Article I Generally
Article II Maintenance Of City Rights-Of-Way And City Power Poles
[R.O. 2013 § 550.010; Ord. No. 06-16 § 1, 3-27-2006]
To the extent permitted by law, this Chapter shall apply to all persons desiring to construct, operate or maintain facilities in, along, across, under or over public rights-of-way within the City.
[R.O. 2013 § 550.020; Ord. No. 06-16 § 2, 3-27-2006]
Definitions And Usage — General. 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 the City Code and, if not defined therein, their common and ordinary meaning. For further convenience, the first letter of terms, phrases, words and abbreviations defined in this Chapter have been capitalized, but an inadvertent failure to capitalize such letter shall not affect its meaning, nor shall the inadvertent capitalization of the first letter of a term, phrase, word or abbreviation not defined herein affect the meaning thereof.
- The specific person applying for and receiving a permit under this Chapter.
- That form designed by the City Administrator or designee which an applicant must use to obtain a permit to conduct facilities work across, over or under the City's right-of-way.
- The City of Fredericktown, Missouri.
- CITY ADMINISTRATOR
- The City Administrator or his/her designee.
- CITY ENGINEER
- The City Engineer or his/her designee.
- 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 any de minimis displacement or movement of ground caused by pedestrian or vehicular traffic 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 shall not be deemed excavation.
- Any conduit, duct, line, pipe, wire, hose, cable, culvert, tube, pole, receiver, transmitter, satellite dish, micro call, 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 aboveground within the public rights-of-way of the City, whether used privately or made available to the public.
- FACILITIES WORK
- The installation of new facilities or any change, replacement, relocation, removal, alteration or repair of existing facilities that requires excavation within the public rights-of-way, except for the occasional replacement of utility poles and related equipment at the existing general location that does not involve either a street or sidewalk cut.
- A permit granted by the City Administrator to do facilities work within the public rights-of-way.
- An individual, partnership, association, joint stock company, trust, organization, limited-liability company, corporation or other entity or any lawful successor thereto or transferee thereof, but such term does not include the City.
- 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, parkway or other similar property in which the City now or hereafter holds any property interest, which was dedicated as rights-of-way. No reference herein, or in a permit, 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 such purposes. "Public rights-of-way" does not include the airwaves above the rights-of-way with regard to cellular or other non-wire telecommunications or broadcast services or easements obtained by utilities or private easements in platted subdivisions or tracts.
[R.O. 2013 § 550.030; Ord. No. 06-16 § 3, 3-27-2006]
Permit Requirements. Any person desiring to conduct facilities work within public rights-of-way must first apply for and obtain a permit, in addition to any other building permit, license, easement or authorization required by law, unless such facilities work must be performed on an emergency basis, then the person conducting the work shall as soon as practicable notify the City of the location of the work and apply for the required permit by the third business day following the commencement of the facilities work.
All applications for permits shall be submitted to the City Administrator. The City Administrator shall design and make available standard forms for such applications, requiring such information as the City Administrator determines to be necessary, consistent with the provisions of this Chapter, to accomplish the purposes of this Chapter.
Each such application shall be accompanied by payment of fees as designated in this Chapter.
The City Administrator shall review each application for a permit and, upon determining that the applicant has authority to perform the desired facilities work and that the applicant has submitted all necessary information and has paid the appropriate fee, shall issue the permit, except as provided in Subsection (A)(4). In order to avoid excessive processing and accounting costs to either the City or the applicant, the City Administrator 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 Administrator shall do the following:
Evaluate the degree of excavation necessary to perform the facilities work in the right-of-way and determine whether the excavation will be more than minor in nature. If the applicant can show to the City Administrator's reasonable satisfaction that the facilities work involves any of the following:
No significant disruption or damage to the public rights-of-way, or
For circumstances where the City Administrator determines that there will be significant excavation of the public rights-of-way and no exemption under Subsection (A)(4)(a) or any other provision of this Section applies, the City Administrator may, consistent with the time requirements set forth in Subsection (A)(3) and in the permit, direct permit holders performing facilities work in the same area to consult on how they may schedule and coordinate their work to accomplish the goal of this Section.
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 Administrator with reasonable advance notice of such dates once they are determined, length of public rights-of-way, number of road crossings, information regarding scheduling and coordination of facilities work, if applicable, and location of facilities.
The City Engineer may include in permits such conditions and requirements as are reasonably necessary to protect structures and 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.
The City Administrator may deny a permit application for the following reasons if deemed in the public's interest:
Undisputed past due fees from prior permits,
Failure to return the right-of-way to its previous condition under previous permits,
Undue disruption to existing utilities, transportation or City use,
Area is environmentally sensitive as defined by State or Federal Statute,
Failure to provide required information, and
The applicant is in violation of the provisions of this Chapter.
Applicant may appeal any final decision of the City Administrator to:
The City Administrator, which appeal shall be acted upon by the City Administrator within five (5) business days; and
If denied by the City Administrator, the applicant may then appeal to the Governing Body of the City which shall consider the appeal within sixty (60) days or at its next regular meeting, whichever occurs first.
Applicant must pay the following fees: In addition to the permit fees, the City will bill the applicant for its costs. Any fees collected pursuant to this Section will be used only to reimburse the City for its actual incurred cost of managing the rights-of-way and will not be used to generate revenue to the City above such costs. The City may not require or accept in-kind services in lieu of any fee.
Permit Fee. A fee charged to recover the City's actual costs for an applicant's facilities work in the right-of-way including the costs of processing permits, inspections and administration of this Chapter, excluding legal fees relating to the interpretation or enforcement of this Chapter including all such appeals. The permit fee is one hundred dollars ($100.00).
Applicant Subject To Other Laws, Police Power.
An applicant shall at all times be subject to all lawful exercise of the Police powers of the City including, but not limited to, all powers regarding zoning, supervision of construction and control of public rights-of-way.
No action or omission of the City shall operate as a future waiver of any rights of the City under this Chapter.
The City shall have the maximum plenary authority to regulate applications, permits and facilities work as may now or hereafter be lawfully permissible. Except where rights are expressly granted or waived by a permit, they are reserved, whether or not expressly numerated. This Chapter may be amended from time to time and in no event shall this Chapter be considered a contract between the City and an applicant such that the City would be prohibited from amending any provision hereof.
[R.O. 2013 § 550.040; Ord. No. 06-16 § 4, 3-27-2006]
Oversight Of Facilities Work.
An applicant shall construct, operate and maintain facilities subject to the supervision of all of the authorities of the City who have jurisdiction in such matters and in strict compliance with this Chapter, all applicable zoning and construction permitting ordinances, departmental rules and regulations.
Facilities work shall be subject to periodic inspection by the City.
The City Administrator 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 ceased 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. Such orders may be enforced by equitable action in the Circuit Court of Madison County, Missouri, and if the City prevails 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.
Any person who engages in facilities work in the public rights-of-way and who has not received a valid permit from the City shall be subject to all requirements of this Chapter. Except in those instances where facilities work must be performed on an emergency basis, the City may, in its discretion, at any time until a permit is secured, order the facilities work ceased and do any of the following: require such person to apply for a permit within thirty (30) days of receipt of a written notice from the City that a permit is required; require such person to remove its property and restore the affected area to a condition satisfactory to the City or take any other action it is entitled to take under applicable law including, but not limited to, filing for and seeking damages for trespass.
The construction, operation, maintenance and repair of facilities shall be in accordance with applicable health, safety and construction codes.
All facilities shall be installed and located with due regard for minimizing interference with the public and with other utility users of the rights-of-way, including the City.
An applicant shall not place facilities where they will damage or interfere with the use or operation of previously installed facilities or obstruct or hinder 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 disturbed or damaged during the facilities work shall be promptly repaired or replaced by the applicant to its previous condition.
Any contractor or subcontractor used for facilities work 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 an applicant would have hereunder and applicable laws if the work was performed by the applicant. The applicant shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with its permits and applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors and shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor.
[R.O. 2013 § 550.050; Ord. No. 06-16 § 5, 3-27-2006]
Prior to any facilities work in the public rights-of-way, an applicant shall establish in the City's favor a performance bond in an amount determined by non-discriminatory regulations promulgated by the City Administrator as necessary to ensure the applicant's faithful performance of the facilities work. Differences in bond requirements, including provisions for self-insurance or provisions for a single continuing bond where facilities work is conducted by the same applicant under numerous permits, may be established by regulation based on the extent or nature of the facilities work, the past performance of the applicant and not based on the characteristics of the applicant. In lieu of a performance bond, applicant may provide an acceptable substitute with the approval of the City Administrator.
In the event an applicant fails to complete the facilities work in a safe, timely and competent manner, 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, plus a reasonable allowance for attorney's fees, up to the full amount of the bond.
Upon completion of the facilities work to the satisfaction of the City Administrator, the City Administrator shall eliminate the bond or reduce its amount after a time appropriate to determine whether the work performed was satisfactory, which time shall be established by the City Administrator considering the nature of the work performed.
A performance bond shall be issued by a surety acceptable to the City 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."
Applicant 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 or proceedings and judgments for damages or equitable relief which are caused by the acts, errors and omissions of applicant arising out of the construction and maintenance of its facilities.
Recovery by the City of any amounts under the performance bond or otherwise does not limit an applicant's duty to indemnify the City in any way, nor shall such recovery relieve an applicant of its obligations under a permit or reduce the amounts owed to the City other than by the amounts recovered by the City under the performance bond or in any respect prevent the City from exercising any other right or remedy it may have.
Penalties. For each violation of provisions of this Chapter or a permit granted pursuant to this Chapter as to which the City has given notice to applicant as provided in this Chapter, penalties may be chargeable to the applicant at a rate not exceeding one hundred dollars ($100.00) per day for so long as the violation continues.
[R.O. 2013 § 550.060; Ord. No. 06-16 § 6, 3-27-2006]
Compliance With Laws. Each applicant shall comply with all applicable City ordinances, resolutions, rules and regulations heretofore and hereafter adopted or established.
Rights And Remedies.
The exercise of one (1) remedy under this Chapter shall not foreclose use of another or shall the exercise of a remedy or the payment of damages or penalties relieve an applicant of its obligations to comply with its permits. Remedies may be used alone or in combination; in addition, the City may exercise any rights it has at law or equity.
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provisions of this Chapter.
No applicant 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.
Incorporation By Reference. Any permit granted pursuant to this Chapter shall by implication include a provision that shall incorporate by reference this Chapter into such permit as fully as if copied therein verbatim.
Force Majeure. An applicant shall not be deemed in violation of provisions of this Chapter where performance was rendered impossible by war or riots, civil disturbances, floods or other natural catastrophes beyond the applicant's control and a permit shall not be revoked or an applicant penalized for such non-compliance, provided that the applicant takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with its permit without unduly endangering the health, safety and integrity of the applicant's employees or property, the public, public right-of-way, public property or private property.
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter or payment is required under this Chapter or any permit and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.
Severability. If any Section, Subsection, sentence, clause, phrase or portion of this Chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof.
[R.O. 2013 § 550.070; Ord. No. 06-16 § 7, 3-27-2006]
The provisions hereof shall specifically apply to any lands or property annexed as of the date of such annexation.
[R.O. 2013 § 550.080; Ord. No. 06-16 § 8, 3-27-2006]
Conformance With Public Improvements.
Whenever the City or the City Administrator deems it necessary to remove, alter, change, relocate or adapt the underground or overhead facilities of a public service provider in the public right-of-way due to the City's reconstruction, widening or straightening of streets; replacement of water or wastewater facilities; installation of traffic signals, traffic signs and markings; or construction of any other City public improvement project, the public service provider that owns the facilities shall conform its facilities with the project as prescribed by the director.
The facilities must be conformed at the public service provider's expense within ninety (90) days after the director issues notice to the public service provider unless a different schedule for the work is approved by the City Administrator.
Facilities of a public service provider that are not conformed within the ninety-day notice period or within the approved schedule will be deemed abandoned and the City will not be liable for any damage to or destruction or removal of the facilities or for any interruption or termination of service through the facilities caused by the activity of the City described in this Section.
Relocation Of Facilities. Whenever, by reason of changes in the grade or widening of a street or in the location or manner of constructing a water pipe, drainage channel, sewer or other City-owned underground or aboveground structure, it is deemed necessary by the City to move, alter, change, adapt or conform the underground or aboveground facilities of user, user shall make the alterations or changes, on alternative right-of-way provided by the City, if available, as soon as practicable after being so ordered, in writing, by the City without claim for reimbursement or damages against the City.
[R.O. 2013 § 550.090; Ord. No. 06-16 § 9, 3-27-2006]
Any standards in this Chapter relating to facilities work shall be fully applicable to work performed by the City and its departments.
[R.O. 2013 § 550.100; Ord. No. 10-66 § 1, 11-8-2010]
Subject to the limitations of the Revised Statutes of Missouri and specifically Sections 67.1830 through 67.1848, RSMo., the City has determined that in order to maintain the public health, safety and welfare, it is necessary to place certain limitations and regulations on the use of City electric power poles and other related structures within City rights-of-way.
[R.O. 2013 § 550.110; Ord. No. 10-66 § 1, 11-8-2010]
As used in this Article, the following terms shall have the meanings respectively ascribed to them in this Section:
- All cables, wires, power supply equipment and all associated hardware and equipment reasonably necessary to the attachment of said cables, wires and power supply equipment and all associated hardware and equipment reasonably necessary to the attachment of said cables, wires and power supply equipment to the City poles or rights-of-way.
- Any entity which furnishes telecommunications and/or cable services and desires the use of the City's rights-of-way.
- The National Electrical Safety Code.
- A distribution system pole owned or jointly used by the City for the distribution of electricity less than one hundred (100) kilovolts (kV).
[R.O. 2013 § 550.120; Ord. No. 10-66 § 1, 11-8-2010]
No use, however extended, of the City's poles or rights-of-way or the payment of fees or charges required under this Article shall create or vest in any licensee any ownership of property rights in the facilities of the City, but the rights granted shall be and remain a mere license. The application and granting of any licenses under this Article shall not constitute an assignment or apportionment of any of the City's rights to use the public or private property at the location of its facilities. Nothing herein contained shall be construed to compel the City to maintain any of its facilities for a period longer than is necessary for its own service requirements.
[R.O. 2013 § 550.130; Ord. No. 10-66 § 1, 11-8-2010]
The City assumes or accepts no responsibility or obligation to maintain its facilities in any manner inconsistent with its current maintenance practices due to the presence of any licensee's attachments. The City may elect to abandon in place its own facilities despite the existence of attachments thereon or therein with no assumption of liability.
[R.O. 2013 § 550.140; Ord. No. 10-66 § 1, 11-8-2010]
No party shall begin attaching any of its attachments to City power poles, including any power supply, without first making application for a license and obtaining written approval of the license from the City. Any entity with an attachment existing prior to November 1, 2010, shall be given until May 31, 2011, to complete the licensing process. Any unlicensed attachment may be removed by the City pending the completion of the licensing requirements imposed by the City.
Licensee shall submit its application on the City's form, which form may be modified from time to time by the City, prior to installing or modifying any attachments to any pole. In this application, the licensee shall identify each new attachment setting forth the purpose of each attachment. The City may review the design, strength and loading characteristics of the pole and notify licensee whether the City will permit the proposed use by the licensee of such pole pending any necessary rearrangements and/or pole replacements. If the license is granted, the licensee shall have the right to use such pole in accordance with the terms and conditions of this Article and such other directions concerning the location and design of the attachments.
Except as otherwise prohibited by law, the City reserves the right to deny any person, entity, firm or corporation access to any pole or conduit where there is insufficient capacity on or in the City's poles or conduits or for reasons of safety, reliability or general applicable engineering standards. Provided however, that before the City denies access based on insufficient capacity, the City shall explore potential accommodations in good faith and take reasonable steps to accommodate valid requests for access. Any existing poles that must be replaced to accommodate a licensee's capacity requirements for attachments or other equipment shall be replaced at the expense of the licensee.
School districts and other governmental entities shall be exempt from the licensing provisions of this Article to the extent that the City poles and rights-of-way are used by them to provide communication services incidental to their government functions; provided however, that all City safety and maintenance requirements are complied with.
[R.O. 2013 § 550.150; Ord. No. 10-66 § 1, 11-8-2010]
Licensee shall, at its own expense, install all attachments in a safe condition and maintain the same in good repair and in any reasonable manner suitable to the City and so as not to conflict with the use of said pole by the City, joint users or other licensees or interfere with the use of facilities thereon or which from time to time may be placed thereon. Licensee shall inspect its attachments on a routine basis in accordance with NESC requirements in order to insure compliance with the terms of this Article.
When a license is issued pursuant to this Article, attachments shall be installed and maintained in accordance with the requirements and specifications of the then-current editions of the American National Standards Institute, National Electrical Code (NEC), the NESC, the Missouri State Electric Code, each of which is incorporated by reference in this Article, the rules and regulations of the Occupational Safety and Health Act of 1970 (OSHA) and in compliance with any lawful rules or orders now in effect or that may hereafter be issued by the City or other authority having jurisdiction. Without limiting the foregoing, the licensee agrees that attachments will be installed in compliance with all applicable spacing requirements with appropriate vertical clearances and clearance to overhead electric lines and equipment and consistent with generally applicable engineering requirements. As and to the extent applicable, licensee shall comply with and shall require any person acting under it, including without limitation agents, contractors and employees, to comply with the Overhead Power Line Safety Act (Section 319.075 et seq., RSMo., 1986) and/or the Underground Facility Safety and Damage Prevention Act (Section 319.010 et seq., RSMo., 1986) as amended from time to time. Nothing contained in this Article shall be construed as a grant of authority to licensee or any person(s) acting under licensee to take or perform any act in violation of the Overhead Power Line Safety Act and/or the Underground Facility Safety and Damage Prevention Act.
Licensee must furnish, own, install, operate and maintain attachments at its own expense.
Licensee will at all times comply with all applicable laws and regulations and, at its sole cost and expense, secure and maintain all permits, licenses, land rights, easements and approval of third parties necessary for the construction, installation, operation, maintenance and removal of its attachments.
Licensee shall make no modification to any equipment or facilities not owned by it or to any of the City's facilities without first having obtained the City's written consent.
In order to facilitate identification and notification of licensee's attachments, licensee will provide means by which its attachments can be identified from the ground, including underground attachments, risers and drops.
Any inspections, whether made or not by the City, shall not operate to relieve licensee of any responsibility, obligation or liability assumed under this Article for its attachments.
In the event that attachments are found to be interfering or in conflict with existing equipment, facilities or attachments of the City or other licensees, or if any attachments interfere with the services of the City or a pole becomes inadequate to support licensee's attachment(s) and such interference or inadequacy of the pole is due to licensee's attachment(s), then in the City's sole discretion either:
Licensee shall relocate attachments to another acceptable location, if any, at licensee's expense, or
The City may arrange to relocate, replace or remove attachments and licensee shall reimburse the City for the expense thereby incurred. If no acceptable location exists, then attachments shall be removed or licensee shall pay for any modification necessary to continue its access.
Licensee shall comply with the following procedures with respect to attachments used to provide telecommunication services as defined in 47 U.S.C. § 224 (telecommunications attachment).
Licensee shall notify the City within thirty (30) days after an attachment becomes a telecommunications attachment. Contemporaneously with the notice for each new telecommunications attachment, licensee shall pay the City an amount equal to:
Within ten (10) days of the end of each calendar year, licensee shall provide a certificate in a form reasonably acceptable to the City certifying the number of telecommunications attachments as of the end of the previous calendar year. The certificate will indicate how many of these attachments became telecommunications attachments during the previous calendar year and how many were telecommunications attachments prior to the start of the previous calendar year. In addition, licensee shall provide the City with access to the records of licensee necessary to confirm to the reasonable satisfaction of the City the accuracy of any certificate delivered by licensee pursuit to this Article. To the extent the certificate reflects that an attachment became a telecommunications attachment during the previous calendar year but was not reported in accordance with this Article, licensee shall pay the amount determined in accordance with this Article plus interest at the rate of twelve percent (12%) plus an amount equal to twenty-five dollars ($25.00) for each attachment for which the licensee has been underbilled.
[R.O. 2013 § 550.160; Ord. No. 10-66 § 1, 11-8-2010]
The City reserves to itself, its successors and assigns the right to maintain its poles and to operate its facilities in such a manner as will best enable it to fulfill its utility service requirements. The City shall not be liable to any licensee, its customers or any others for any interruptions in services of any licensee or for interference with the operation of any licensee's attachments arising in any manner out of the use of the City's poles, including such times as when interruptions or interference are caused by the negligence of the City or any of its employees or agents.
[R.O. 2013 § 550.170; Ord. No. 10-66 § 1, 11-8-2010]
Licensee shall be responsible for any tree and vegetation trimming that may be necessary to maintain the integrity of its lines. Licensee shall comply with the provisions and spirit of this Code.
[R.O. 2013 § 550.180; Ord. No. 10-66 § 1, 11-8-2010]
Except for the power supply equipment, licensee shall locate attachments only in the communication space as designated by the NESC on the same side of the pole as any existing communications circuitry, provided however, that the licensee's power supply equipment shall be placed in locations mutually agreed upon by the licensee and the City. Position on the pole will be generally fiber-optic wire, cable television and telecommunications from the top to the bottom.
To minimize rearrangement work by all other companies involved, licensee may negotiate with any other companies which may already be attached for alternate means of attachment, i.e., overlashing an existing messenger cable, use of horizontal spacing bracket, etc. The City's prior written agreement on such alternate means of attachment is required. Any party attaching equipment as provided in this Section shall be responsible for its full share of expenses as a licensee. Brackets may be used as a means of attachment. Bracket hardware must be approved by the City and any prior joint user that will share the bracket.
Licensee shall have the obligation and duty to verify that the service requirements of joints users or other licensees will not be disrupted.
[R.O. 2013 § 550.190; Ord. No. 10-66 § 1, 11-8-2010]
The occupancy of the City's existing rights-of-way by attachments, without an attachment to the City's facilities, other than its right-of-way, will only be permitted underground and only in the case where said attachments do not physically occupy the City's conduit system, manholes or vaults.
Licensee will furnish, own, install, operate and maintain attachments in rights-of-way.
If the City either no longer needs a right-of-way occupied by licensee or by virtue of change in law or ordinance is forced to forfeit said right-of-way, it may assign whatever rights it has or whatever rights remain to a licensee, but in no event shall the City be required to make such assignment if in the City's absolute discretion it determines that such assignment is not in the best interest of the City.
All installations made by licensee shall be made pursuant to specific plans and processes approved by the City in advance. All work will be done in a workmanlike manner assuring the City access to its facilities at all times. Licensee shall maintain support and necessary stabilization for the City's facilities at all times. Trenches shall be refilled and restored to a condition comparable to that preceding construction.
The City will maintain the rights-of-way as is necessary for its facilities. Any differing requirements for maintenance of the rights-of-way for attachments will be the responsibility and expense of licensee. The grant of the license shall not be construed to compel the City to maintain and keep in force any franchise, easement or similar rights for a period longer than is necessary for its own service requirements.
To the extent that it has the legal right, the City will permit necessary access over the City's adjoining rights-of-way to licensee.
Any and all additional rights or interests required from the underlying fee owner or others having right to occupy the rights-of-way which are prior in time to the license shall be obtained by licensee at its sole expense.
[R.O. 2013 § 550.200; Ord. No. 10-66 § 1, 11-8-2010]
No licensee shall erect poles of its own in any of the public rights-of-way within the City without first obtaining written permission from the City and obtaining any and all necessary permits. The City may in its absolute discretion require any licensee to move to poles owned by the City if the City determines in its absolute discretion that such move is in the best interest of the City.
[R.O. 2013 § 550.210; Ord. No. 10-66 § 1, 11-8-2010]
Licensee shall promptly notify the City of any damage caused to the poles or to the City's attachments located on the poles that has been directly or indirectly caused by the licensee's use of the poles.
Prior to making any major repairs or conducting any maintenance work on its attachments to the City's poles which may affect the structural integrity of the poles, the licensee shall provide written notice to the director of electric utilities of the City fully describing the facilities on which the repairs or work will be conducted and the nature of the repairs, maintenance or work. Such plan shall incorporate proper engineering and construction methods to insure that the poles and pole lines are not compromised. Such notice shall be provided to the City at least five (5) days prior to such repairs, maintenance or work except in the case of emergency repairs in which case notice shall be delivered as soon as practical.
[R.O. 2013 § 550.220; Ord. No. 10-66 § 1, 11-8-2010]
Licensee shall at all times maintain all of its attachments in good condition so that they do not interfere with the safe and reliable operation of equipment or attachments belonging to the City or other licensees.
[R.O. 2013 § 550.230; Ord. No. 10-66 § 1, 11-8-2010]
Any street, sidewalk or other public or private property disturbed, damaged or injured by any licensee conducting activity under its license shall be promptly repaired at the licensee's expense to the reasonable satisfaction of the City and/or private property owner. Any expense incurred by the City to repair damage to poles or other City property as a result of failure or neglect by any licensee to maintain proper clearances or due to improper construction methods and means that compromise the structural integrity of the poles shall be borne solely by the licensee.
[R.O. 2013 § 550.240; Ord. No. 10-66 § 1, 11-8-2010]
The City will not be required to provide advance notice for facility modifications made by reason of emergency or routine maintenance activities, but shall provide sixty (60) days' notice of non-routine maintenance. If licensee uses the opportunity of the City's modification to a facility to benefit the licensee's attachments, the licensee shall pay a pro rata share of the modification cost. Where the City must replace or relocate a pole and such replacement or relocation is not caused by the addition of a new attachment, an emergency or routine maintenance, the City shall provide the licensee reasonable advance notice before undertaking such replacement or relocation. Licensee shall transfer attachments within thirty (30) days of receiving notice that the new pole is in place unless the time is extended by written agreement with the City. If licensee does not transfer attachments within such thirty (30) days, then the City may transfer attachments at the licensee's expense. If the City or the City's designee is required to make a return trip to remove a pole or perform other service as a result of licensee's failure to transfer attachments within the time period set forth herein, then the licensee shall reimburse the City or such City's designee for the cost incurred by such return trip.
[R.O. 2013 § 550.250; Ord. No. 10-66 § 1, 11-8-2010]
At any time, the City may audit all or any portion of any attachments to its poles or rights-of-way. Upon discovery of an unauthorized or non-compliant attachment, the City may elect either of the following options:
[R.O. 2013 § 550.260; Ord. No. 10-66 § 1, 11-8-2010]
If the City at any time desires to abandon a jointly used pole due to replacement or repair, it shall give the licensee notice, in writing, to that effect at least thirty (30) days prior to the date on which it intends to abandon such pole, and the licensee shall within the thirty-day period remove all of its attachments from the pole to be abandoned. If the City abandons any jointly used pole due to the obsolescence of the pole, it shall give the licensee notice in writing to that effect at least thirty (30) days prior to the date on which it intends to abandon such pole, and the licensee shall within the thirty-day period request in writing permission to remain on such pole. In the event permission is granted, the licensee shall assume all responsibility for the maintenance and upkeep of the abandoned pole.
A licensee may remove its attachments from the City's poles following notification in writing to the City. Removal of attachments shall not affect the terms of its license except that if a licensee removes attachments from all City poles and/or ceases to provide its services within the City, then the license issued under this Article shall automatically terminate effective the day after the removal of the last attachment by the licensee.
[R.O. 2013 § 550.270; Ord. No. 10-66 § 1, 11-8-2010]
The time frame for correcting NESC violations discovered by the City shall be as follows:
Critical violations that are life-threatening or threaten imminent danger to persons or property shall be corrected immediately upon written notice.
Major violations that are substantial but not critical shall be repaired as soon as possible but no later than thirty (30) days after written notice.
Technical violations that are technical and not critical or major shall be repaired as soon as possible but no later than one hundred eighty (180) days after written notice.
If licensee fails to correct any NESC violation within the time frame set forth in this Section, then the City shall correct the violation. The licensee shall pay to the City all costs associated with the correction of the violation.
[R.O. 2013 § 550.280; Ord. No. 10-66 § 1, 11-8-2010]
The licensee shall promptly pay the City for all charges for work and materials expended by the City in correction with the City's enforcement of the licensee's requirements under this Article. The licensee shall provide to the City a performance bond in an amount set by the City to secure the payment of any charges or expenses which the City may incur in the enforcement of the requirements of the licensee under this Article. In the event that any licensee objects to the amount of the performance bond, the City shall provide a hearing before the City administrator or his/her designee at which hearing the licensee may provide evidence of the appropriate amount and nature of its performance bond.
[R.O. 2013 § 550.290; Ord. No. 10-66 § 1, 11-8-2010]
The licensee shall exercise due care and take appropriate safety precautions necessary or advisable for the prevention of accidents and shall comply with all laws and regulations applicable to the work to be performed under its license. At the City's request, the licensee shall carry insurance approved by the City naming the City as an additional insured.
[R.O. 2013 § 550.300; Ord. No. 10-66 § 1, 11-8-2010]
The licensee shall submit to the director of electric utilities of the City detailed plans and specifications showing its plan for the method of attachment to the City's poles and rights-of-way. The electric superintendent of the City shall approve the plans and specifications submitted by the licensee. These plans and specifications may be modified from time to time with the approval of the electric superintendent of the City. Such plans and specifications submitted to the City by the licensee shall be available for inspection during normal business hours.
[R.O. 2013 § 550.310; Ord. No. 10-66 § 1, 11-8-2010]
No licensee shall assign, transfer or sublet any part of its licensed privileges under this Article without the City's prior written consent except that the City shall not require its consent in the event the licensee assigns its privileges to an affiliated entity which controls or is controlled by or under common control with the licensee or to any successor entity that acquires ownership in the licensee.
In the event an assignment takes effect under Subsection (A) of this Section, then all conditions in the license shall bind the successors and assigns of the original licensee.
A request by any licensee for consent to assignment or transfer shall set forth, in writing, the details of the proposed transfer, including the name, business and financial condition of the prospective assignee and any other information requested by the City, in writing, as well as the prospective assignee's signed written acceptance of all of the terms, conditions and limitations of the license.
[R.O. 2013 § 550.320; Ord. No. 10-66 § 1, 11-8-2010]
For the purposes of making pole rental payments as described in Section 515.330, the number of poles used at any time shall be determined as being equal to the number of joint use poles determined by the last complete field inventory conducted by the City and adjusted for any additional attachments or removals made since the completion of the last field inventory.
At any time, upon the written request of the licensee, a complete field inventory of all joint use poles will be conducted provided that all costs associated with the requested field inventory shall be borne by the licensee.
[R.O. 2013 § 550.330; Ord. No. 10-66 § 1, 11-8-2010]
[R.O. 2013 § 550.340; Ord. No. 10-66 § 1, 11-8-2010]
In order to enforce the provisions in this Article, the City may:
Require the licensee to repair, replace or remove any violation at the licensee's sole expense.
In the event the City, in its absolute discretion, determines that any violation is an immediate threat to public safety or to the structural integrity of the City's system, then the City may repair, replace or remove any violation at the licensee's sole expense.