[R.O. 2011 §250.010; Ord. No. 2000-92 §2(1), 12-5-2000]
This Chapter shall be known as the Right-of-Way and Communications
Regulations.
[R.O. 2011 §250.020; Ord. No. 2000-92 §2(1.2), 12-5-2000; Ord. No. 1578, 2-6-2018]
A.
The purpose and intent of this Chapter is to:
1.
Conserve the limited physical capacity of the rights-of-way
held in public trust by the City.
2.
Permit and manage reasonable access to the right-of-way of the
City.
3.
Maintain a competitively neutral and non-discriminatory policy
to ROW Users and resell service providers and allow the citizens of
the City to receive the benefits of market competition.
4.
Facilitate orderly construction and maintenance of facilities
in the right-of-way, reduce the damage to the facilities or ROW Users,
and minimize disruption of service to the citizens of the City.
5.
Assure that the City can continue to fairly and responsibility
protect the public health, safety and welfare.
6.
Enable the City to discharge its public trust consistent with
rapidly evolving Federal and State telecommunications regulatory policies,
industry competition and technological development.
7.
Establish a local policy concerning communications (including
telecommunications) providers and services.
8.
Encourage the provision of advanced and competitive communications
services on the widest possible basis to the businesses, institutions
and residents of the City.
9.
Establish clear local guidelines, standards and time frames
for the exercise of local authority with respect to the regulation
of the right-of-way.
[R.O. 2011 §250.030; Ord. No. 2000-92 §2(1.3), 12-5-2000; Ord. No. 2001-54 §1, 5-15-2001; Ord. No. 1578, 2-6-2018]
For the purpose of this Chapter, and the interpretation and
enforcement thereof, the following words and phrases shall have the
following meanings:
Any equipment, materials, apparatuses, devices or facilities
that are either declared abandoned by the owner of such equipment
or facilities; or, no longer in active use, physically disconnected
from a portion of the operating facility or any other facility that
is in use or in service, and no longer capable of being used for the
same or similar purpose for which the equipment, apparatuses or facilities
were installed; or 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 as otherwise may be defined by applicable
law.
The fee charged by the City to recover its cost incurred
for Right-of-Way management; including, but not limited to, costs
associated with registering applicants; issuing, processing, and verifying
Right-of-Way permit applications; inspection of job sites and restoration
improvements; protecting or moving public utility right-of-way user
construction equipment after reasonable notification to the public
utility right-of-way user during public right-of-way work; determining
the adequacy of Right-of-Way restoration; restoring work inadequately
performed after providing notice and the opportunity to correct the
work; revoking Right-of-Way permits and, other costs that may be considered
"management costs" or "Right-of-Way management costs" under Section
67.1830, RSMo., the City may incur in managing the provisions of this
Chapter.
The City Administrator of the City or his or her designee(s).
Any person controlling, controlled by, or under the common
control of a ROW user or reseller service provider.
Any device that transmits and/or receives electromagnetic
wireless radio waves or signals for voice, data or video communications
purposes, including, but not limited to, television, text, AM/FM radio,
microwave, cellular telephone, communications service, or otherwise.
Any person requesting permission to occupy, lease, or operate
facilities using the Right-of-Way, or to excavate the Right-of-Way.
The Board of Aldermen of the City.
The Cable Communications Policy Act of 1984, 47 U.S.C. § 532
et seq., as now and hereafter amended.
The offering of direct access by a cable license to the international
computer network of both Federal and non-Federal interoperable packet
switched data networks to customers for a fee. "Cable Internet Service"
shall mean the direct access to the Internet provided to customers
over the cable facilities 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.
A person providing or offering to provide cable service within
the City.
Shall have the same meaning provided by the Cable Act.
The City of Riverside, Missouri.
Includes all real property owned in fee or leased by the
City, other than right-of-way, and all property held in a proprietary
capacity by the City, including but not limited to City parks, City
Hall, the community center, any public safety facilities or any public
works facilities, which are not subject to right-of-way permitting
as provided in this Chapter.
See "Utility" and "Utility Facilities."
The transmission via facilities, in whole or in part, of
any writing, 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, as such terms are now, or may in the
future be, defined under applicable law, and including all instrumentalities,
facilities, apparatus (communications facilities), and services (among
other things, the receipt, forwarding, and delivery of telecommunications)
incidental to such transmission or designed to directly or indirectly
facilitate or accept such transmission and shall also include "video
services" as defined in Section 67.2677, RSMo. The term "Communications
Service" does not include the rental of conduit or physical facilities.
Includes the construction, installation, erection, building,
affixing, or otherwise placing any fixed structure or object in, on,
under, through or above the right-of-way.
Includes but is not limited to the following:
An unexpected or unplanned outage, cut, rupture, leak, or any
other failure of a public utility facility that prevents or significantly
jeopardizes the ability of the public utility to provide service to
customers;
An unexpected or unplanned outage, cut, rupture, leak, or any
other failure of a public utility facility that results or could result
in danger to the public or a material delay or hindrance to the provision
of service to the public if the outage, cut, rupture, leak, or any
other such failure of public utility facilities is not immediately
repaired, controlled, stabilized, or rectified; or
Any occurrence involving a public utility facility that a reasonable
person could conclude, under the circumstances, that immediate and
undelayed action by the public utility is necessary and warranted.
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, uncovered,
removed or otherwise displaced, by means of any tools, equipment,
or explosives, except that the following shall not be deemed excavation:
Any de minimis displacement or movement of ground caused by
pedestrian or vehicular traffic;
The replacement of utility poles and related equipment at the
existing general location that does not involve either a street or
sidewalk cut; or
Any other activity which does not disturb or displace surface
conditions of the earth, asphalt, concrete, sand, gravel, rock, or
any other material in or on the ground.
The permit which, pursuant to this Chapter, must be obtained
before a person may install, excavate and/or obstruct the right-of-way
in connection with facilities.
Any person to whom an excavation permit has been granted
by the City under this Chapter.
The remaining volume or capacity in any existing or future
duct, conduit, manhole, handhold or other utility facility within
the right-of-way that is or will be available for use of communications
facilities.
Any unforeseeable event beyond the reasonable control of
the non-performing person, including strikes and lockouts (except
where such strikes or lockouts are, directly or indirectly, within
the power of the person involved in extraordinary circumstances to
prevent), fire, earthquake, floods, war, riots, confiscation or nationalization,
whether imposed by law, decree or regulation by any governmental authority,
provided such event is not caused, directly or indirectly, by the
financial ability, failure to make any required payment, negligence,
intentional conduct or misconduct of the non-performing person, including
its officers, employees, agents and Affiliates, and such event makes
such person's performance of its obligations hereunder impossible
or so impracticable as reasonably to be considered impossible under
the circumstances.
See "Utility" and "Utilities Facilities."
The Federal Communications Commission or other Federal administrative
agency, or lawful successor, authorized to regulate and oversee communications
carries, services and providers on a national level.
The rights and obligations extended by the City to certain
utilities to occupy City Right-of-Way for the purpose of providing
certain forms of utility service to any person or areas within the
City's limits and boundaries.
To construct or install facilities within the right-of-way.
The rights and obligations extend by the City to a person,
corporation, association, firms, partnerships, or others to use and
occupy the City Right-of-Way for the purpose of installing temporary
facilities within the Right-of-Way or incidental uses such as ingress
and egress facilities, lateral utility lines, mailboxes, or driveway
aprons.
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 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.
A local person, or designee of such person, authorized by
a registrant to accept service and to make decisions for that registrant
regarding all matters within the scope of this Chapter.
The actions the City takes, through reasonable exercise of
its police powers, to impose rights, duties and obligations on all
users of the Right-of-Way, including the City itself, in a reasonable,
competitively neutral and non-discriminatory and uniform manner, reflecting
the distinct engineering, construction, operation, maintenance and
public work and safety requirements applicable to the various users
of the public Right-of-Way, provided that such rights, duties and
obligations shall not conflict with any Federal law or regulation.
Only routine service operations in the right-of-way.
To place any tangible object within a right-of-way so as
to hinder free and open passage over that or any part of the right-of-way.
Utility facilities and communications facilities located
above the surface of the ground, including the underground supports
and foundations for such facilities.
Any person to whom a permit has been issued to work, excavate,
or locate specific facilities within the right-of-way.
Any natural or corporate person, business association, or
business entity including but not limited to, a partnership, a sole
proprietorship, a political subdivision, a public or private agency
of any kind, a utility, a successor or assign of any of the foregoing
or any other legal entity.
Any highway, street, cartway, alley or other public right-of-way
for motor vehicle travel under the jurisdiction and control of the
City which has been acquired, established, dedicated or devoted to
highway purposes not inconsistent with facilities.
See "Right-of-Way."
See "Right-of-Way User."
The temporary construction work necessary to make the right-of-way
usable for travel.
A person providing service within the City limits that does
not have its own facilities in the Right-of-Way, but instead uses
the Right-of-Way by interconnecting with the network elements of a
ROW user utilizing the Right-of-Way, and/or by using excess capacity
from a ROW user with no right to physically access facilities or the
Right-of-Way.
A performance bond or cash deposit posted to ensure the availability
of sufficient funds to assure that excavation and obstruction work
is completed in both a timely and quality manner.
The cost of restoration.
The process by which a right-of-way and surrounding area,
including pavement and foundation, is returned to the same condition
that existed before the commencement of the work under a construction
permit.
The Administrator and any other person authorized by the
Administrator to carry out inspections related to the provisions of
this Chapter.
The rights and obligations extended by the City to a person,
corporation, association, firms, partnerships or others to erect utility
facilities or other structures within the City Right-of-Way for the
purpose of providing any form of communications service to any person
or area within the City's limits and boundaries subject to the regulations
and requirements herein.
The area on, below or above a public roadway, highway, streets,
alleys, bridges, bikeways, parkways, and sidewalks in which the City
has an ownership interest and including such adjacent areas of such
rights-of-way within such ownership interest as made available by
the City for ROW use herein, but not including: (a) the airwaves above
a public Right-of-Way with regards to cellular or other non-wire telecommunications
or broadcast service; (b) easements obtained by utilities or private
easements in platted subdivisions or tracts; or (c) poles, pipes,
cables, conduits, wires, optical cables, or other means of transmission,
collection or exchange of communications, information, substances,
data, or electronic or electrical current or impulses utilized by
a municipally owned or operated utility pursuant to Chapter 91, RSMo.,
or pursuant to a charter form of government; or (d) easements obtained
by utilities or private easement in platted subdivision or tracts.
All persons and entities, whether a PSC registered utility
or otherwise owning, controlling, leasing, maintains, using or installing
facilities in the right-of-way of the City, not otherwise expressly
exempted. A ROW User shall not include Reseller Service Provider,
ordinary vehicular or pedestrian traffic, or to the extent permitted
by law, any governmental entity that has entered into an inter-local
agreement with the City regarding the use and occupancy of the City's
right-of-way.
A commodity provided to a person by means of a delivery system
that is comprised of the facilities located or to be located in the
Right-of-Way, including, but not limited to gas, telephone, cable
television, internet services, open video systems, alarm systems,
steam, electric, water, telegraph, data transmission, petroleum pipelines,
or sanitary sewerage.
The State of Missouri.
An application made to excavate or obstruct or install within
or use more of the right-of-way than allowed in, or to extend a right-of-way
permit that had already been issued.
That portion of the usable space on a utility pole which
has the necessary clearances from other pole users, as required by
all applicable orders and regulations to allow its use by a communications
carrier for a pole attachment.
Utility facilities and facilities located under the surface
of the ground, excluding the underground foundations or supports for
overhead facilities.
Any corporations, companies as associations, joint stock
companies or associations, firms, partnerships, limited liability
companies and individuals and includes their lessors, trustees, and
receivers; which provide communications, electric, natural gas, or
other such services to their customers. For purposes of this Chapter,
this term does not include the City except as maybe required by law.
Any easement owned by the City and acquired, established,
dedicated or devoted for public utility purposes.
The plant, equipment and property, including but not limited
to the poles, pipes, mains, conduits, ducts, cables, wires, plant,
equipment or any other related structure located under, on, or above
the surface of the ground within the right-of-way of the City and
used or to be used for the purpose of providing utility services;
provided this term shall not authorize antennas, towers, or other
structures or equipment for wireless communications unless having
been expressly consented to by the City in writing pursuant to supplemental
requirements and regulation of the City.
Excavation and/or the construction, installation, repair,
or maintenance of any type of facility within the Right-of-Way.
Any person who desires to excavate, obstruct, install or work within any right-of-way in connection with facilities shall first obtain an excavation permit from the City pursuant to Article III of this Chapter.
[1]
Editor’s Note: Ord. No. 1578 also changed the title
of this Section from “Construction Permit” to “Excavation
Permit.”
Any person who desires to use, operate, maintain or otherwise
locate facilities within any right-of-way shall first obtain from
the City a Right-of-Way Use Agreement regarding the use of the right-of-way
pursuant to Section 150.150 of this Chapter.
[1]
Editor’s Note: Ord. No. 1578 also changed the title
of this Section from “Public Ways Use Permit” to “Right-Of-Way
Use Agreement.”
[R.O. 2011 §250.070; Ord. No. 2000-92 §2(1.7), 12-5-2000]
A.
Any
communications carrier who desires:
[Ord. No. 1578, 2-6-2018]
A.
Unless otherwise provided in a license, franchise, or Right-of-Way
use agreement, or where limited by applicable law, any person that
utilizes the City's Right-of-Way is subject to the requirements of
this Chapter. No Person shall commence or continue with the operation
of any facilities or structures in the ROW except as provided and
in compliance with this Chapter. Because numerous types of users and
uses of the ROW 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 ROW 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 State and Federal
law. The requirements of this Chapter shall be in addition to any
obligation contained in any license, franchise, or Right-of-Way use
agreement except in those instances where the provisions of this Chapter
and a license, franchise, or Right-of-Way use agreement which existed
on the date of adoption hereof and specifically inconsistent with
like provisions of occupancy or construction and excavation within
the City's Right-of-Way until:
1.
The expiration of said franchise or Right-of-Way use agreement;
or
2.
An agreement to an unexpired franchise or Right-of-Way use agreement
is added; or
3.
Both parties agree to defer full compliance to a specific date
not later than the present expiration date of the preexisting agreement.
|
Exceptions. Unless otherwise provided in a license, franchise
or right-of-way use agreement, every person is subject to the applicable
requirements of this Chapter. Provided however that no provision of
this Chapter shall apply to any circumstance in which such application
shall be unlawful under superseding Federal or State law and furthermore,
if any Section, Subsection, sentence, clause, phrase, or portion of
this Chapter 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.
|
[R.O. 2011 §250.080; Ord. No. 2000-92 §2(1.8), 12-5-2000]
A.
To
the extent the provisions of this Chapter are in direct conflict with
the express provisions of a written agreement with the City and such
conflict cannot be reconciled, the existing written agreement shall
govern, as between the parties until the earlier of:
[R.O. 2011 §250.090; Ord. No. 2000-92 §2(1.9), 12-5-2000]
Any person found guilty of violating, disobeying, omitting,
neglecting or refusing to comply with any of the provisions of this
Chapter shall be fined five hundred dollars ($500.00) for each offense.
A separate and distinct offense shall be deemed committed each
day on which a violation occurs or continues.
[R.O. 2011 §250.100; Ord. No. 2000-92 §2(1.10), 12-5-2000]
Nothing in this Chapter shall be construed as limiting any judicial
remedies that the City may have, at law or in equity, for enforcement
of this Chapter.
[R.O. 2011 §250.110; Ord. No. 2000-92 §2(1.11), 12-5-2000; Ord. No. 1578, 2-6-2018]
The City by executing a right-of-way use agreement or by registering
or licensing a person under this Chapter does not surrender or to
any extent lose, waive, impair or lessen the lawful powers and rights,
which it has now or may be hereafter granted to the City under the
Constitution and Statutes of the State, to regulate the use of the
right-of-way; and each ROW User, registrant and licensee by its acceptance
of a right-of-way permit or license or by registering under this Chapter
agrees that all lawful powers and rights, regulatory power, or Police
power, or otherwise as are or the same may be from time to time vested
in or reserved to the City, shall be in full force and effect and
subject to the exercise thereof by the City at any time. Each ROW
User, registrant and licensee is deemed to acknowledge that its rights
are subject to the regulatory and Police powers of the City to adopt
and enforce general ordinances necessary to the safety and welfare
of the public.
[R.O. 2011 §250.120; Ord. No. 2000-92 §2(1.12), 12-5-2000]
In placing any facility, or allowing it to be placed, within
the public ways, the City is not liable for any damages caused thereby
to any person. Further, no special duty is created as to any registrant
or other person holding a right-of-way permit or license.
[R.O. 2011 §250.130; Ord. No. 2000-92 §2(1.13), 12-5-2000; Ord. No. 1578, 2-6-2018]
Obtaining a construction permit or franchise, license, or Right-of-Way
Use Agreement does not relieve the party of its duty to obtain necessary
permits, licenses, and authority to pay all fees required by any other
City, County, State, or Federal rules, laws or regulations. All persons
shall comply with all requirements of local, State and Federal laws
and shall perform all work in conformance with all applicable Codes
and established rules and regulations and are responsible for all
work done, regardless of who does the work.
[R.O. 2011 §250.140; Ord. No. 2000-92 §2(1.14), 12-5-2000]
If any Section, Subsection, sentence, clause, phrase, or other
portion of this Chapter, or its application to any person, is for
any reason declared invalid, in whole or in part, by any court or
agency of competent jurisdiction, said decision shall not affect the
validity of the remaining portions hereof.
