every grantee shall provide written information to subscribers
on each of the following topics at the time of installation, at least
annually to all subscribers, and at any time upon request of a subscriber:
(a)
Product and services offered;
(b)
Prices and options for programming services and conditions of
subscription to programming and other services and facilities;
(c)
Installation and service maintenance policies;
(d)
Instructions on how to use services;
(e)
Channel positions of programming offered on a system; and
(f)
Billing and complaint procedures, including the name, address
and telephone number of the City.
(2)
Subscribers will be given thirty (30) days' advance notice of
any changes in rates, programming services, or channel positions,
if the change is within the control of the grantee. All such notice
shall be provided in writing by any reasonable means. In addition,
the grantee shall notify subscribers thirty (30) days in advance of
any significant changes in other information required by this Section.
Notwithstanding the foregoing or any provision of this franchise to
the contrary, a grantee shall not be required to provide prior notice
of any rate change that is the result of a regulatory fee, franchise
fee, or any other fee, tax assessment, or change of any kind imposed
by any government entity on the transaction between the grantee and
the subscriber.
b.
Billing.
(1)
Bills must be clear, concise and understandable. Bills must
be fully itemized including, but not limited to, basic and premium
service charges and equipment charges.
(2)
Bills must clearly delineate all activity during the billing
period, including optional charges, rebates and credits.
(3)
In case of a billing dispute, a grantee must respond to a written
complaint from a subscriber within twenty-one (21) calendar days.
(4)
Credits for service shall be issued no later than the subscriber's
next billing cycle after determination that the credit is warranted.
c.
Late charges. A grantee may impose a monthly fee
for any delinquent balance owed by a subscriber, subject to the following:
14.
Complaint log. Subject to the privacy provisions
of 47 U.S.C. Section 521 et seq., every grantee shall prepare and
maintain written records of all complaints made to them and the resolution
of such complaints, including the date of such resolution. Such written
records shall be on file at the office of grantee. A grantee shall
make available to grantor a written summary of such complaints and
their resolution upon request.
15.
Parental control. Every grantee shall make available
to any subscriber upon request a "lockout" device for blocking both
video and audio portions of any channel(s) of programming entering
the subscriber's premises. Such device shall be provided at a reasonable
charge, except to the extent that Federal law specifically provides
otherwise. A grantee may, however, require a reasonable security deposit
for the use of such a device.
16.
Service area.
a.
Area served. A franchisee shall build and maintain its system so that within a reasonable period of time, as established by the franchise, it is able to provide service to all households desiring service located within the franchise area without any construction charges (other than standard connection charges and drop charges as indicated in Subsection (16)(b)(5)). A franchisee must build and maintain its system so that it can extend service to households desiring service located outside the franchise area in accordance with Subsections (16)(b)(1) through (16)(b)(6). Connections to commercial customers shall be governed by Subsection (16)(b)(7).
b.
Line extension requirements.
(1)
For areas within the City limits but outside the franchise area, including areas annexed after the effective date of its franchise, a franchisee shall upon request of the Governing Body extend its trunk and distribution system to serve households desiring service without any construction charge (other than standard connection charges and drop charges as indicated in Subsection (16)(b)(5)), unless the franchisee demonstrates to the Governing Body's satisfaction evidenced by written decision that circumstances justify a specific charge where the new subscriber requesting service is located within five hundred (500) feet from the termination of the cable system, or the number of potential subscribers to be passed by such extension is equal to or greater than twenty (20) potential households per cable mile measured from any point on the system.
(2)
In circumstances where that the factors requiring line extension
do not exist as set forth in the foregoing paragraph (A) are not met,
the franchisee shall on the request of the Governing Body extend its
cable system based upon the following cost-sharing formula. The franchisee
shall contribute an amount equal to the construction costs per mile
multiplied by the length of the extension in miles, multiplied by
a fraction where the numerator equals the number of potential households
per mile at the time of the request and the denominator equals twenty
(20). Households requesting service as of the completion of construction
can be required to bear the remainder of the total construction costs
on a pro rata basis.
(3)
The "construction costs" are defined as the
actual turnkey cost to construct the entire extension including lines,
materials, electronics, pole make-ready charges and labor, but not
the cost of drops except as provided below. If the franchisee proposes
to require a household requesting extension to make a contribution
in aid of extension, it must: (1) notify the Governing Body in advance;
(2) send the Governing Body a copy of the invoice showing the amount
actually charged each household requesting extension; and (3) within
thirty (30) days of completion of the extension, furnish proof of
the total cost of the extension and make any appropriate refunds if
the total cost is less than the amounts charged in advance of construction.
At the end of each calendar year, the franchisee must calculate the
amount any contributing person would have paid based on the number
of persons served at that time and pay back the difference between
the amount which would then be owed. The franchisee shall report such
calculations and refunds to the City Clerk by the end of January of
the following year.
(4)
Installation of drops. Except as Federal rate
regulations may otherwise require, the franchisee shall not assess
any additional cost for service drops of one hundred fifty (150) feet
or less unless the franchise demonstrates to the Governing Body's
satisfaction, evidenced by written decision, that circumstances justify
a specific charge. Where a drop exceeds one hundred fifty (150) feet
in length, a franchisee may charge the subscriber for the difference
between franchisee's actual costs associated with installing a one
hundred fifty (150) foot drop and the franchisee's actual cost of
installing the longer drop, provided that drop length shall be the
shorter of (1) the actual length of installed drop or (2) the shortest
practicable distance to the point where the franchisee would be required
to extend its distribution system.
(5)
Location of drops. Except as Federal rate regulations
may otherwise require, in any area where a franchisee would be entitled
to install a drop above-ground, the franchisee will provide the subscriber
the option to have the drop installed underground but may charge the
subscriber the difference between the actual costs of the above-ground
installation and the actual cost of the underground installation.
(6)
Time for extension. A franchisee must extend
service to any person who requests it (1) within seven (7) days of
the request within the franchise area or where service can be provided
by activating or installing a drop within one hundred fifty (150)
feet of the existing distribution system; (2) within thirty (30) days
of the request for service outside the franchise area where an extension
of one-half (½) mile or less (but more than one hundred fifty
(150) feet) is required; or (3) within six (6) months for service
outside the franchise area where an extension of one-half (½)
mile or more is required.
(7)
Because existing conditions can vary dramatically, franchisee
may in its discretion require commercial customers to pay all reasonable
costs of connection (including time and materials) in excess of the
average cost of connection for residential services.
c.
Newly annexed areas. In such cases where mandatory
extension of the cable system is required for areas newly annexed
after the effective date of the franchise, but the technical capabilities
of the then-existing cable system are such that the minimum technical
performance standards required by this franchise or the FCC cannot
be met, then the grantee shall be required to make such extension
only if the grantee can earn a fair return (as measured by the grantee's
weighted average cost of capital) on the incremental investment required
combined with the overall investment base of the cable system within
the boundaries of the franchise area.
d.
Special agreements. Nothing herein shall be construed
to prevent a grantee from serving areas not covered under this Section
upon agreement with developers, property owners or residents.
17.
Customer service reporting requirements. The City
may require upon reasonable request that a grantee periodically prepare
and furnish to City semi-annual reports and any other reasonable information
relevant to the grantee's compliance with the customer service requirements
of this Chapter measured on a quarterly basis.
E.
Operation And Maintenance.
1.
Open books and records. Every grantee shall cooperate
with the City with respect to City's administration of this Chapter
and Code and any applicable franchise granted pursuant to it. Subject
to the privacy provisions of the Cable Act, City shall have the right
to inspect, upon three (3) business days' notice, during normal business
hours, all books, records, maps, plans, financial statements, service
complaint logs, performance test results, and other existing like
materials of a grantee that relate to the operation of the grantee's
cable system and that are reasonably necessary to grantor's enforcement
or administration of this Code or the grantee's franchise. A grantee
shall not be required to maintain any books or records for franchise
compliance purposes longer than three (3) years, except that financial
records necessary to demonstrate compliance with the required cable
franchise fee payments shall be kept for six (6) years. Upon request,
the City will treat designated information disclosed by a grantee
as confidential to the extent permissible under State and Federal
law. All such review of a grantee's books and records shall be performed
by an independent party if the City itself enters into the business
as a competitor.
2.
Communications with regulatory agencies. Copies
of all petitions, applications, communications and reports submitted
by a grantee to the FCC, Securities and Exchange Commission, or any
other Federal or State regulatory commission or agency having jurisdiction
in respect to any matters directly affecting the cable system operations
shall be made available contemporaneously to the City upon request.
Copies of responses from the above regulatory agencies to a grantee
likewise shall be made available promptly to the City upon request.
If the City is specifically named in any such pleading or response,
the City shall automatically be furnished a copy.
3.
Annual reports.
a.
Upon request, a grantee shall make available to City, within ninety
(90) days of the end of each of the applicable grantee's fiscal years
during the term of this franchise, the following:
(1)
A revenue statement certified by a representative of the grantee
showing the gross revenues of the grantee for the preceding fiscal
year;
(2)
A current list of names and addresses of each officer and director
and other management personnel of the grantee;
(3)
A copy of all documents that relate directly to the grantee's
cable system that were filed with any Federal, State or local agencies
during the preceding fiscal year and that were not previously filed
with City;
(4)
A statement of the grantee's current billing practices and charges;
(5)
A copy, if any, of the grantee's current subscriber service
contract; and
(6)
A copy of annual reports to stockholders, if any, for operating
company and parent company.
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All of the above information shall not be required annually
unless there is a change after the first (1st) filing.
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b.
City and its agents and representatives shall have authority to arrange
for and conduct an audit during normal business hours of the books
and records of grantee that are reasonably necessary for the enforcement
of a franchise. A grantee shall first be given thirty (30) days' notice
of the audit, the description of and purpose for the audit, and a
description, to the best of City's ability, of the books, records
and documents that City wants to review. The costs and expense of
such audit shall be borne by the grantee if the audit reveals a discrepancy
of two percent (2%) or more from the information related to the City.
c.
Any review or audit of a grantee's books and records shall be performed
by an independent party if the City itself enters into the business
as a competitor to provide cable services.
4.
Index of reports.
a.
Every grantee shall compile and maintain an Index of Reports that
shall list all reports, documents and filings that it has prepared
with respect to the cable system over the course of the past two (2)
years as a result of the requirements of the FCC or this Chapter or
Code or franchise, including technical cable system testing and proof
of performance reports and customer service compliance measurements
and shall provide a copy of such Index of Reports to the City annually
and upon written request.
b.
A grantee shall make a copy of any reports or documents listed in
the Index of Reports available to the City upon request.
5.
Additional reports and assistance. Upon request
of the City, a grantee shall add additional reports to the Index which
are reasonably necessary to the City's proper enforcement of this
Chapter, Code or franchise. The City shall require such reports only
through passage of a formal resolution of the City. In addition, upon
request, a grantee shall cooperate and assist the City in interpreting
and understanding any report required under this Chapter, Code or
its franchise, including through the provision of explanatory graphs
and/or charts.
6.
Service contract and subscriber information.
a.
A grantee shall have authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall
be reasonably necessary to enable the grantee to exercise its rights
and perform its obligations under this Chapter and its franchise and
to assure uninterrupted cable service to all of its subscribers; provided
such rules, regulations, terms and conditions shall not be in conflict
with the provisions of this Code, Federal, State and/or local law,
or any applicable rules and regulations.
b.
Upon request, a grantee shall submit to City any subscriber contract
form that it utilizes. If no written contract exists, a grantee shall
file with the City a document completely and concisely stating the
terms of the residential subscriber contract offered, specifically
including the length of the subscriber contract. The length and terms
of any subscriber contract shall be available for public inspection
during normal business hours.
F.
Financial Provisions, Remedies, Procedures And Due Process.
1.
Annual cable franchise fee.
a.
As compensation for grant of a franchise and in consideration of
permission to use the rights-of-way of the City for the construction,
operation, maintenance and reconstruction of a cable system, and to
defray the costs of franchise obligations, every grantee shall pay
to the City on an annual basis throughout the term of its franchise
a sum totaling five percent (5%) of the grantee's gross revenues.
b.
Not a tax or in lieu of any other tax or fee.
(1)
The franchise fee is not a tax, license or fee subject to any
requirement of voter approval, but rather is a rental charge for special
and individualized use of public property.
(2)
The franchisee fee is in addition to all other fees and all
taxes and payments that a franchisee or other person may be required
to pay under any Federal, State or local law, including any applicable
property and amusements taxes, except to the extent that such fees,
taxes or assessments are a franchise fee under 47 U.S.C. Section 542.
c.
Further, every grantee shall market any "bundled" services to fairly
reflect an appropriate and reasonable division of services among the
various services offered. Whether or not a grantee separates services
on a subscriber's bill, it will provide to the City the amounts upon
which it will pay the communications service use fee and any other
applicable taxes or fees based on the provision of communications
service, and the amounts upon which it will pay the cable service
franchise fee. Should a grantee engage in billing practices that,
in the determination of the City, do not fairly reflect an appropriate
split of communications services and cable television services, the
City will notify the grantee in writing of its determination. The
parties will meet and discuss in good faith whether the billing practices
result in an unfair payment of fees to the City. If the parties do
not agree on an appropriate method of determining which charges are
subject to communications service use fees and which are subject to
the cable service franchise fee, the parties may subject the dispute
to arbitration or may resort to other methods of dispute resolution,
including litigation. Taxes or fees which are not paid on the appropriate
division of the bundled bill, when ultimately paid, will be subject
to all interest and penalties provided by the applicable portion of
this Code.
d.
Payments due City under this Section shall be computed quarterly,
for the preceding quarter, as of March thirty-first (31st), June thirtieth
(30th), September thirtieth (30th), and December thirty-first (31st).
Each quarterly payment shall be due and payable no later than forty-five
(45) days after the dates listed in the previous sentence. Each payment
shall be accompanied by a brief report by the grantee showing the
basis for the computation and a "Franchise Fee Worksheet" listing
all of the sources of revenues attributable to the operation of the
grantee's system.
e.
Should any additional monies be due to the City as a result of information
contained in the annual financial report of a grantee or by audit
as permitted by this Chapter, the grantee shall pay such additional
monies to the City within sixty (60) days after receipt of notice
of same from the City.
f.
In the event any franchisee fee or other payment is not made on or
before the date specified herein, the franchisee and any other person
shall pay interest charges 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. In addition,
franchisee shall pay an additional sum of two percent (2%) of the
amount due to defray the City's additional expenses by reason of the
delinquency.
g.
No acceptance of any payment shall be construed as an accord that
the amount paid is in fact the correct amount, nor shall such acceptance
of payment be construed as a release of any claim the City may have
for further sums payable under the provisions of this Chapter, Code
or applicable franchise. All amounts paid shall be subject to audit
and recomputation by the City or its designee, at any time upon reasonable
notice and specification of the documents requested to be reviewed.
City's right to audit, and the grantee's obligations to retain records
related to the franchise fee audit, shall expire six (6) years from
the date on which each franchise fee payment by the grantee is due.
2.
Security fund. Each grantee may be required to maintain
a security fund with the City to ensure compliance with this Chapter,
Code and applicable franchise in an amount and in a manner as set
forth in the grantee's franchise.
3.
Bonds, indemnification and insurance. Each grantee shall maintain bonds and insurance with the City in amounts and in a manner as set forth in the grantee's franchise. Each grantee also shall be required to indemnify the City in a manner as set forth in Section 610.010 and in the grantee's franchise.
4.
Remedies and enforcement procedure.
a.
Whenever the City has reason to believe that a grantee has violated
any provision of this Code or its franchise, including the customer
service and telephone availability requirements, the City shall first
notify the grantee in writing of the violation and demand correction
within a reasonable time, which shall not be less than thirty (30)
days. If the grantee fails to demonstrate to the reasonable satisfaction
of the City that no violation exists, or if the grantee fails to correct
the violation within the time prescribed, or if the grantee is unable
to correct the violation and fails to commence corrective action within
the time prescribed and to diligently remedy such violation thereafter,
the grantee shall then be given written notice of not less than thirty
(30) days of a public hearing to be held before the Governing Body.
Said notice shall indicate with reasonable specificity the violation
alleged to have occurred. This procedure shall apply to all alleged
Code or franchise violations, including those in which grounds for
revocation are considered.
b.
At the public hearing, the Governing Body shall hear and consider
all relevant evidence and thereafter render findings and a decision
based upon the evidence.
c.
In the event the City finds that the grantee has corrected the violation
or promptly commenced correction of such violation after notice thereof
from the City and is diligently proceeding to fully remedy the violation,
or that no violation has occurred, the proceedings shall terminate
and no penalty or other sanction shall be imposed.
d.
In the event the City finds that a violation exists and that the
grantee has not corrected the same in a satisfactory manner or did
not promptly commence and diligently proceed to correct the violation,
the City may impose penalties and/or liquidated damages from the Security
Fund, as follows:
(1)
For system construction schedule violations including, but not
limited to, provisions relating to initial construction schedules
and system upgrade construction schedule, five hundred dollars ($500.00)
per day of non-compliance;
(2)
For all other violations, two hundred fifty dollars ($250.00)
per day per violation.
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The City shall provide the grantee with written notice of its
decision together with a written finding of fact explaining the basis
for such a decision.
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e.
If the City elects to assess penalties or liquidated damages, then
such election shall constitute the City's exclusive remedy for a period
of sixty (60) days. Thereafter, if the grantee remains in non-compliance,
the City may pursue any other available remedy, including franchise
revocation.
f.
In the event that a franchise is cancelled or terminated by reason
of the default of the grantee, the security fund deposited pursuant
to the franchise shall remain in effect and available to the City
until all pending claims or penalties are resolved or settled, after
which point any remaining amounts in the Security Fund shall revert
to the possession of the grantee.
g.
The rights reserved to the City with respect to the Security Fund
are in addition to all other rights of City, whether reserved by this
Code, applicable franchise, or authorized by law, and no action, proceeding
or exercise of a right with respect to such Security Fund shall affect
any other right City may have.
h.
The foregoing provisions shall not be deemed to preclude the City
from obtaining any other available remedies for repeated violations
of the same general type, whether remedied or not.
5.
Grounds for revocations. In addition to any rights
in this Code or applicable franchise, the City reserves the right
to utilize the above-described enforcement procedure to revoke a franchise,
and all rights and privileges pertaining thereto, in the event that
any of the following occur, and the City and a grantee are not able
to mutually agree upon a cure or alternate remedy:
6.
Right of appeal.
a.
Upon the imposition of a penalty or revocation decision, a grantee
shall have a period of one hundred twenty (120) days subsequent to
the date of the formal adoption of the decision by the Governing Body
within which to file an appeal with a court of competent jurisdiction.
b.
During any such appeal period, the franchise shall remain in full
force and effect.
G.
Foreclosure, Receivership And Abandonment.
1.
Foreclosure. Upon the foreclosure or other judicial
sale of all or a part of the cable system, or upon the termination
of any lease covering all or part of the cable system, a grantee shall
notify the City of such fact and such notification shall be treated
as a notification that a change in control of the grantee has taken
place, and the provisions of this Code governing the consent to transfer
or change in ownership shall apply without regard to how such transfer
or change in ownership occurred.
2.
Receivership. The City shall have the right to cancel
a franchise one hundred twenty (120) days after the appointment of
a receiver or trustee to take over and conduct the business of a grantee,
whether in receivership, reorganization, bankruptcy, or other action
or proceeding, unless such receivership or trusteeship shall have
been vacated prior to the expiration of said one hundred twenty (120)
days, or unless:
a.
Within one hundred twenty (120) days after its election or appointment,
the receiver or trustee has fully complied with all the provisions
of the franchise and remedied all defaults thereunder; and
b.
Such receiver or trustee, within said one hundred twenty (120) days,
has executed an agreement, duly approved by a court having jurisdiction,
whereby such receiver or trustee assumes and agrees to be bound by
each and every provision of this Code and applicable franchise.
H.
Purchase Of System. If a renewal or extension of a franchise
is denied without further right of appeal, or a franchise is lawfully
terminated, with all rights of appeal exhausted, the City may acquire
ownership of the cable system or effect a transfer of ownership of
the cable system to another person, any such acquisition or transfer
shall be in accordance with and to the extent permitted by 47 U.S.C.
Section 547 as follows:
1.
Upon revocation of a franchise, such valuation shall not include
any sum attributable to the value of the franchise itself and plant
and property shall be valued according to its book value at the time
of revocation, or the cable system's initial cost less depreciation
and salvage, whichever of the two (2) is lower.
2.
At the expiration of a franchise, such valuation shall be at fair
market value, exclusive of the value attributed to the franchise itself.
I.
Sale Or Transfer Of Franchise.
1.
A grantee shall not sell, transfer, lease, assign, sublet or dispose
of, in whole or in part, an interest in or control of a franchise
or cable system without the prior consent of the City, which consent
shall not be unreasonably denied or delayed and may be denied only
upon a good faith finding by the City that the proposed transferee
lacks the legal, technical, or financial qualifications to consummate
the transaction and operate the cable system so as to perform its
obligations under the franchise. This Section shall not apply to sales
of property or equipment in the normal course of business. Consent
from the City shall not be required for a transfer in trust, mortgage,
or other instrument of hypothecation, in whole or in part, to secure
an indebtedness, or for a pro forma transfer to a corporation, partnership,
or other entity controlling, controlled by, or under common control
with a grantee.
2.
The following events shall be deemed to be a sale, assignment, or
other transfer of an interest in or control of a franchise or cable
system requiring compliance with this Section:
a.
The sale, assignment, or other transfer of all or a majority of a
grantee's assets in the City;
b.
The sale, assignment, or other transfer of capital stock or partnership,
membership, or other equity interests in a grantee by one (1) or more
of its existing shareholders, partners, members, or other equity owners
so as to create a new controlling interest in grantee;
c.
The issuance of additional capital stock or partnership membership
or other equity interest by a grantee so as to create a new controlling
interest in a grantee; and
d.
A grantee's agreement to transfer management or operation of the
grantee or the system to an unaffiliated entity so as to create a
new controlling interest in the grantee. The term "controlling
interest", as used herein, means majority equity ownership
of a grantee.
3.
A transfer solely for security purposes such as the grant of a mortgage
or security interest, including the pledge or grant of a mortgage
or security interest to lenders of a grantee's assets, including,
but not limited to, the franchise, such as in a transaction commonly
known as an "initial public offering" shall not be deemed to be a
sale, assignment or other transfer of an interest in or control of
a franchise or cable system and thus shall not require compliance
with this Section.
4.
In the case of any sale or transfer of ownership of an interest in
or control of a franchise or cable system, the City shall have one
hundred twenty (120) days to act upon any request for approval of
such sale or transfer that contains or is accompanied by such information
as is required in accordance with FCC regulations and the requirements
of this Code. If the City fails to render a final decision on the
request within one hundred twenty (120) days after receipt by the
City of all required information, such request shall be deemed granted
unless the requesting party and the City agree to an extension of
the one hundred twenty (120) day period.
5.
The City reserves any legal right it has under applicable law to
require a grantee to pay all costs and expenses incurred by the City
in connection with the sale, assignment or transfer of a franchise
including, but not limited to, the City's costs of reviewing the qualifications
of any proposed transferees. Such reimbursement shall not be considered
a franchise fee.
J.
Rights Of Individuals Protected.
1.
Discriminatory practices prohibited. A grantee shall
not deny cable service, deny access, or otherwise discriminate against
subscribers, programmers or general citizens on the basis of income
level, race, color, religion, national origin, sex or age. Every grantee
shall strictly adhere to the equal employment opportunity requirements
of State and Federal law. Every grantee shall comply at all times
with all other applicable Federal, State and local laws and all executive
and administrative orders relating to non-discrimination.
2.
Subscriber privacy. Every grantee shall at all times
comply with the Federal subscriber privacy requirements codified at
47 U.S.C. Section 551.
K.
Miscellaneous Provisions.
1.
Rate regulation. The City reserves the right to
regulate rates for basic cable service and any other services offered
over a cable system to the extent permitted by Federal or State law.
A grantee shall be subject to the rate regulation provisions provided
for herein, and those of the Federal Communications Commission (FCC)
at 47 C.F.R., Part 76.900, Subpart N. The City shall follow the rules
relating to cable rate regulation promulgated by the FCC at 47 C.F.R.,
Part 76.900, Subpart N.
2.
Rights reserved to grantor. Upon either final non-appealable
determination of non-renewal or revocation of a franchise, grantor
shall have discretion to permit a grantee by mutual consent to continue
to operate the cable system for an extended period of time agreed
upon by the parties. Any such operation of the system by a grantee
shall be in accordance with the terms and conditions of this Chapter
or franchise and shall provide the regular subscriber service and
any and all of the services that may be provided at that time.
[Ord. No. 315 §§1 —
2, 3-19-2001; Ord. No.
780, 3-18-2019]
A.
Scope. The provisions of this Section 610.040 shall apply as provided herein to all ROW users, and to the full extent permitted by law, additionally to all construction activities in public utility easements.
B.
Permit Required; Requirements; Denial And Revocation.
1.
Excavation Permit Required. Except as otherwise provided herein,
no ROW user or other person shall perform excavation work in the ROW
without an excavation permit. Any person desiring to excavate in the
ROW shall first apply for an excavation permit as outlined herein,
on an application form provided by the City, and submit the application
fee established by the City and pay all applicable fees to obtain
an excavation permit, in addition to any other building permit, license,
easement, or other authorization required by law, unless such excavation
must be performed on an emergency basis as provided in this Code.
The City Engineer shall, within thirty-one (31) days of receipt of
such application, either approve the application or inform the ROW
user, in writing, of the reasons for disapproval. An excavation permit
should be obtained for each project unless otherwise provided for
herein. A separate special permit or lease shall be required for excavation
in or use of any real property interest of the City that is not ROW.
All excavation permits shall expire after ninety (90) days from the
date of issuance, unless otherwise specified in the excavation permit.
An applicant whose excavation permit application has been withdrawn,
abandoned, or denied for failure to comply with this Code shall not
be refunded the application fee. The City Engineer shall provide each
ROW user at the time a permit is issued hereunder a suitable placard
plainly written or printed at least one (1) inch high with the following
notice: "City of Green Park, Permit No. _____. Expires _____.", and
in the first blank space there shall be inserted the number of said
permit and after word "expires" shall be stated the date when the
permit expires. It shall be the duty of any ROW user hereunder to
keep the placard posted in a conspicuous place at the site of the
work. It shall be unlawful for any person to exhibit such placard
at or about any site not covered by such permit, or to misrepresent
the number of the permit or the date of expiration of the permit.
The City Clerk shall keep a full and complete account of all excavation
permits issued showing the date, the person to whom it was issued,
the permit expiration date, and the location of the proposed work.
2.
Local Representative Designation. Each ROW user shall designate
a local person familiar with the facilities that shall act as a local
agent for the ROW user and shall be responsible for satisfying information
requirements of this Code. The ROW user shall present to the City
the agent's name, address, telephone number, and email address.
The agent shall be the person to whom relocation notices and other
such notices shall be sent, and with whom rests the responsibility
to facilitate all necessary communications. The ROW user shall be
responsible for all costs incurred by the City due to the failure
to provide or update, as needed, such information to the City.
3.
Facilities Maintenance Permit; Exemptions. No person shall perform
facilities maintenance in the rights-of-way without first obtaining
a facilities maintenance permit from the City Engineer, except where
such facilities maintenance is expressly authorized by an existing
valid excavation permit for the applicable maintenance location or
is exempt herein. In addition to the conditions set forth below, conditions
of a facilities maintenance permit shall be as established in such
maintenance permit and shall include requirements of notice to the
City whenever traffic lanes are to be obstructed, manhole covers or
safety barriers removed or altered, temporary or other barricades
installed, and other events set forth in the facilities maintenance
permit. All facilities maintenance permits shall expire after sixty
(60) days from the date of issuance, unless otherwise specified in
such maintenance permit. A facilities maintenance permit shall not
be required for:
a.
ROW users performing routine maintenance which does not require
excavation, does not disrupt traffic or pedestrians, and requires
no more than four (4) hours to complete, provided that at minimum
two (2) hours' notice is provided to the City during normal business
hours;
b.
Contractors working on the construction or reconstruction of
public improvements and which are operating pursuant to a contract
with the City for such construction; or
c.
Routine maintenance on previously approved small wireless facilities,
as defined by Section 67.5111, RSMo., replacement of such small wireless
facilities that are the same or smaller in size, weight, and height,
or installation, placement, maintenance, operation, or replacement
of micro wireless facilities, as defined by Section 67.5111, RSMo.,
that are strung on cables between utility poles in compliance with
applicable safety and building codes, when all such work will not
involve excavation, affect traffic patterns, obstruct traffic in the
ROW, or materially impede use of a sidewalk, and provided the ROW
user submits as-builts of such small wireless facilities or micro
wireless facilities so that the City may maintain an accurate inventory
of facilities installed in the ROW.
4.
Bulk Or Individual Permits. The City Engineer may issue individual
permits for specific proposed excavations or facilities maintenance
or may issue bulk permits covering multiple projects, types of actions,
or locations during a period of up to one (1) year that may be thereafter
performed during that permit year. Where a bulk permit is proposed,
the ROW user shall provide sufficient information regarding the types
of actions and locations to be approved so as to allow the City Engineer
to condition and ensure compliance with safety and other regulations
herein.
5.
Emergencies. In case of an emergency requiring immediate attention
to remedy defects, and in order to prevent loss or damage to persons
or property, it shall be sufficient that the person making such excavation
or performing such facilities maintenance obtain the necessary permit
as soon as possible and may proceed without a permit when such permit
cannot reasonably be obtained before starting such emergency excavation
or facilities maintenance. Notice to the City of the emergency shall
be provided immediately to the City Engineer during regular City Hall
office hours, or by telephone to the Police Department at all other
times. The appropriate permit shall be obtained as soon as reasonably
possible, and not later than five (5) business days, or as otherwise
directed by the City. In the event the City becomes aware of an emergency
requiring facilities work, the City shall attempt to contact a representative
of each ROW user affected, or potentially affected, by the emergency
work. If no response is received by a particular ROW user to whom
contact is attempted, the City Engineer may take whatever action he/she
deems necessary to respond to the emergency, the cost of which shall
be borne by the person whose action or inaction occasioned the emergency
or by the ROW user if the emergency was occasioned by an act of nature.
6.
Law Compliance Incorporation. Every permit issued hereunder
shall incorporate the requirements and terms of this Code, and all
applicable ordinances, to the extent permitted by law. The ROW user
shall perform such work in accordance with the issued permit and applicable
provisions of this Code and any subsequent ordinances or regulations
that may be adopted by the City regarding excavation or maintenance
work. In addition, all ROW users shall be subject to all technical
specifications, design criteria, policies, resolutions, and ordinances
now or hereafter adopted or promulgated by the City in the reasonable
exercise of its police power relating to permits and fees, sidewalk
and pavement cuts, facility location, construction coordination, surface
restoration and other requirements on the use of the rights-of-way.
A ROW user shall perform all excavations or facilities maintenance
in full compliance with all applicable engineering codes adopted or
approved by the City, all specifications established by the City Engineer,
and in accordance with applicable Statutes of the State of Missouri,
and the rules and regulations of the PSC, FCC, and any other local,
State, or Federal agency having jurisdiction over the parties. The
ROW user shall comply with the excavation requirements of Missouri
One (1) Call established by Sections 319.010, et. seq., RSMo., as
amended.
7.
Notice. Prior to commencing work in the ROW, the ROW user shall
provide at least twenty-four (24) hours' notice of intention
to commence work to the City Engineer. Such notice may be waived by
the City Engineer by issuance of the permit.
8.
Subsurface Utility Engineering Survey. Unless determined by
the City Engineer as unnecessary, prior to the commencement of any
construction or alteration of its facilities located in the rights-of-way,
the ROW user shall furnish to the City Engineer a subsurface utility
engineering study on the proposed route of construction, expansion,
or alteration, which shall consist of the following tasks:
a.
All available plans, plats, and other location data indicating
the existence and approximate location of all facilities along the
proposed construction route;
b.
Completion of a visual survey and written record of the location
and dimensions of any above-ground features of any underground facilities
along the proposed construction route, including, but not limited
to, manholes, valve boxes, utility boxes, posts, and visible street
cut repairs;
c.
Plot and incorporate the data obtained from completion of tasks
(a) and (b) above, onto the ROW user's proposed system route
maps, plan sheets, and computer-aided drafting and design (CARD) files;
and
d.
Provide all such data collected into a CARD file (or other format
as may be identified by the City Engineer) compatible with that used
by the City Engineer and deliver a copy to the City Engineer.
9.
Permit Specific Conditions. To the extent permitted by applicable
law, the City Engineer may also impose reasonable conditions upon
the issuance of a permit and the performance of excavation and ROW
work in order to protect the public health, safety, and welfare, to
ensure the structural integrity of the rights-of-way, to protect the
property and safety of other users of the rights-of-way, and to minimize
the disruption and inconvenience to the traveling public. Such reasonable
conditions may include, but are not limited to:
a.
The amount of excavation or facilities maintenance which may
occur at one (1) time and the amount of rights-of-way which may be
obstructed during construction;
b.
The number or size of conduits or other facilities that may
be installed by each ROW user based on the reasonable needs to ensure
that no one (1) ROW user may unreasonably consume a disproportionate
amount of the available rights-of-way to deter competition or deprive
the public or others of the reasonable use of the rights-of-way;
c.
Posting of an additional or larger performance and maintenance bond for additional Facilities, except as otherwise provided in Section 610.040(P) hereof, when the established amount is reasonably determined to be insufficient;
d.
The location and nature of all facilities, based on a non-discriminatory
basis in ensuring the safe, efficient, and appropriate use of the
ROW consistent with this Code and applicable law; and
e.
Other reasonable conditions regarding the timing, safety precautions,
space, or specific implementation of the specific work proposed.
10.
Joint Permit Applications. Applicants may apply jointly for
permits in the rights-of-way at the same time and place. All joint
applicants must jointly execute all required documents and shall be
jointly and severally liable for all duties and obligations within
this Code. Persons who apply jointly may share in the payment of the
application deposit fee. Such persons must agree among themselves
as to the portion each shall pay.
11.
Permit Denial. The City Engineer may deny an application for
a permit if:
a.
To the extent permitted by law, the person does not have a current
franchise, license, or ROW use agreement, or other authorization with
the City.
b.
The ROW user, or any persons acting on the behalf of the ROW
user, fails to provide all the necessary information requested by
the City for managing the rights-of-way.
c.
The ROW user, or any persons acting on the behalf of the ROW
user, including contractors or subcontractors, has a history of non-compliance
or permitting non-compliance within the City. For purposes of this
Section, "history of non-compliance or permitting non-compliance within
the City" shall include where the ROW user, or any persons acting
on the behalf of the ROW user, including contractors or subcontractors,
has failed to return the rights-of-way to its previous condition under
a previous permit, has failed to comply with the terms of this Code,
or has violated terms, or is in violation of terms of the ROW users'
franchise, ROW use agreement, license, or other authorization with
the City.
d.
The City has provided the ROW user with a reasonable, competitively
neutral, and non-discriminatory justification for requiring an alternative
method for performing the excavation or facilities maintenance identified
in the permit application, or a reasonable alternative route that
will not result in additional installation expense of more than ten
percent (10%) to the ROW user or a declination of service quality.
e.
Any other violations or non-compliance caused by or through
the ROW user of any applicable City, State, or Federal law or regulation,
except where such violation is prohibited by applicable law for being
a basis for denial.
f.
The City determines that the denial is necessary to protect
the public health and safety, provided that the authority of the City
does not extend to those items under the jurisdiction of the PSC,
such denial shall not interfere with a ROW user's right of eminent
domain of private property, and such denials shall only be imposed
on a competitively neutral and non-discriminatory basis.
12.
Permit Revocation. The City Engineer may, after reasonable notice
and an opportunity to cure, revoke a permit without fee refund, but
only in the event of a substantial breach of the terms and material
conditions of the permit. A substantial breach by a ROW user includes
but is not limited to:
a.
A material violation of a provision of the permit;
b.
An evasion or attempt to evade any material provision of the
permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the City or its citizens;
c.
A material misrepresentation of fact in the permit application;
d.
A failure to complete work by the date specified in the permit,
unless a permit extension is obtained, or unless the failure to complete
the work is due to reasons beyond the ROW user's control;
e.
A failure to correct, within the time specified by the City,
work that does not conform to applicable national safety codes, industry
construction standards, or local safety codes, upon inspection and
notification by the City of the faulty condition; or
f.
Such other lawful reasons.
13.
Permit Modification. If at any time it appears that the duration
or scope of the work is or will become materially different from that
allowed by the permit, the ROW user shall inform the City Engineer.
The City Engineer may issue a waiver, an extension or a revised permit,
or require that the ROW user reapply for a permit in accordance with
all requirements of this Code.
C.
Mapping Of Facilities. Each ROW user shall maintain and file with
the City updated maps, in such form as may be required by the City
Engineer and in the form maintained by the ROW user, providing the
location and sufficient detail of all facilities existing in the rights-of-way
on the effective date of any agreement or franchise, and those reasonably
anticipated to be installed in each six-month period subsequent to
the initial and updated filing, and such other related information
as required by the City Engineer. Such maps shall be updated and kept
current with the City.
D.
No Interference. All ROW users shall construct and maintain its facilities
so as not to interfere with other users of the rights-of-way. Except
as may otherwise be provided or as determined by the City Engineer,
the ROW user shall, prior to commencement of work, execute a City-approved
resident-notification plan to notify residents affected by the proposed
work. All construction and maintenance by ROW user or its subcontractors
shall be performed in accordance with industry standards. The ROW
user shall, in the performance of any excavation, facilities maintenance,
or other ROW work, limit such work to that necessary for efficient
operation and so as not to interfere with other users of the rights-of-way.
The ROW user shall not interfere with or alter the facilities of the
City or other ROW user without their consent and shall be solely responsible
for such. ROW users shall comply with the requirements of sight triangles
and nothing shall be erected, placed, planted, or allowed to grow
in such a manner as to materially impede vision within the triangular
area formed by the rights-of-way lines and a line connecting them
at points thirty (30) feet from their point of intersection or at
equivalent points on a private street.
E.
Maintenance Of Facilities. Each ROW user shall maintain its facilities
in good and safe condition and in a manner that complies with all
applicable Federal, State, and local requirements.
F.
Advertising, Signs Or Extraneous Markings. ROW users shall not place
or cause to be placed any sort of signs, advertisements, or other
extraneous markings, whether relating to ROW user or any other person
or entity on the public rights-of-way, except such necessary minimal
markings as approved by the City as are reasonably necessary to identify
the facilities for service, repair, maintenance or emergency purposes,
or as may be otherwise required to be affixed by applicable law or
regulation.
G.
Tree Protection. Unless otherwise approved, in writing, by the City,
a ROW user shall neither remove, cut, nor damage any trees, or their
roots, in and along the ROW and public places of the City. Tree trimming
and pruning may be permitted to occur only after prior written notice
to the City of the extent of trimming and pruning to be performed
and the prior written approval thereof by the City. The type and extent
of trimming and pruning shall be in accordance with the requirements
of the City. In the event the person severely disturbs or damages
any tree or other landscaping in the rights-of-way to the detriment
of its health and safety, the person shall be required to remove and
replace such of like size at the person's cost. The location,
size, and species of any replacement landscaping shall be approved
by the City Engineer, unless the City Engineer approves an equivalent
monetary payment in lieu of replanting. In reviewing any permit application,
the City may require the applicant to directionally bore around or
otherwise avoid disturbance to any tree or landscaping, existing facility,
or other protected area in the rights-of-way.
H.
Responsible For Subcontractors. If excavation or facilities maintenance
is being done for the ROW user by another person, a subcontractor
or otherwise, the ROW user shall be responsible for ensuring that
the excavation or facilities maintenance of said person is performed
consistent with its permit and applicable law (including that the
contractor shall be properly licensed under the State of Missouri
and local ordinances) and shall be responsible for promptly correcting
acts or omissions by said persons.
I.
Exclusion Of Certain Locations/Facilities. Prior to its installation
of any facilities in the rights-of-way and after it provides the City
with its proposed plans for the facilities, the City may in its discretion,
and to the extent permitted by applicable law, designate certain locations
or facilities in the rights-of-way to be excluded from use by the
ROW user for its facilities, including, but not limited to, ornamental
or similar specially-designed street lights, or other facilities or
locations which, in the reasonable judgment of the City Engineer,
do not have electrical service adequate or appropriate for the ROW
user's facilities or cannot safely bear the weight or wind loading
thereof, or any other facility or location that in the reasonable
judgment of the City Engineer is incompatible with the proposed facilities
or would be rendered unsafe or unstable by the installation. The City
Engineer may further exclude certain other facilities that have been
designated or planned for other use or are not otherwise available
for use by the ROW user due to engineering, technological, proprietary,
legal, or other limitations or restrictions as may be reasonably determined
by the City. In the event such exclusions conflict with the reasonable
requirements of the ROW user, the City will cooperate in good faith
with the ROW user to attempt to find suitable alternatives, if available,
provided that the City shall not be required to incur financial cost
nor require the City to acquire new locations for the ROW user.
J.
Location, Type And Design Of Facilities Subject To Approval.
1.
Review Required. The design, location, and nature of all facilities
shall be subject to the review and approval of the City Engineer.
Such review shall be based on non-discriminatory bases in application
of City policy and approvals shall not be unreasonably withheld. City
height limitations, applicable zoning restrictions, and general City
policies with regard to all users of the rights-of-way shall be applicable
to all facilities. The City Engineer may establish regulations or
policies as may be deemed necessary or appropriate to affect this
Section.
2.
Underground And Collocation Of Facilities Required; Exceptions.
Except as provided herein or where prohibited by applicable law, no
person may erect, construct, or install facilities above the surface
of the rights-of-way without the written permission of the City based
on good cause established by applicant and found by the City. All
new fiber optics, coaxial, and similar cable facilities shall be located
within existing conduit, trenches, or other facilities to minimize
unnecessary use of rights-of-way space, reduce potential existing
or future interference and obstructions, and to reduce the cost to
the public or others therefrom, and to maximize the public's
ability to use and license appropriate private or public uses of the
rights-of-way in the public interest except where preempted by law
or where good cause is established and written permission granted
by the City. Such permission may be granted by the governing body
when other similar facilities exist above-ground and conditions are
such that underground construction is impossible, impractical, or
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, Where reasonable and
appropriate and where adequate public rights-of-way exists, the ROW
user shall place above-ground facilities underground in conjunction
with City capital improvement projects and/or at specific locations
requested by the City provided that such placement is practical, efficient,
and economically feasible. New utility poles and related ground mounted
equipment shall be permitted to be installed above ground; provided,
however, that to ensure unobstructed pedestrian use and City maintenance
of the ROW and minimize visual obstructions for vehicular traffic,
a new utility pole and any ground mounted equipment related to that
utility pole or the equipment thereon shall not be installed within
two hundred (200) feet of another utility pole or other ground mounted
equipment on the same side of the ROW. A replacement utility pole
that is installed in lieu of an existing utility pole and is installed
within ten (10) feet of the existing utility pole, shall not be considered
a new utility pole subject to the spacing requirements herein. Such
spacing regulations as applied to that specific site may be altered
by the governing body upon good cause shown by the Applicant including:
(1) when and where nearby utility poles exist that are spaced closer
than two hundred (200) feet apart; (2) when conditions are such that
no existing structure is available for placement of facilities; and
(3) the utility pole can be placed to be minimally visually intrusive.
3.
Wireless Antennas And Facilities. Pursuant to City authority,
including by Section 67.1830(f), RSMo., and the Uniform Small Wireless
Facility Deployment Act (Sections 67.5110, et seq., RSMo.), and
due to the limited space in the City's rights-of-way and in order
to minimize obstructions and interference with the use of the rights-of-way
and to ensure traffic safety, while also seeking to facilitate delivery
of broadband technologies to City residents and businesses, wireless
facilities shall be permitted in the rights-of-way in compliance with
the requirements applicable to other facilities and users in the rights-of-way,
and the additional requirements set forth in this Subsection.
a.
General Conditions. Any wireless facility in the ROW shall be subject to conditions relating to the location (including prohibited or limited locations), design, height appearance, safety, radio-frequency, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the City Engineer or governing body to address changing infrastructure, technology, and uses of the rights-of-way and/or City facilities. A wireless facility shall not be located or installed in a manner that results in interference with or impairs the operation of existing facilities or City or third-party attachments. Wireless antennas or facilities shall further comply with (1) all applicable requirements for installation of any facilities in the ROW as set forth in this Code including a permit, (2) the requirements of this Section, and (3) requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Sections 67.5090, et seq., RSMo.), Uniform Small Wireless Facility Deployment Act (Sections 67.5110, et seq., RSMo.), applicable zoning, building, and other regulations and approvals, specifically including Chapter 405.
b.
Specific Conditions.
(1)
Small Wireless Facilities. Any small wireless facility meeting the requirements for small wireless facility as defined by Section 405.440(B) and as provided in Section 405.440(E) of the Zoning Code shall be authorized to be located in the rights-of-way with approval of the City Engineer subject to the following additional requirements:
(a)
If proposing to install a new utility pole, compliance
with the spacing requirements herein;
(b)
Compliance with Section 67.5113.3(9), RSMo.,
to the satisfaction of the City;
(c)
For collocations on City utility poles, all make-ready
estimates for the utility pole, including replacement costs where
necessary for the safety and reliability of the utility pole, as determined
by the City;
(d)
Attestation that the proposed small wireless facility meets the volumetric requirements to meet the definition of a small wireless facility in Section 405.440(B) of the Zoning Code; and
(e)
Any other requirements which may be applicable
to the proposed small wireless facility pursuant to the Uniform Small
Wireless Facility Deployment Act (Sections 67.5110, et seq.,
RSMo.).
(2)
"Fast-Track" Small Wireless Collocation. Any wireless facility meeting the requirements of a "fast-track" small wireless facility as defined by Section 405.440(B), and as provided in Section 405.440(F) of the Zoning Code, may be authorized to be located in the rights-of-way with approval of the City Engineer subject to the following additional requirements:
(a)
Attestation that the proposed facilities meet the volumetric requirements to meet the definition of "fast-track" in Section 405.440(B) of the Zoning Code;
(b)
No ground equipment shall be authorized;
(c)
If the proposed structure the Applicant proposes
to locate its "fast-track" small wireless facility is not structurally
sound, but the City Engineer finds such to be a desired location,
the City Engineer can require the applicant to install a new substantially
similar structure at its cost; and
(d)
Compliance with the spacing requirements herein
if granted a waiver under the "fast-track" zoning procedure to install
a new structure.
(3)
All Other Wireless In ROW. Any wireless facility located on a utility pole or existing structure, as defined by Section 405.440(B), but not meeting the requirements of (1) Small Wireless Facilities, or (2) "Fast-Track" Small Wireless Collocation above, may be approved, subject to conditions as may be imposed consistent with the purposes of this Subsection, only upon approval by the governing body upon a determination by the governing body that such wireless facility is: (1) in the public interest to provide a needed service to persons within the City, (2) cannot feasibly meet all of the requirements of a "Small Wireless Facility," "Fast-Track," or otherwise, but varies from such requirements to the minimum extent necessary, (3) does not negatively impact appearance or property values in light of the location, design, and circumstances to be approved, (4) does not create any reasonable safety risk, and (5) complies with all zoning, ROW, and other applicable requirements.
(4)
Application Requirements. Any application including one (1) or more wireless antennas or facilities shall include all applicable and lawful requirements for: (1) installation of any facilities in the ROW as set forth in this Code; (2) the requirements of this Subsection; and (3) requirements for installation of wireless antennas and facilities set forth in the Uniform Wireless Communications Infrastructure Deployment Act (Section 67.5090, et. seq., RSMo.), Chapter 405, and other applicable law, including written proof of consent of the landowner and of the structure owner.
(5)
Wireless Facility Compensation. If the small wireless
facility or fast-track is to be located on a City-owned utility pole,
an annual payment of one hundred fifty dollars ($150.00) per attachment
shall be required.
K.
Notification, Joint Installation, And Collocation Requirements. ROW
users shall, prior to any excavation or installation within the rights-of-way,
provide sufficient notification and joint installation opportunity
on a shared-cost basis to potential users of the rights-of-way as
may be provided for by separate City policy. Such notification and
adopted policies shall be designed to maximize collocation of ROW
users, to minimize the disturbance to the rights-of-way, and maximize
its usable capacity. ROW users shall identify by mapping, as required
by the City Engineer, the location and specifications of all conduit
available or dedicated for collocation, to the extent not prohibited
by applicable law. Any person unreasonably failing to respond to collocation
opportunities or otherwise comply with this provision or policies
adopted hereunder shall, unless good cause is found by the City, be
precluded from use of the rights-of-way for a period of thirty (30)
months at such locations that would reasonably have been accommodated
by the collocation opportunity that was declined.
L.
Removal Of Facilities. To the extent permitted by applicable law,
upon expiration of an agreement, license, franchise, or other authorization
or by forfeiture or termination thereof, the ROW user shall remove,
at its sole cost, from public property any and all of its facilities
that are the subject of an agreement, license, franchise, or other
authorization within a reasonable time after such expiration or termination,
not to exceed ninety (90) days, and it shall be the duty of the ROW
user immediately upon such removal to restore the rights-of-way from
which the facilities are removed to as good condition as the same
were before the removal was effected and as required by the City.
Notwithstanding the foregoing, upon request of the ROW user, the City
may allow underground facilities to be left in place when it is not
practical or desirable to require removal.
M.
Relocation Of Facilities.
1.
Required By City. The ROW user shall promptly remove, relocate,
or adjust any facilities located in the rights-of-way as directed
by the City when such is required by public necessity, or public convenience
and security require it, or such other findings in the public interest
that may require relocation, adjustment, or removal at the cost of
the ROW user. Such removal, relocation, or adjustment shall be performed
by the ROW user within the timeframes established by the City and
at the ROW user's sole expense without any expense to the City,
its employees, agents, or authorized contractors and shall be specifically
subject to rules, regulations, and schedules of the City pertaining
to such. The ROW user shall proceed with relocations with due diligence
upon notice by the City to begin relocation and shall complete such
within the timeframe provided by the City.
2.
Emergency Exception. 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 in the rights-of-way prior
to taking such action, but the inability to do so shall not prevent
same. Thereafter, the City shall notify the person having facilities
in the rights-of-way as soon as practicable.
3.
Required By Third-Party. The ROW user shall upon request of
any other person requesting relocation of facilities and holding a
validly issued building or moving permit of the City, and within a
reasonable time and not less than forty-eight (48) hours prior to
the date upon which said person intends to exercise its rights under
said permit, thereupon temporarily raise, lower, or relocate its wires
or other facilities as may be required for the person to exercise
the rights under the permit, and the ROW user may require such permit
holder to make payment in advance for any expenses incurred, by said
ROW user pursuant to said person's request.
4.
Abandonment Exception. Rather than relocate facilities as requested or directed, a ROW user may abandon the facilities if approved by the City as provided in Section 610.010(D).
5.
ROW User Responsible For Damage. Any damages suffered by the
City, its agents, or its contractors to the extent caused by the ROW
user's failure to timely relocate, remove, or adjust its facilities,
or failure to properly relocate, remove, or adjust such facilities,
shall be borne by the ROW user. Where the ROW user shall fail to relocate
facilities as required by the City, the City may, but shall not be
required to, upon notice to the ROW user remove the obstructing facilities
with or without further delay and the ROW user shall bear all responsibility
and liability for the consequences therefrom, and the City shall bear
no responsibility to the ROW user or others for damage resulting from
such removal; provided that the ROW user has failed to relocate the
facilities within the timeframe required by the City.
6.
No Vested Rights. 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 in the rights-of-way shall be a vested
interest or property right.
N.
No Cause Of Action Against The City. The ROW user shall have no damages
remedy or recourse whatsoever against the City for any loss, cost,
expense, or damage arising from any of the provisions or requirements
of any agreement, franchise, license, or other authorization, or because
of the enforcement thereof by the City, or from use of the ROW. Nothing
herein shall preclude the ROW user from seeking injunctive or declaratory
judgment relief against the City where such relief is otherwise available
and the requirements therefor are otherwise satisfied; provided however,
that the validity of an executed agreement, license, franchise, or
other authorization shall not be subject to challenge.
O.
ROW User Responsible For Costs. The ROW user shall be responsible for all reasonable costs borne by the City that are directly associated with ROW user's installation, maintenance, repair, operation, use, and replacement of its facilities within the rights-of-way that are not otherwise accounted for as part of the permit fee established pursuant to the Section 610.040, to the extent permitted by applicable law. All such costs shall be itemized, and the City's books and records related to these costs shall be made available upon request to the ROW user.
P.
Insurance And Bonds.
1.
Insurance; Exceptions. Except as provided in this Section, each
ROW user shall provide, at its sole expense, and maintain during the
term of any ROW use agreement or franchise or anytime the ROW user
has facilities in the ROW, commercial general liability insurance
with a reputable, qualified, and financially sound company licensed
to do business in the State of Missouri, and unless otherwise approved
by the City, with a rating by Best of not less than "A," that shall
protect the ROW user, the City, and the City's officials, officers,
and employees, from claims which may arise from such use of the ROW,
whether such operations are by the ROW user, its officers, directors,
employees, and agents, or any contractors or subcontractors of the
ROW user. This liability insurance shall include, but shall not be
limited to, protection against claims arising from bodily and personal
injury and damage to property, resulting from all ROW user operations,
products, services, or use of automobiles or construction equipment.
The amount of insurance for single limit coverage applying to bodily
and personal injury and property damage shall be in no event less
than the individual and combined sovereign immunity limits established
by Section 537.610, RSMo., for political subdivisions; provided
that nothing herein shall be deemed to waive the City's sovereign
immunity. An endorsement which states that the City as an additional
insured with full and equivalent coverage as the insured under the
insured's policy and stating that the policy shall not be cancelled
or materially modified so as to be out of compliance with the requirements
of this Subsection, or not renewed without thirty (30) days'
advance written notice of such event being given to the City Engineer,
along with copies of the policy and other documentation, shall be
provided. If the person is self-insured, it shall provide the City
proof of compliance regarding its ability to self-insure and proof
of its ability to provide coverage in the above amounts. The City's
additional insured coverage shall have no deductible. The insurance
requirements in this Section or otherwise shall not apply to a ROW
user to the extent and for such period as the ROW user is exempted
from such requirements pursuant to Section 67.1830(6)(a), RSMo.,
and has on file with the City Clerk an affidavit certifying that ROW
user has twenty-five million dollars ($25,000,000.00) in net assets
and is otherwise therefore so exempted unless otherwise provided by
a ROW use agreement or franchise or the City determines such exemption
has not been adequately shown. Additionally, in accordance with Section 67.5121(3),
RSMo., a self-insured ROW user shall not be required to obtain insurance
naming the City as an additional insured solely to the extent such
ROW user is utilizing "Small Wireless Facilities," as defined in the
Uniform Small Wireless Facility Deployment Act, within the ROW. This
exception to the City's insurance requirements shall only apply
as related to such "Small Wireless Facilities" and shall not otherwise
alter the obligations of a ROW user to provide appropriate insurance
to the City for any other activities or operations. The City may waive
any and all requirements under this Subsection when deemed to be lawful
and in the public interest.
2.
Escrow Or Performance Bonds. The ROW user shall accompany a
permit application with an escrow or bond indicated herein.
a.
Bond Or Escrow Required.
(1)
Escrow. ROW user shall deposit a sum equal to that which would be required under the Subdivision Code (Chapter 410) for assurance of the completion of the ROW work. The escrow funds are meant to guarantee the restoration, maintenance, and or reconstruction of the ROW. The escrow shall be approved by the City Engineer and City Attorney and must remain in effect for forty-eight (48) months.
(2)
Bond. In lieu of a bond and as required by the City Engineer for ROW work which will result in more than minor disruption to the ROW, a ROW user shall establish in the City's favor a performance and maintenance bond in an amount to be determined by the City Engineer to guarantee the restoration of the rights-of-way as more fully provided in Section 610.045. The bond shall continue in full force and effect for a period of forty-eight (48) months following completion of the work.
|
The City Engineer may waive or modify this requirement when
the work involves, as determined in the sole discretion of the City
Engineer, no or only minor disruption or damage to the rights-of-way.
The City may waive any and all requirements under this Subsection
when deemed to be lawful and in the public interest.
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b.
Failure To Satisfactorily Complete Restoration. If a ROW user
fails to complete the restoration work in a safe, timely, and competent
manner as specified in this Code or if the completed restorative work
fails without remediation within the time period for the bond (as
determined by the City Engineer), 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 in or restoring the
rights-of-way, up to the full amount of the bond. The City may also
recover against the bond or escrow 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. If the bond or
escrow amount is not sufficient to pay the cost of restoration, the
ROW user shall be liable for the difference.
c.
Bond Terms. 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."
d.
Exceptions. In lieu of the bond required herein, the ROW user
may establish in the City's favor such other security as the
City Engineer 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).
The bond requirements in this Section or otherwise shall not apply
to a ROW user to the extent and for such period as the ROW user is
exempted from such requirements pursuant to Section 67.1830(6)(a),
RSMo., and has on file with the City Clerk an affidavit certifying
that ROW user has twenty-five million dollars ($25,000,000.00) in
net assets and is otherwise therefore so exempted, unless otherwise
provided by a ROW use agreement or franchise or the City determines
such exemption has not been adequately shown. Additionally, in accordance
with Section 67.5121(4), RSMo., the bonds required for "Small
Wireless Facilities," as defined in the Uniform Small Wireless Facility
Deployment Act, shall not exceed one thousand five hundred dollars
($1,500.00) per "Small Wireless Facility" or more seventy-five thousand
dollars ($75,000.00) for all "Small Wireless Facilities" within the
ROW of a ROW user. This exception to the City's bonding requirements
shall only apply as related to such "Small Wireless Facilities" and
shall not otherwise alter the obligations of a ROW user to provide
appropriate bonds to the City for any other activities or operations.
[Ord. No. 780, 3-18-2019]
A.
Open Excavations; Street-Plate Bridging. The ROW user shall not permit
an excavation within the ROW to remain open or facilities maintenance
actions to continue in the rights-of-way longer than is necessary
to complete the repair, installation or action, and in no event, may
an excavation or facilities maintenance remain open or continue beyond
the expiration of the excavation permit or any approved extension.
Unless otherwise approved by the City Engineer in writing, all excavations
shall be filled in or covered at the end of each working day. Street
plate bridging (SPB) to cover open excavations shall be authorized
subject to requirements contained in the standard specifications.
B.
Interference Control. The ROW user excavating in the rights-of-way
shall cause the excavation to be done with the least possible injury
to the pavement, sidewalk, curbing, parkway, or other surface and
shall place the materials from the excavation where they will cause
the least possible inconvenience to the public and permit the uninterrupted
passage of water along the gutters. The ROW user provides for the
flow of all watercourses, sewers or drains intercepted during the
ROW work and shall replace the same in as good condition as it found
them or shall make such provisions for them as the City Engineer may
direct. The ROW user shall make provision to take care of all surplus
water mud, muck silt, slicks, or other runoff from the ROW work and
shall be responsible for any damage resulting from failure to so provide.
The width of the excavation shall be no greater than is necessary
for doing the work.
C.
Erosion Control. Before new excavation or construction within the
ROW is commenced and until sodding, planting, concreting, paving,
or other final surfacing is in place, which will avoid washing or
spreading of dirt and mud onto other property, sidewalks, curbs, gutters,
streets, and the rights-of-way, the ROW user shall erect and maintain
approved temporary erosion control measures to prevent such washing
or spreading of materials. At the end of each day and as required
throughout the day during the course of excavating or construction,
dirt and mud on the sidewalks, curbs, gutters, streets, and the rights-of-way
resulting from work must be removed.
D.
Cleaning Up; Removing Mud From Vehicles. The person doing the excavating
or other ROW work under the requirements of this Code shall immediately,
after the work is completed and the refill is made, clean up and haul
away all surplus earth, rock, debris, or other rubbish. The ROW user
shall remove dirt from the wheels of all vehicles leaving any site
where mud has accumulated on the wheels before such vehicles enter
any public street of the City. It shall be unlawful for any ROW user
to permit any vehicles to leave such place with mud on the wheels
which is liable to be dispersed over any public street of the City
and it shall be unlawful for any driver of a vehicle to enter upon
the public streets of the City without having removed or had mud removed
from the wheels prior to such entry. Each occurrence shall be a separate
offense. The ROW user shall be responsible for damages to the City,
or its contractors, resulting from such failure and shall indemnify
the City and its contractors as provided herein and pay the costs
for remedying such failure.
E.
Spilling Materials Onto Rights-Of-Ways. The ROW User shall load materials
on any vehicle so no portion thereof shall be spilled or be liable
to be spilled on the streets of the City. It shall be unlawful for
any ROW user to permit any vehicle to enter upon the streets of the
City loaded in violation of this provision and it shall be unlawful
for any person to operate a vehicle on the streets of the City which
is loaded in such manner that it spills or is liable to spill mud,
dirt, or other materials on the streets.
F.
Hours Of Activity. Non-emergency excavations or facilities maintenance
effecting traffic on arterial and collector streets may not be performed
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. The ROW user shall
perform excavations or facilities maintenance on the rights-of-way
at such times that will allow the least interference with the normal
flow of traffic and the peace and quiet of the neighborhood, and shall
not work between the hours of 11:00 P.M. and 6:00 A.M.
G.
Methods Of Pavement Removal, Excavation, And Backfill. In addition
to the specifications established by the City Engineer, the person
making an excavation shall abide by the following conditions:
1.
All paving excavation restorations shall meet the specifications
established by the City Engineer. It shall be unlawful for any person
to make any backfill in any such excavation unless a duly authorized
inspector of the City is present to observe the work, and the backfill
is made in accordance with the standards established by the City Engineer.
It shall be unlawful for any ROW user to install any paving on any
ROW unless the provisions of this Section with respect to backfill
have been complied with.
2.
Whenever it is necessary to break through existing pavement
for excavation purposes, the pavement shall be removed to at least
six (6) inches beyond the outer limits of the subgrade that is to
be disturbed in order to prevent settlement, and a six-inch shoulder
of undisturbed material shall be provided on each side of the excavated
trench. The face of the remaining pavement shall be approximately
vertical. A power-driven concrete saw shall be used so as to permit
complete breakage of concrete pavement or base without ragged edges.
Asphalt paving shall be scored or otherwise cut in a straight line.
No pile driver may be used in breaking up the pavement.
3.
For cuts in concrete paved streets, concrete pavement replacement
shall be full slab length (joint-to-joint) and full slab width (curb
or gutter to street centerline) unless specifically authorized otherwise
by the City Engineer.
4.
Refill excavation with suitable unfrozen materials free from
trash, rubbish, vegetative and deleterious material, and/or rocks
over three (3) inches in maximum dimension, in layers not exceeding
eight (8) inches in depth and each layer shall be compacted thoroughly.
5.
Compaction shall meet or exceed the most current version of
the standards and conditions of the City and the ASTM International
(American Society for Testing and Materials). If inspections were
not requested or a valid excavation permit obtained, the City may
require compaction testing by a registered professional engineer licensed
in the State of Missouri at the ROW user's expense.
H.
Sidewalks — Curbs — Entrances.
1.
Unless otherwise authorized by the City Engineer and the Building Commissioner, the construction of sidewalks, curbs, and gutters shall meet the requirements and specifications of Sections 410.180(C) and 410.180(B)(3) of the Subdivision Code.
2.
Upon completion of plans and specifications, the City Engineer
shall file a copy with the governing body for its approval, modification
or amendment by resolution. Upon final approval by the governing body
copies shall be filed with the City Clerk. The City Engineer may recommend
changes, amendments, or alterations from time to time which shall
be affected by order or resolution of the governing body. Copies of
same shall be filed as hereinabove provided.
I.
Property Repair And Alterations.
1.
No Damage. During any 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 City Engineer and to his/her satisfaction.
2.
Alterations. 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 in the rights-of-way
shall be made at the sole cost and expense of the owner of such facilities.
J.
Specifications And Conditions For Work.
1.
Barricades And Safety Devices. The ROW user assumes the sole
responsibility for maintaining proper barricades, plates, safety fencing,
and/or lights as required from the time of opening of the ROW until
the excavation is surfaced and opened for travel. All excavations
and facilities maintenance that disturb traffic or pedestrian travel
shall be barricaded in such a manner as to protect both pedestrians
and vehicular traffic. Such excavations, facilities maintenance, and
barricades shall be lighted at night with danger signals in such a
manner that all traffic may be warned of the existence and location
of such excavations, facilities maintenance, and barricades. It shall
be unlawful for the ROW user to permit to remain unguarded at the
place of excavation or ROW work any machinery, equipment, or other
device posing a hazardous or safety risk.
2.
Traffic Control. Whenever there is an excavation or facilities
maintenance by the ROW user, the ROW user shall be responsible for
providing adequate traffic control to the surrounding area as determined
by the City Engineer. All traffic control devices shall be in compliance
with the current version of the standard specifications and the Manual
of Traffic Control Devices (MUTCD), unless otherwise agreed to by
the City. All surplus excavation materials, tools, or supplies at
the site of the excavation or facilities maintenance shall be barricaded
and lighted at night in the manner described in this Section. In the
event the excavation or facilities maintenance is not completed in
a reasonable period of time, the ROW user may be liable for actual
damages to the City for delay caused by the ROW user pursuant to this
Code.
3.
Specifications And Restoration. All work and maintenance shall
comply with all such specifications as may be established by the City
Engineer. The City Engineer shall prepare and have available for ROW
users a detailed set of specifications for backfilling and restoring
paving, which shall, as nearly as possible, conform to the standard
specifications of the St. Louis County Department of Highways and
Traffic. The ROW user shall restore the rights-of-way and surrounding
areas and shall comply with other reasonable conditions of the City
Engineer. Restoration of the rights-of-way shall be completed within
the dates specified in the permit unless the City Engineer issues
a waiver, extension, or a new or revised permit.
4.
Failure To Restore; Removal Of Substandard Work. If a ROW user
fails to restore the rights-of-way to its reasonable before condition
(including placement of sod to restore any grassy areas unless such
requirement is waived by the City Engineer in his/her sole discretion
based on area disturbed and weather conditions) within the date specified
either by the permit or any extension thereof as granted by the City
Engineer, the City may perform its own restoration. 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. The City may use the required performance bond
or escrow to repair the same, if necessary. If any portion of the
ROW is constructed contrary to the requirements herein, the City Engineer
may order the installed material removed unless the ROW user shall
cause bores or other tests, according to the requirements of the City
Engineer, which satisfy the City engineer that the work done is in
conformity with the applicable specifications. The ROW user shall
not be relieved of the obligation to complete the necessary rights-of-way
restoration and maintenance because of the existence of any performance
bond or escrow required by this Code.
5.
Inspection. When an excavation has been made in the ROW, and
after the same has been properly backfilled, the person making the
Excavation shall notify the City Engineer that the same is ready for
final repair. The City Engineer or his/her duly authorized agent shall
inspect the same. The judgment of the City Engineer or his/her authorized
agent as to when an excavation has been properly backfilled to permit
final repair shall be conclusive. If any person fails to contact the
City Engineer for an inspection within a reasonable time, as determined
by the excavation permit issued for the excavation, after completion
of the work, to ensure that the rights-of-way or other public place
has been restored to as good a condition as it was previous to such
excavation being made, the excavation shall not be deemed complete
and the ROW user shall be in violation of this Code.
6.
Notice Of Completion. The ROW user shall notify the City Engineer
upon completion of the excavation or facilities maintenance authorized
by the permit.
7.
Guarantee Of Work. Every ROW user in restoring the rights-of-way,
shall guarantee its work and shall maintain it for forty-eight (48)
months following its completion and in accordance with Section 67.1834,
RSMo. During the forty-eight (48) months, the ROW user shall, upon
notification from the City Engineer, correct all restoration work
to the extent necessary, using any method as reasonably required by
the City Engineer. Said work shall be completed within a reasonable
time, not to exceed thirty (30) calendar days, of the receipt of notice
from the City Engineer (not including days during which work cannot
be done because of circumstances constituting force majeure or days
when work is prohibited as unseasonable or unreasonable as reasonably
determined by the City Engineer). In the event the ROW user is required
to perform new restoration pursuant to the foregoing guarantee, the
City Engineer shall have the authority to extend the guarantee period
for such new restoration for up to an additional forty-eight (48)
months, or other greater period allowed by law, from the date of the
new restoration requirements. The guarantee period shall be applicable
to failure of the pavement surface as well as failure below the pavement
surface.
[Ord. No. 315 §§1 —
2, 3-19-2001; Ord. No.
780, 3-18-2019]
A.
Administration. The City shall be responsible for the continued administration
of this Code and any agreement, franchise, or other authorization
granted hereunder. The City may delegate this authority from time
to time in any manner consistent with applicable law, provided, however,
that the City shall not delegate enforcement authority.
B.
Appeals. The procedures of Article II of Chapter 400 shall govern appeals by any aggrieved person of a final action of any City Officer, employee, board, commission, or the governing body that are claimed by an aggrieved person to be unlawful or an unconstitutional taking of property without compensation. To the fullest extent permitted by law, the review procedures of Article II of Chapter 400 shall be exhausted before any action may be filed in any court against the City or its officers, employees, boards, officials or commissions. Nothing herein shall be deemed to unlawfully limit any remedy that is required to be available as a matter of law.
C.
Non-Enforcement By The City. A ROW user shall not be relieved of
its obligation to comply with any of the provisions of this Code or
its applicable agreement, franchise, or other authorization by reason
of any failure of the City to enforce prompt compliance.
D.
Penalties. Any person violating any provision of this Code shall be subject to penalty as provided by Section 100.140. The payment of such fine notwithstanding, all such violators shall be subject to all other applicable provisions of this Code to the fullest extent allowed by law, including, but not limited to, the payment of a use fee or franchise fee. In addition to all other remedies, any person who shall have installed facilities in the rights-of-way prior to the effective date of this Code, or hereinafter, without the consent of the City shall be subject to pay as a penalty to the City three (3) times the use fees calculated from the date of installation to the earlier of the effective date of a lawful use agreement, franchise, or other authorization with the City or the date the facilities are properly removed; provided, that if such person accurately discloses the facilities and obtains authority from the City within thirty (30) days of the effective date of this Code, such person may avoid this penalty by paying with the application the actual use fee amount calculated for such period, plus interest and other fees provided herein.
E.
Publication Of Notices. All public notices or ordinances required
to be published by law shall be published in the official newspaper
of the City. A ROW user shall be responsible for all costs of publication
that may be required with respect to its agreement franchise, or other
authorization any amendments thereto.
F.
Severability. If any Section of this Code or an agreement, franchise
or other authorization is held by a governmental authority of competent
jurisdiction to be invalid or unlawful as conflicting with applicable
laws now or hereafter in effect, or is held by a court or competent
governmental authority to be modified in any way in order to conform
to the requirements of any such applicable laws, such provision shall
be considered a separate, distinct, and independent part of the Code,
agreement, franchise or other authorization and, to the extent possible,
such holding shall not affect the validity and enforceability of all
other provisions therein.
G.
Reservation Of Rights. In addition to any rights specifically reserved
to the City by this Code the City reserves unto itself every right
and power which is required to be reserved by a provision of any ordinance
under any registration, permit, or other authorization granted under
this Code, and as may be authorized by Chapter 67, RSMo., and other
authority applicable to regulation of the use of the rights-of-way.
Notwithstanding anything to the contrary set forth herein, the provisions
of this Code shall not infringe upon the rights of any person pursuant
to any applicable State or Federal Statutes, including, but not limited
to any right that may exist to occupy the rights-of-way.
