[Ord. No. 604 §1(1), 5-8-2000]
This Chapter shall be known and may be cited as the "Rights-of-Way Usage Code".
[Ord. No. 604 §1(2), Glossary, 5-8-2000]
For the purposes of this Chapter, the following terms, phrases, words and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense and vice versa, words in the plural number include the singular number and vice versa, and the masculine gender includes the feminine gender and vice versa. The words "shall" and "will" are mandatory and "may" is permissive. Unless otherwise expressly stated or clearly contrary to the context, terms, phrases, words and abbreviations not defined herein shall be given the meaning set forth in Title 47 of the United States Code as amended and regulations issued pursuant thereto and, if not defined therein, their common and ordinary meaning. For convenience, some definitions from Title 47 of the U.S. Code are set forth in the glossary to this ordinance, which glossary may be revised by the City Attorney to reflect subsequent changes in Federal law without the need for an amendment of this ordinance. For further convenience, the first (1st) letter of terms, phrases, words and abbreviations defined in this Chapter or by Federal law have been capitalized, but an inadvertent failure to capitalize such letter shall not affect meaning.
- The specific Person apply for and receiving a permit for Facilities Work.
- That form which an Applicant must use to obtain a Permit to conduct Facilities Work within Public Rights-of-Way.
- BOARD OF ALDERMEN OR BOARD
- The Governing Body of the City.
- CABLE OPERATOR
- Person or group of Persons:
- CABLE SYSTEM
- 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 a community, but such term does not include:
- 1. A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations;
- 2. A facility that serves Subscribers without using any public right-of-way;
- 3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Subchapter II of Chapter 5 of Title 47 of the United States Code, except that such facility shall be considered a Cable System (other than for purposes of Section 541(c) of Title 47 of the United States Code) 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;
- 4. An open video system that complies with Section 653 of the Telecommunications Act of 1996; or
- 5. Any facilities of any electric utility used solely for operating its electric utility system.
- The City of Oakland, Missouri, and its agencies, departments, agents and employees acting within their respective areas of authority.
- CITY ENGINEER
- The City Engineer or his/her designee.
- COMMON CARRIER
- Any person engaged as a common carrier for hire, in interstate or foreign communications by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this Chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.
- CUSTOMER PREMISES EQUIPMENT
- Equipment employed on the premises of a person (other than a carrier) to originate, route or terminate telecommunications.
- The Federal Communications Commission, its designee or any successor governmental entity thereto.
- Any conduit, valves, meters, duct, line, pipe, wire, hose, manhole, pullbox, fiber optic cable, cable, culvert, pole, receiver, transmitter, satellite dish, micro cell, Pico cell, repeater, amplifier or other device, material, apparatus or medium usable (whether actually used for such purpose or not) for the transmission or distribution of any service or commodity installed below or above ground within the Public Rights-of-Way of the City, whether used privately or made available to the public.
- FACILITIES WORK
- The installation of any item whatsoever, including, but not limited to Telecommunications Facilities or any change, replacement, relocation, removal, alteration or repair of any existing item or Telecommunications Facilities within the Public Rights-of-Way.
- GROSS REVENUES
- Any and all cash, credits, property or other consideration of any kind or nature received directly or indirectly arising from, attributable to or in any way derived from the retail operation of Facilities or the provision of Retail Services within the City. "Gross Revenues" include, by way of illustration and not limitation, monthly fees for any service; installation, disconnection, reconnection and change-in-service fee; rents; late fees and processing fees; fees or payments received for carriage of information; revenues from rentals or sales of equipment and advertising revenues. "Gross Revenues" shall not include any rents hereunder or any taxes on services which are imposed directly on any Subscriber by the United States, the State of Missouri, the City or other governmental unit and which are collected on behalf of said governmental unit. "Gross Revenues" shall not include wholesale revenues (i.e., revenues from sales for resale of services) or any proceeds from the transfer of Facilities to another registered service provider. For Telecommunications Carriers, the term "Gross Revenues" shall not include revenues for goods and services which are not provided over Telecommunications Facilities, even if such goods and services are ordered using the Facilities. In the event a person receives revenues for operations within and without the City of which no specific portion can be attributed to operations in the City, "Gross Revenues" with respect to such revenues shall mean the portion thereof derived by multiplying such revenues by a fraction, the numerator of which is the number of Subscribers in the City and the denominator of which is the total number of Subscribers in the area generating such revenues.
- NORMAL BUSINESS HOURS
- 8:00 A.M. to 5:00 P.M. Monday through Friday.
- A permit granted by the City to do Facilities Work.
- An individual, partnership, limited liability corporation or partnership, association, joint stock company, trust, organization, corporation or other entity or any lawful successor or thereto or transferee thereof but such term does not include the City.
- The Missouri Public Service Commission.
- PUBLIC EDUCATION OR GOVERNMENTAL ACCESS FACILITIES
- PUBLIC RIGHTS-OF-WAY
- The surface, the air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement or similar property in which the City now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purposes of installing and maintaining any item including, but not limited to, Facilities. No reference herein to "Public Rights-of-Way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for Telecommunications purposes.
- RADIO COMMUNICATION
- The transmission by radio of writing signs, signals, pictures and sounds of all kinds, including all instrumentalities, facilities, apparatus and services (among other things, the receipt, forwarding and delivery of communications) incidental to such transmission.
- RETAIL SERVICES
- The offering of any service for a fee directly to the public or to classes of users as to be effectively available directly to the public, regardless of the facilities used.
- Any sale, exchange or barter transaction.
- Any Person who legally receives any retail service and the City in its capacity as a recipient of such service.
- The transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or control of the information as sent and received.
- TELECOMMUNICATIONS CARRIER
- Any provider of telecommunications services, except that such term does not include aggregators of telecommunications services.
- TELECOMMUNICATIONS EQUIPMENT
- Equipment, other than customer premises equipment, used by a carrier to provide telecommunications services and includes software integral to such equipment (including upgrades).
- TELECOMMUNICATIONS SERVICE
- The offering of Telecommunications for a fee directly to the public or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
- VIDEO PROGRAMMING
- Programming provided by, or generally considered comparable to programming provided by a television broadcast station.
- In, along, under, over or across any Public Way.
[Ord. No. 604 §1(3), 5-8-2000]
Except as otherwise provided in this paragraph, no Person may construct, operate, maintain or provide any service over Within the Public Rights-of-Way of the City without registering hereunder. To be eligible to register hereunder, a Person who provides Telecommunications Services must be a Telecommunications Carrier with all required State and Federal authority to provide the Telecommunications Services to be provided in the City or over Facilities Within the Public Rights-of-Way of the City.
Any Person that has a Cable Franchise from the City under the Cable Communications Regulatory Code need not register hereunder so long as that Person does not also meet the criteria of Section (A)(1). If such a Person must register hereunder, it shall also remain subject to its Cable Franchise and the Cable Communications Regulatory Code except to the extent, if any, it conflicts with the provisions herein.
Any Person that intends to provide Video Programming by means of an open video system pursuant to certification approved by the FCC must register hereunder but shall also remain subject to the applicable provisions of the Cable Communications Regulatory Code except to the extent, if any, it conflicts with the provisions herein.
Any Person that provides Telecommunications Services within the City or has Facilities or provides Telecommunications Services over Facilities Within the Public Rights-of-Way of the City as of the effective date of this Chapter must either register within ninety (90) days thereafter or remove such Facilities. Other Persons must register before providing Telecommunications Services within the City or constructing, operating or maintaining Facilities or providing Telecommunications Services over Facilities Within the Public Rights-of-Way of the City.
Any Person that wants to construct, operate or maintain what would otherwise be Facilities Within the Public Rights-of-Way of the City, except that such facilities will be reserved exclusively for that Person's own use rather than made available to others, must first obtain a written license agreement from the City, subject to such terms and conditions as the City may reasonably impose under the circumstances, unless that Person is already otherwise registered hereunder or has another form of written agreement with the City in effect that expressly authorizes such activity.
Effectiveness Of Registration. Registration hereunder by an eligible Person shall remain effective for so long as that Person remains eligible, unless terminated by the Person or the City hereunder. Any registration of an ineligible Person shall be void from the date of ineligibility.
A valid registration hereunder authorizes the issuance of specific Facilities Work Permits in accordance with this Chapter. It does not expressly or implicitly authorize Facilities Work without a Permit or work on private property without owner consent through eminent domain or otherwise (except for use of compatible easements pursuant to Federal law) or to use publicly or privately owned Facilities without a separate agreement with the owners.
A valid registration hereunder shall not eliminate the need to obtain any franchise, license or permit for the privilege of transacting and carrying on a business within the City as generally required by the ordinances and laws of the City other than this Chapter or for attaching devices to poles or other structures, whether owned by the City or other Person.
A valid registration grants no exclusive or vested rights.
The right to obtain Facilities Work Permits shall be subordinate to any prior lawful occupancy of the Public Rights-of-Way and the City reserves the right to reasonably designate where Facilities are to be placed Within the Public Rights-of-Way.
Registered Person Subject To Other Laws, Police Power.
A Person required to register shall at all times be subject to and shall comply with all applicable Federal, State and local laws, including this Chapter and shall at all times be subject to all lawful exercise of the Police power of the City including, but not limited to, all powers regarding zoning, supervision of construction, assurance of equal employment opportunities, control of Public Rights-of-Way and consumer protection.
No course of dealing between a Person required to register hereunder and the City or any delay on the part of the City in exercising any rights hereunder, shall operate as a waiver of any such rights of the City or acquiescence in the actions of such Person in contravention of such rights except to the extent expressly waived in writing.
Interpretation Of Chapter. The provisions of this Chapter shall be liberally construed to promote the public interest.
Failure To Register. Any Person who provides Retail Services within the City or who constructs, operates, maintains or provides Retail Services over Facilities Within the Public Rights-of-Way of the City and who has not registered hereunder shall nonetheless be subject to all requirements of this Chapter, including, but not limited to, its provisions regarding construction and technical standards and rental fees. In its discretion, the City at any time may by ordinance; require such Person to register within thirty (30) days of receipt of a written notice to such Person from the City that registration is required; require such Person to remove its Facilities from the Public Rights-of-Way and restore the affected area to a condition satisfactory to the City within a specific time period; direct municipal personnel to remove the Facilities from the Public Rights-of-Way and restore the affected area to a condition satisfactory to the City and charge the Person the costs therefor, including by placing a lien on the Person's property as provided in connection with abating nuisances; or take any other action it is entitled to take under applicable law. Additionally, such Person shall be subject to the imposition of penalties as provided herein.
Expense. Any act that a Person is or may be required to perform under this Chapter or applicable law shall be performed at the Person's expense without reimbursement by the City, unless expressly provided to the contrary in this Chapter or applicable law.
Eminent Domain. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the City's power of eminent domain.
Exclusive Contracts And Anticompetitive Acts Prohibited.
No Person shall enter into or enforce an exclusive contract for the provision of Telecommunications Services with any other Person, or demand the exclusive right to serve another Person or location, as a condition of extending service to that Person or location or any other Person or location.
No Person shall engage in acts that have the purpose or effect of limiting competition for the provision of Telecommunications Services in the City, except for such actions as are expressly authorized by law.
[Ord. No. 604 §1(4), 5-8-2000]
Registration shall be accomplished in the form of a letter to the City filed with the City Clerk.
To be valid, the registration letter must be signed by an authorized representative of the registering Person. It must be accompanied by the required filing fees and contain or be accompanied by all required information. It shall include the name, title, address, telephone number and fax number of individual(s) authorized to serve as the point of contact between the City and the registering Person so as to make contact possible at any time (i.e., twenty-four (24) hours per day, seven (7) days per week).
At any time the City determines a registration letter does not comply with this Code, the City may return it to a point of contact identified therein, with a written explanation of the reason(s) for such return. Filing fees shall not be refunded because of the cost of processing the letter. Failure to return a registration letter shall not validate an incomplete or otherwise invalid or void registration letter.
Contents Of Registration Letter. A registration letter shall contain or be accompanied by, at a minimum, the following information:
Name and address of the registering Person.
Explanation of all Retail Services to be provided by the registering Person in the City or over Facilities Within the Public Rights-of-Way of the City and an explanation of the registering Person's legal qualifications to provide all such Retail Services, including copies of supporting documentation such as relevant certificates or orders from the FCC and/or PSC or pertinent rules or statutes.
Name and address of any and all other Persons that will be providing Retail Services over the registering Person's Facilities in the City.
Current certificates of insurance in accordance with this Chapter.
Notice Of Change. A registered Person shall promptly (no less frequently than semi-annually) notify the City of any changes in the information set forth in or accompanying its registration letter. Such change notices shall be submitted and processed in the same manner as an initial registration.
Filing Fees. A registration letter or change notice shall be accompanied by a filing fee in the amount of fifty dollars ($50.00) to cover the City's internal administrative costs.
Registration Index. The City Clerk shall maintain an index of all registered Persons and their point(s) of contact.
[Ord. No. 604 §1(5), 5-8-2000]
All Facilities Within the Public Rights-of-Way shall be constructed, operated, used and maintained subject to the supervision of all of the authorities of the City who have jurisdiction in such matters and in compliance with all applicable laws, ordinances, departmental rules and regulations.
All Telecommunication Facilities Within Public Rights-of-Way shall be subject to inspection by the City.
Any Person desiring to conduct Facilities Work Within the Public Rights-of-Way must first apply for and obtain a Permit, in addition to any other building permit, license, easement, Franchise or authorization required by law, provided that if such Facilities Work must be performed on an emergency basis, the Person conducting the work may apply for the required Permit on the first (1st) business day following the commencement of the Facilities Work.
No Person may be granted a Permit who shall not have registered with the City, except as otherwise provided by ordinance or written contract with the City.
All Applications for Permits shall be submitted to the City Engineer. The City Engineer shall design and make available standard forms for such Applications, requiring such information as the City Engineer determines in his/her discretion to be necessary, consistent with the provisions of this Chapter, to accomplish the purposes of this Chapter.
Each such Application shall be accompanied by an application fee in the amount of twenty-five dollars ($25.00) ("base fee") plus fifteen dollars ($15.00) per one hundred (100) linear feet of Public Rights-of-Way involved and an additional fifteen dollars ($15.00) per road crossing ("variable fee") to cover the cost of processing the Application.
The City Engineer shall review each Application for a Permit and, upon determining that the Applicant has all requisite authority to perform the desired Facilities Work including full compliance with this Chapter and that the Applicant has submitted all necessary information and has paid the application fee, shall issue the Permit, except as provided in Section 535.050 hereof entitled "Construction Provisions". In order to avoid excessive processing and accounting costs to either the City or the Applicant, the City Engineer shall have authority to establish procedures for bulk processing of Applications and periodic payment of fees.
It is the intention of the City that disruption of the Public Rights-of-Way should be minimized. Upon receipt of an Application for a Permit, the City Engineer shall do the following:
Determine whether the proposed Facilities Work will disrupt any portion of the Public Rights-of-Way and whether the disruption will be more than minor in nature. If the Applicant can show to the City Engineer's reasonable satisfaction that the Facilities Work involves any of the following:
For circumstances where the City Engineer determines that the Public Rights-of-Way will be disrupted and no exemption under (a) or any other provision of this Section applies, the City Engineer shall, where necessary, schedule and coordinate work to accomplish the goals of this Section. Due regard shall be accorded Applicants that are required by any law, rule or regulation to provide service to the area defined in the Application. By way of example, the City Engineer may postpone issuance of a Permit, give public notice of the Application and attempt to identify whether other Person(s) intend to do Facilities Work in the same area within a reasonable period of time so that all such Facilities Work can be coordinated.
Each Permit shall include projected commencement and termination dates or, if such dates are unknown at the time the Permit is issued, a provision requiring the Permit holder to provide the City Engineer with reasonable advance notice of such dates once they are determined; length of affected Public Rights-of-Way; number of road crossings; information regarding scheduling and coordination of Facilities Work, if necessary; and location of Facilities. The City Engineer shall establish procedures allowing Applicants to ascertain whether capacity may be available from others along the intended path, including the City.
The City Engineer shall include in Permits such conditions and requirements as are reasonably necessary to protect structures and other Facilities in the Public Rights-of-Way from damage and for the proper restoration of such Public Rights-of-Way, structures and Facilities and for the protection of the public and the continuity of pedestrian and vehicular traffic.
Facilities Work shall be subject to periodic inspection by the City.
The City Engineer shall have full access to all portions of Facilities Work and may issue stop work orders and corrective orders to prevent unauthorized work. Such corrective or stop work orders shall state that work not authorized by the Permit is being carried out, summarize the unauthorized work and provide a period of not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety and may be delivered personally or by certified mail to the address listed on the Application for Permit or to the Person in charge of the construction site at the time of delivery or the registered Person's point of contact. Such orders may be enforced by equitable action in the Circuit Court of St. Louis County, Missouri, and in such case the Person involved in the Facilities Work shall be liable for all costs and expenses incurred by the City, including reasonable attorney's fees, in enforcing such orders, in addition to any and all penalties established in this Chapter.
Applicants may appeal any final decision of the City Engineer to the Board of Adjustment.
The City Engineer shall maintain indexes of all Permits issued both by Person and by affected Public Rights-of-Way.
The construction, operation, use and maintenance of Facilities Within the Public Rights-of-Way shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970, the National Electrical Safety Code, Obstruction Marking and Lighting, Federal Aviation Administration; Construction, Marking and Lighting of Antenna Structures, Federal Communications Commission Rules Part 17; other Federal, State or local laws and regulations that may apply including, without limitation, local zoning and construction codes and laws and accepted industry practices, all as hereafter may be amended or adopted. In the event of a conflict among codes and standards, the most stringent code or standard shall apply (except insofar as that code or standard, if followed, would result in Facilities that could not meet requirements of Federal, State or local law).
All Facilities shall be installed and located to cause minimum interference with the rights and convenience of property owners and other users of the Public Rights-of-Way, including the City.
All Facilities shall be of good and durable quality.
Without limiting the foregoing, antennae and their supporting structures (towers) shall be designed in accordance with the Uniform Building Code and Electronics Industry Association RS-22A Specifications, as amended, and shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable Federal, State or local laws, codes and regulations, all as hereafter may be amended or adopted.
Without limiting the foregoing, all Facilities shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced and properly trained maintenance and construction personnel so as not to endanger any Person or property or to unreasonably interfere in any manner with the Public Rights-of-Ways or legal rights of any property owner including the City or unnecessarily hinder or obstruct pedestrian or vehicular traffic.
All safety practices required by law shall be used during construction, maintenance and repair of Facilities, including commonly accepted methods and devices to prevent failures and accidents that are likely to cause damage, injury or nuisance to the public.
Facilities shall not be placed where they will interfere with other utility facilities or obstruct or hinder in any manner the various utilities serving the residents and businesses in the City of their use of any Public Rights-of-Way.
Any and all Public Rights-of-Way, public property or private property disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or construction of Facilities shall be repaired or replaced by the owner thereof within a reasonable time specified by the City.
A Person required to be registered hereunder shall, by a reasonable time specified by the City, protect, support, temporarily disconnect, relocate or remove discrete portions of its Facilities when required by the City by reason of traffic conditions; public safety; Public Rights-of-Way construction; Public Rights-of Way maintenance or repair (including resurfacing or widening); change of Public Rights-of-Way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks or any type of government-owned communications system, public work or improvement or any government-owned utility, Public Rights-of-Way vacation; or for any other purpose where the convenience of the City would be reasonably served thereby; provided however, that the Person may abandon any Facilities in place if approved by the City in writing and, provided further, that the Person shall not be required to make permanent changes in its Facilities to accommodate the installation of other Facilities nor should it be required to make temporary changes solely to disrupt its business or otherwise provide an unfair advantage to a competitor. No action hereunder shall be deemed a taking of property and the Person shall not be entitled to any compensation therefor. No location of any Facilities Within the Public Rights-of-Way shall be a vested interest.
If any action under the preceding paragraph is reasonably required to accommodate the construction, operation or repair of the Facilities of another Person that is authorized to use the Public Rights-of-Way, a Person required to registered hereunder shall, after reasonable advance written notice, take action to effect the necessary changes requested. Such Person shall be reimbursed by such other Person for costs reasonably incurred in taking such action. The Board of Aldermen may resolve disputes as to responsibility for costs associated with the removal, relaying or relocation of Facilities as among Persons authorized to install facilities Within the Public Rights-of-Way if the parties are unable to do so themselves and if the matter is not governed by a valid contract between the parties.
In the event of an emergency or where Facilities create or are contributing to an imminent danger to health, safety or property, the City may remove, relay or relocate the pertinent parts of such Facilities without prior notice and without charge to the City for restoration and repair.
A Person required to register hereunder shall on the request of the City or any Person authorized by the City, temporarily relocate Facilities to permit the moving of buildings or oversized vehicles. The expense of such temporary relocation shall be paid by the Person requesting same and the Person relocating Facilities shall have the authority to require such payment in advance, except in the case where the request is made by the City on its own behalf in which case no such payment shall be required. A Person shall be given not less than forty-eight (48) hours' advance notice to arrange for such temporary changes unless the Board of Aldermen has declared an emergency.
A Person registered hereunder shall have the authority to trim trees that overhang Public Rights-of-Way of the City so as to prevent the branches of such trees from coming in contact with its Facilities, at its own expense subject to the supervision and direction of the City. Trimming of trees on private property shall require written permission of the property owner. All cut materials shall be properly disposed.
During installation of Facilities, existing underground conduits or overhead Facilities shall be used whenever feasible and permitted by the owner thereof. No one may erect new poles or similar structures Within the Public Rights-of-Way without the express written permission of the Board of Aldermen.
Facilities may be constructed overhead where other existing Telecommunications Facilities are overhead, but where no overhead Facilities exist, all Facilities shall be constructed underground. At the Board of Aldermen's direction, all Facilities shall be moved underground and the cost shall be solely the obligation of the owners. In cases of new construction or property development where Facilities are to be placed underground, the developer or property owner shall give to all Persons registered hereunder reasonable written advance notice of the particular date on which open trenching will be available for installation of Facilities. Costs of trenching and easements required to bring Facilities within the development shall be borne by the developer or property owner; except that if the Facilities are not installed within five (5) working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then once the trenches are thereafter closed, the cost of new trenching shall be borne by the Person installing the Facilities.
The City shall have the right to install and maintain free of charge upon any Facilities Within Public Rights-of-Way any Facilities of its own that do not unreasonably interfere with the operations of the other Facilities.
Any contractor or subcontractor used for work or construction, installation, operation, maintenance or repair of Facilities must be properly licensed under laws of the State and all applicable local ordinances and each contractor or subcontractor shall have the same obligations with respect to its work as a registered Person would have if the work were performed by it. A registered Person must ensure that contractors, subcontractors and all employees who will perform work for it are trained and experienced and shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor and shall implement a quality control program to ensure that the work is properly performed.
Upon failure of a Person to commence, pursue or complete any work required by law or by the provisions of this Chapter to be done in any street, within the time prescribed and to the reasonable satisfaction of the City, the City may, at its option, after thirty (30) days' notice, cause such work to be done and the Person shall pay to the City the cost thereof in the itemized amounts reported by the City to the Person within thirty (30) days after receipt of such itemized report.
No Person shall make paving cuts or curb cuts except after written permission has been given by the City, which permission shall not unreasonably be withheld.
Should the grades or boundaries of the Public Rights-of-Way be changed at any time, a Person required to register hereunder shall, if necessary, at its own cost and expense, relocate or change its Facilities so as to conform with the new grades or boundaries.
Any alteration to the existing water mains, sewerage or drainage system or to any City, State or other public structures or facilities in the Public Rights-of-Way required on account of the construction or installation of Facilities Within the Public Rights-of-Way shall be made at the sole cost and expense of the owner of such Facilities. During any work of constructing, operating or maintaining of Facilities, the owner shall also, at its own cost and expense, protect any and all existing structures and property belonging to the City and any other Person.
Interference With Public Projects. Nothing in this Chapter shall be in preference or hindrance to the right of the City and any board, authority, commission or public service corporation of the City to perform or carry on any public works or public improvements of any description.
[Ord. No. 604 §1(6), 5-8-2000]
Subject to the provisions herein, the City shall have the right to inspect and copy at any time during Normal Business Hours at a location in the metropolitan St. Louis area all books and records which are reasonably necessary to monitor compliance with the terms of this Chapter, including, but not limited to, a full and complete set of plans, records and "as built" maps showing the exact location of all Facilities installed or in use in the City and records showing plans and timetables for any pending construction regarding Facilities in the City. A Person required to register hereunder is responsible for collecting the information and producing it and by registering it affirms that it can and will do so. Such Person will make suitable copying equipment available to the City and will bear the cost of such copying.
A Person required to register hereunder shall maintain sufficient financial records governing its operations in the City to determine Gross Revenues and to otherwise document accurate payment of rental fees under Section 535.070 hereof.
All such information received by the City shall remain confidential insofar as permitted by the Missouri Open Meetings Law and other applicable State and Federal law.
The Board of Aldermen may require provision or retention of additional information, records and documents from time to time as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City in connection with this Chapter.
Voluminous Materials. If any books, records, maps or plans or other requested documents are too voluminous or for security reasons cannot be moved, then the Person may request that the inspection take place at some other location outside the metropolitan St. Louis area, provided that such Person must pay all reasonable travel expenses incurred by the City in inspecting those documents or having those documents inspected by its designee(s).
[Ord. No. 604 §1(7), 5-8-2000]
Finding. The City finds that Public Rights-of-Way of the City are valuable public property right acquired and maintained by the City at great expense to taxpayers. The City further finds that the grant of permission to use Public Rights-of-Way is a valuable property right and eliminates the need to invest substantial capital. Any Person that places Facilities Within the Public Rights-of-Way after the effective date of this Chapter and any Person that leaves existing Facilities Within the Public Rights-of-Way more than ninety (90) days after the effective date of this Chapter shall be deemed to have agreed to pay compensation for such use of the Public Rights-of-Way as established by this Chapter.
Payment To City. As compensation for use of the Public Rights-of-Way, any Person with Facilities Within the Public Rights-of-Way of the City or providing Telecommunications Services over such Facilities shall pay to the City on a quarterly basis rental fees in the amount of five percent (5%) of the Person's Gross Revenues or one hundred fifty dollars ($150.00) per quarter (whichever is greater).
Not A Tax Or In Lieu Of Any Other Tax Or Fee.
The rental fees are not a tax, license or fee subject to any requirement of voter approval; but rather are a charge for special and individualized use of public property.
Rental fees are in addition to all other fees and all taxes and payments that a Person may be required to pay under any Federal, State or local law, including any applicable property and amusement taxes. However, to promote economic development, the City hereby grants a tax credit for all rental fees paid to the City hereunder against any local telephone or telecommunications license or franchise tax up to the amount of such tax(es). In no event shall such a credit result in a refund from the City.
The rental fees shall be paid quarterly to the City and shall commence as of the later of the effective date of this Chapter or the first (1st) day in which a Person places Telecommunications Facilities Within the Public Rights-of-Way or provides Telecommunications Services over such Facilities. The City shall be furnished at the time of each payment with a statement certified by the payor's chief financial officer or an independent certified public accountant reflecting the total amount of Gross Revenues for the payment period. Payments shall be made to the City no later than thirty (30) days following the end of each calendar quarter.
In the event any rental fee or other payment due is not made on or before the date specified herein, interest charges shall also be due, computed from such due date, at an annual rate equal to the commercial prime interest rate of the City's primary depository bank during the period such unpaid amount is owed, plus a penalty of two percent (2%) of the amount.
No Accord Or Satisfaction. No acceptance of any payment by the City shall be construed as a release or an accord and satisfaction of any claim the City may have for further or additional sums payable as rental fees under this Chapter or for the performance of any other obligation.
Audit. The City shall have the right to inspect all reasonably necessary records and the right to audit and to recompute any amounts determined to be payable under this Chapter. Persons required to register hereunder shall be responsible for providing the records to the City at an office located within the metropolitan St. Louis area except as provided in Section 535.060. Such records shall be maintained for at least five (5) years. The City's audit expenses shall be borne by the Person audited if the rental fees paid during the audit period are less than ninety-eight percent (98%) of the amount owed according to the audit. Any additional amounts due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the Person by the City of the underpayment, which notice shall include a copy of the audit report. If recomputation results in additional amount to be paid to the City, such amount shall be subject to interest and penalties as specified in Subsection(D)(2) above.
[Ord. No. 604 §1(8), 5-8-2000]
Insurance Required. A Person required to register hereunder shall maintain and by its registration specifically agrees that it will maintain for so long as it has Facilities Within the Public Rights-of-Way of the City at least the following liability insurance coverage insuring the City and the Person: Worker's Compensation and employer liability insurance to meet all requirements of Missouri law and comprehensive general liability insurance with respect to the construction, operation and maintenance of the Facilities and the conduct of the Person's business in the City in the minimum amounts of:
Two million dollars ($2,000,000.00) for property damage resulting from any one (1) accident;
Five million dollars ($5,000,000.00) for personal bodily injury or death resulting from any one (1) accident; and
Three million dollars ($3,000,00.00) for all other types of liability.
These insurance requirements shall not be construed to limit the liability of a Person.
Qualifications Of Sureties. All insurance policies shall be with sureties qualified to do business in the State of Missouri with a B+7 or better rating of insurance by Best's Key Rating Guide, Property/Casualty Edition and in a form approved by the City.
Policies Available For Review. All insurance policies shall be available for review by the City and a Person shall keep on file with the City current certificates of insurance.
Additional Insureds — Prior Notice Of Policy Cancellation. All general liability insurance policies shall name the City, its officers, boards, board members, commissions, Commissioners, agents and employees as additional insureds and shall further provide that any cancellation or reduction in coverage shall not be effective unless thirty (30) days' prior written notice thereof has been given to the City Clerk. A Person shall not cancel any required insurance policy without submission of proof that it has obtained alternative insurance which complies with this Chapter.
By its registration, a Person agrees that it shall, at its sole cost and expense, indemnify, hold harmless and defend the City, its officials, boards, board members, commissions, Commissioners, agents and employees against any and all claims, suits, causes of action, proceedings and judgments for damages or equitable relief arising out of the construction, maintenance or operation of its Facilities; copyright infringements or a failure by the Person to secure consents from the owners, authorized distributors or licensees of information to be delivered over the Facilities; or the conduct of the Person's business in the City.
Specifically, but not by way of limitation on the scope of (1) above, by its registration a Person agrees that it shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City and in their capacity as such the officers, agents and employees thereof from and against any and all claims, suits, actions, liability and judgments for damages arising out of or alleged to arise out of the installation, construction, operation or maintenance of its Facilities including, but not limited to, any claim for invasion of the right of privacy, defamation of any Person or the violation or infringement of any copyright, trade mark, trade name, service mark or patent or of any other similar right of any other Person.
The foregoing indemnity provisions include, but are not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or proceeding prior to the Person assuming such defense. The City shall notify a Person of claims and suits as soon as practicable, but failure to give such notice shall not relieve a Person of its obligations hereunder. Once a Person assumes such defense, the City may at its option continue to participate in the defense at its own expense.
Notwithstanding anything to the contrary contained in this Chapter, the City shall not be so indemnified or reimbursed in relation to any amounts attributable to the City's own negligence, willful misconduct, intentional or criminal acts.
[Ord. No. 755 §3, 5-12-2008]
A business license tax of two percent (2%) of the gross annual revenue produced by the billboard was approved by the qualified voters of Oakland, Missouri, at the primary election held in the City on Tuesday, the fifth (5th) day of August, 2008, to be effective for the license year ending in 2009.
[Ord. No. 604 §1(9), 5-8-2000]
Prior to any Facility Work Within the Public Rights-of-Way, a person shall establish in the City's favor a performance bond to ensure faithful performance of the construction or other work. The amount of such performance bond shall be equal to ten percent (10%) of the total cost of the work.
In the event a Person subject to such a performance bond fails to complete the Facility Work Within the Public Rights-of-Way in a safe, timely and competent manner, 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 Person or the cost of completing work Within the Public Rights-of-Way, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against a security fund or letter of credit where such amount exceeds that available under a security fund or letter of credit.
Upon satisfactory completion of Facility Work Within the Public Rights-of-Way the City shall return the bond.
The performance bond shall be issued by a surety with a B+7 or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the City Attorney; and shall contain the following endorsement:
"This bond may not be canceled or allowed to lapse until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."
Termination Of Registration.
The City shall have the right to terminate a registration for a substantial and ongoing failure to comply with this Chapter or for defrauding or attempting to defraud the City. To invoke the provisions of this Section, the Board of Aldermen shall give the Person written notice of such intent. If within thirty (30) calendar days following such written notice from the City the Person has not completed corrective action or corrective action is not being actively and expeditiously pursued to the satisfaction of the Board of Aldermen, the Board of Aldermen may give written notice to the Person of its decision to commence a proceeding to consider terminating the Person's registration, stating its reasons.
Prior to terminating a registration, the Board of Aldermen shall hold a public hearing, after giving at least fifteen (15) calendar days' notice by posting and publication, at which time the Person and the public shall be given an opportunity to be heard. Following the public hearing, the Board of Aldermen may determine whether to terminate the registration based on the information presented at the hearing and other information of record. If the Board of Aldermen determines to terminate a registration, it shall make such decision by ordinance setting forth the reasons for its decision. The City may make such decision conditional on a Person's failure to resolve outstanding problems or take appropriate steps to resolve such problems within a specific period of time. A copy of such decision shall be provided to the Person through the contact point.
If the Board of Aldermen terminates a registration or if for any reason a Person abandons its Facilities or terminates its registration after notice and reasonable opportunity to be heard, the following procedures and rights are effective:
The Board of Aldermen may require the Person to remove its Facilities from the Public Rights-of-Way at the Person's expense. If the Person fails to do so within a reasonable period of time, the Board of Aldermen may have the removal done at the Person's expense. In removing its Facilities, the Person shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as prevailed prior to the Person's removal of its Facilities. The City shall inspect and approve the condition of the Public Rights-of-Way after removal. The liability, indemnity and insurance as provided herein shall continue in full force and effect during the period of removal and until full compliance by the Person with the terms and conditions of this paragraph of this Chapter. In the event of a failure by the Person to complete any such work or any other work required by the City within the time as may be established and to the reasonable satisfaction of the City, the City may cause such work to be done and the Person shall reimburse the City the reasonable cost thereof within thirty (30) days after receipt of an itemized list of such costs.
Alternatively, the Board of Aldermen may decide that the ownership of all portions of the affected Facilities in Public Rights-of-Way shall revert to the City and the City may sell, assign or transfer all or part thereof.
Once a registration has been terminated by the City, the Person may not register again except upon approval by ordinance from the Board of Aldermen, which approval shall be withheld absent clear and convincing evidence that the Person has remedied all previous violations and is in full compliance with all laws and will not in the future violate this Chapter or defraud the City.
Relation To Insurance And Indemnity Requirements. Recovery by the City of any amounts under insurance, a performance bond or otherwise does not limit a Person's duty to indemnify the City in any way; nor shall such recovery relieve a Person of amounts owed to the City or in any respect prevent the City from exercising any other right or remedy it may have.
Penalties. For violation of provisions of this Chapter, subject to judicial procedures, penalties shall be chargeable to a Person as follows:
For failure to register or to obtain required Permits or any other material violations for which actual damages may not be ascertainable: Up to one thousand dollars ($1,000.00) per day for each violation for each day the violation continues.
For minor violations: up to one hundred dollars ($100.00) per day for each violation for each day the violation continues.
[Ord. No. 604 §1(10), 5-8-2000]
Captions. The captions to Sections throughout this Chapter are intended solely to facilitate reading and reference to the Sections and provisions of this Chapter. Such captions shall not affect the meaning or interpretation of this Chapter.
No Recourse Against The City. Without limiting such immunities as the City or other Persons may have under applicable law, Person required to register hereunder shall have no recourse whatsoever against the City or its officials, members, boards, commissions, agents or employees for any loss, costs, expense, liability or damage arising out of any action undertaken or not undertaken pursuant to any provision or requirement of this Chapter or because of the enforcement of this Chapter the City's exercise of its authority pursuant to this Chapter or other applicable law, unless such recourse is expressly authorized by statute, this Chapter or other ordinance.
Rights And Remedies.
The rights and remedies reserved to the City by this Chapter are cumulative and shall be in addition to and not in derogation of any other rights and remedies which the City may have with respect to the subject matter of this Chapter.
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this Chapter.
Specific mention of the materiality of any of the provisions herein is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance hereunder is material and substantial.
No Person shall be relieved of its obligation to comply with any of the provisions of this Chapter by reason of any failure of the City to enforce prompt compliance. Nor shall any inaction by the City be deemed to waive a provision or render void any provision of this Chapter.
Force Majeure. A Person shall not be deemed in violation of this Chapter where performance was hindered by war or riots, civil disturbances, floods or other natural catastrophes beyond the Person's control and a registration shall not be terminated or a Person penalized for such non-compliance, provided that the Person takes prompt and diligent steps to bring itself back into compliance and to comply as soon as reasonably possible under the circumstances without unduly endangering the health, safety and integrity of employees or property or the health, safety and integrity of the public, Public Rights-of-Way, public property or private property.
Public Emergency. In the event of a public emergency or disaster as determined by the City acting through such officials as may be available given the emergency conditions, a Person required to register hereunder immediately shall make Facilities, employees and property, as may be reasonably necessary, available for use by the City or other civil defense or governmental agency designated by the City for the term of such emergency or disaster for emergency purposes. In the event of such use, a Person shall waive any claim that such use by the City constitutes a use of eminent domain, provided that the City shall return use of the Facilities, employees and property to the Person promptly after the emergency or disaster has ended.
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter or payment is required under this Chapter and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the day of the act, event or default after which the designated period of time begins to run and include the last day of the prescribed or fixed period of time, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the next day which is neither a Saturday, Sunday or legal holiday. If the period is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. This paragraph shall not apply in the context of obligations which continue on a daily basis.
Severability. If any term, condition or provision of this Chapter shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the City and shall thereafter be binding.