HomeMy WebLinkAbout2000 - 092 - Amendments to Chapter 250 of the Municipal CodeBILL NO. ~~%'~ `~~
ORDINANCE NO.~~'~l'-~.~
AN ORDINANCE AMENDING CHAPTER 250 OF THE MUNICIPAL CODE
CITY OF RIVERSIDE RELATING TO RIGHT-OF-WAY
MANAGEMENT AND COMMUNICATIONS
WHEREAS, the City desires to permit and manage reasonable access to the public ways of
the City.
WHEREAS, the City desires to secure fair and reasonable compensation to the City and the
residents of the City for permitting private use of the public ways.
WHEREAS, the City desires to assure that the City can continue to fairly and responsibly
protect the public health, safety and welfare.
WHEREAS, the City has been in the process of studying its comprehensive ordinance for
right-of--way management.
NOW, THEREFORE, be it ordained by the Board of Aldermen of Riverside, Missouri:
Section 1. The City hereby declares as a legislative finding that the Public Ways within the City
of Riverside:
A. Are a unique and physically limited resource;
B. Are critical to the travel and transport of persons and property in the City; and
C. Are intended for public uses and must be managed and controlled consistent with that
intent; and can be partially occupied by the Facilities of utilities and public service
entities, to the enhancement of the health, welfare, and general economic well being
of the City and its citizens; and require adoption of specific additional regulations to
ensure coordination of users, maximize available space, reduce maintenance and
costs to the public, and facilitate entry of a maximum number of providers of cable,
telecommunications, and other services in the public interest.
Section 2. Chapter 250 of the Municipal Code City of Riverside relating to right-of--way
management and communications is repealed and enacted in its place is the Right-of--Way and
Communications Ordinance ("Ordinance") attached as Exhibit A and incorporated herein.
Section 3. The sections, paragraphs, clauses, and phrases of the Ordinance are severable and if
any portion of the Ordinance is declared unlawful by the valid judgment, decree, or injunction order
of a court of competent jurisdiction, such ruling shall not affect any of the remaining phrases,
clauses, sentences, paragraphs, and sections of the Ordinance and all provisions of the Ordinance not
specifically declared to be unlawful shall remain in full force and effect.
Section 4. This ordinance shall take effect immediately.
Adopted and passed this,~~day of~ 2000.
MAYOR'
ATTEST:
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~~ ~ ITY CLERK
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CHAPTER 250
RIGHT OF WAY AND COMMUNICATIONS ORDINANCE
ARTICLE 1: General
Section 1.1: Short Title: This Chapter shall be known as the Right of Way and Communications
Ordinance.
Section 1.2: Purpose: The purpose and intent of this Chapter is to:
1.2.1: Conserve the limited physical capacity of the public ways held in public trust by the City.
1.2.2: Permit and manage reasonable access to the public ways of the City.
1.2.3: Assure that the City's current and ongoing costs of granting and regulating private access to
and use of the public ways are fully paid by the persons seeking such access and causing such costs.
1.2.4: Secure fair and reasonable compensation to the City and the residents of the City for
permitting private use of the public ways.
l .2.5: Assure that the City can continue to fairly and responsibly protect the public health, safety and
welfare.
1.2.6: Enable the City to discharge its public trust consistent with rapidly evolving federal and state
telecommunications regulatory policies, industry competition and technological development.
1.2.7: Establish a local policy concerning communications (including telecommunications)
providers and services.
1.2.8: Encourage the provision of advanced and competitive communications services on the widest
possible basis to the businesses, institutions and residents of the City.
l .2.9: Establish clear local guidelines, standards and time frames for the exercise of local authority
with respect to the regulation of the public ways.
Section 1.3: Definitions: For the purpose of this Chapter, and the interpretation and enforcement
thereof, the following words and phrases shall have the following meanings:
"Abandonment" means the nonuse of any Facilities within the Public Ways for two years and for
which Public Ways Use Permittee is unable to provide proof that it has either a bona fide plan to
begin using such Facilities within the next twenty-four months or a potential good faith purchaser
or user of such Facilities.
"Administrator" means the City Administrator of the City or his or her designee(s).
"Affiliate" means a Person that (directly or indirectly) owns or controls, is owned or controlled by,
or is under common ownership or control with another Person; provided that Affiliate shall not
include any limited partner or shareholder holding an interest of less than 15 percent of such Person
or any creditor of such Person solely by virtue of its status as a limited partner, shareholder or
creditor and which is not otherwise an Affiliate by reason of owning a controlling interest in, being
owned by, or being under common ownership, common management, or common control with, such
Person.
"Antenna" means any device that transmits and/or receives radio waves for voice, data or video
communications purposes including, but not limited to, television, AM/FM radio, microwave,
cellular telephone and similar forms of communications. A combination of panels, boxes, or other
antenna physically connected and designed in conjunction to receive signals at one location shall be
considered one (1) antenna.
"Applicant" means any Person requesting any Right-of--Way Permit(s).
`Board "means the Board of Aldermen of the City.
"Cable Act" shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. § 532, et seq.,
as now and hereafter amended.
"Cable Internet Services ° means 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 ofincidental services or revenues
that are required by law to be treated under the same regulation as such direct access service.
"Cable Operator ° means a Person providing or offering to provide Cable Service within the City.
"Cable Service" for the purpose of this Chapter shall have the same meaning provided by the Cable
Act.
"City" means the City of Riverside, Missouri.
"City Cost "means the costs incurred by the City for Public Way management including but not
limited to costs associated with registering Registrants; issuing, processing, and verifying Right-of-
Way Permit applications; inspecting job sites and Restoration projects; maintaining, supporting,
protecting, or moving equipment during Public Way work; determining the adequacy of Public Way
Restoration; restoring work inadequately performed; processing, maintaining, reviewing and
revoking Right-of--Way Permits; and performing all other tasks required by this Chapter, including
other costs the City may incur in managing the provisions of this Chapter.
"City Property" means and includes all real property owned in fee or leased by the City, other than
Public Ways, and all property held in a proprietary capacity by the City, including but not limited
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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.
"Communications "means the transmission via the Facilities, in whole or in part, between or among
points specified by the user, of information of the user's choosing (e.g., data, video, voice), without
change in the form or content of the information as sent and received, regardless of the statutory or
regulatory scheme to which such transmissions maybe subject.
"Communications Carrier" means and includes every Person that directly or indirectly owns,
controls, operates or manages any Communications Facilities within the City.
"Communications Facilities "mean the structures, equipment and property, including but not limited
to, cables, wires, lines, towers, wave guides, optic fiber, conduits, ducts, pedestals, antennae,
electronics and any converters and other equipment and/or appurtenances, used or to be used or
designed and constructed to produce, transmit, receive, distribute, offer, amplifyor otherwise provide
Communications Service.
"Communications Provider" means and includes every Person who provides Communications
Service who is not a Communications Carrier under this Chapter.
"Communications Service" means the transmission of any writings, signs, signals, pictures, sounds
or other forms of intelligence through wire, wireless or other means, including, but not limited to,
any "telecommunications service," "enhanced service," "information service," or "Internet service,"
as such terms are now, or may in the future be, defined hereunder or under federal law, and including
all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding,
and delivery of telecommunications) incidental to such transmission. This term does not include
"cable television service," but these services shall be subject to separate cable franchising
requirements and application.
"Constr-ifetion Permit" means the permit which, pursuant to this Chapter, must be obtained before
a Person may Install, Excavate and/or Obstruct the Public Way in connection with Facilities.
"Construction Permittee"means any Person to whom a Construction Permit has been granted by
the City under this Chapter.
"Emergency " means a condition that (1) poses a clear and immediate danger to life or health, or of
a significant loss of property; or (2) requires immediate repair or replacement in order to restore
service to a customer and City offices are not open.
"Excavate" or "Excavation" means to dig into or in any way remove or physically disturb or
penetrate any part of a Public Way, except horticultural practices of penetrating the boulevard area
to a depth of less than 12 inches.
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"Excess Capacity "means the remaining volume or capacity in any existing or future duct, conduit,
manhole, handhold or other utility facility within the Public Way that is or will be available for use
of Communications Facilities.
"Extraordinary Circumstances"mean 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.
"Facilities" mean the structures, equipment and property, and all appurtenances, including all
Communications Facilities, of Persons located within the Public Way; but shall not include
boulevard plantings or gardens planted or maintained within the Public Way between a Person's
property and the street curb.
"FCC" means the Federal Communications Commission or other Federal administrative agency,
or lawful successor, authorized to regulate and oversee Communications Carriers, Services and
Providers on a national level.
"Gross Revenues "means all revenues received directly or indirectly by such Person or its Affiliates
for Communications Services originating, terminating or otherwise rendered via Facilities, in whole
or in part, within the corporate limits of the City and all revenue derived in any manner from the
Facilities. Except to the extent as may be prohibited by law, such "Gross Revenues" shall
specifically include, but shall not be limited to, all revenue derived from the following:
1. Recurring local exchange service revenues for business and residence which include basic
telephone exchange service, Touch Tone, Custom Calling Services and measured local calls;
2. Recurring local exchange service revenues for public, semi-public and private coin;
3. Local directory assistance (411);
4. Line status verification;/busy interrupt;
5. Local operator assistance;
6. Information delivery service;
7. Cellular and other wireless communication services revenue; provided that such revenues
derive from a system having antennae or other parts of the mobile system are physically
located within the Public Ways;
8. Nonrecurring local exchange service revenue which shall include customer service for
installation of lines, reconnection of service and charge for duplicate telephone bills;
9. Revenue received from Reseller Service Providers;
10. Internet access charges or services and including all high-speed and traditional subscriber
line charges or services (and including Cable Internet Service, unless such service revenues
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are validly included and collected as Gross Revenues in a Cable Agreement between such
Person and the City);
11. Revenue from rent, physical use, collocation, or sale of the Facilities, network elements, or
a portion thereof for any purpose;
12. Late charges or interest received on gross receipts;
13. Any portion of the User Fees collected from any person;
14. All other applicable revenues not listed herein.
Gross Revenues shall not include uncollectible debt, any federal, state or local taxes separately stated
on a customer's bill. Gross Revenues shall not include revenues from Affiliates where the Affiliates
have a separate enforceable agreement with the City providing for payment of such Affiliate's Gross
Revenues or where the Affiliate does not utilize, transmit communications through, or connect to
any part of the Facilities. In the event revenues received for Communications Services or other
activities within and without the City of which the specific portion attributed to operations in the
City cannot be directly determined ("Unallocated Revenues"), Gross 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 Gross Revenues from the City and the denominator of which is the total
revenues attributable from the area generating such Unallocated Revenues. All revenue from or
relating to or connected with Communication Services deriving from any billing address within the
City shall be presumed to be Gross Revenues, unless demonstrated in writing to the contrary as to
each such revenue.
"Install "means to construct or install Facilities within the Public Way.
"Linear Foot" means 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 4" 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.
"Local Representative " means a local Person, or designee of such Person authorized by a Registrant
to accept service and to snake decisions for that Registrant regarding all matters within the scope of
this Chapter.
"Obstruct" means to place any tangible object within a Public Way so as to hinder free and open
passage over that or any part of the Public Way.
"Open Video Services "means any video programming Communications Services provided to any
person by a Person certified by the FCC to operate an Open Video System pursuant to Section 47
U.S.C. 573, as may be amended, regardless of the Facilities used.
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"Overhead Facilities" mean Utility Facilities and Communications Facilities located above the
surface of the ground, including the underground supports and foundations for such facilities.
"Person "means and includes individuals, corporations, trusts, companies, associations, joint stock
companies or associations, firms, partnerships, limited liability companies and any other entity and
includes their successors and assigns and sublessees and sublessors, but shall not include the City.
`Probation "means the status of a Person that has not complied with the conditions of this Chapter.
Probationary Period "means one year from the date that a Person has been notified in writing that
they have been put on Probation.
`Public Street" means 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 vehicular travel purposes not inconsistent with Facilities.
"Public Way" means and includes the surface and space on, above and below all Public Streets,
Utility Easements, bicycle lanes, public sidewalk and other public rights-of--way, now or hereafter
dedicated or owned by the City, but only to the extent of the City's right, title, interest or authority
to grant a permit to occupy and use such Public Way for Facilities; provided, however, this term shall
not include City Property.
"Public Ways Inspector" means the City Administrator and any other person authorized by the
Administrator to carry out inspections related to the provisions of this Chapter.
`Public Ways Use Permit" means a use permit granted pursuant to Article 5 of this Chapter.
"Public Ways Use Permittee "means any Person ranted a Public Ways Use Permit pursuant to this
Chapter.
"Registrant" means anyperson who (1) has or seeks to have its Facilities located within any Public
Way, (2) in any way occupies or uses, or seeks to occupy or use, any Facilities within the Public
Ways, (3) seeks to Excavate, Obstruct or Install within any Public Way in connection with the
Facilities, or (4) provides or seeks to provide Communications Services to Persons within the City.
"Repair" means the temporary construction work necessary to make the Public Way useable for
travel.
"Reseller Service Provider" means a Communications Provider providing service within the City
that does not have ownership, possessory interest, or control of Facilities in the Public Way, but
instead uses the Public Way by interconnecting with or using the network elements of a Public Ways
Use Permittee utilizing the Public Way, and/or by leasing excess capacity from a Public Ways Use
Permittee.
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"Restoration Bowl " means 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.
"Restore" or "Restoration" means the process by which a Public Way and surrounding area,
including pavement and foundation, is returned to the same condition that existed before the
commencement of the work under a Constriction Permit.
"Restoration Cost" means the cost of Restoration.
"Right-of--Way Permit"means collectively or individually, the Construction Permit and/or the Public
Ways Use Permit, depending on the context, required by this Chapter.
"Service" or "Utility Service "includes but is not limited to (1) those services provided by a public
utility, and (2) communications, pipeline, community antenna television, fire and alarm
communications, water, electricity, light, heat, cooling energy, or power services.
"State" means the State of Missouri.
`Supplementary Application "means an application made to Excavate or Obstructor Install within
or use more of the Public Way than allowed in, or to extend aRight-of--Way Permit that had already
been issued.
°Surplus Space" means 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.
"Telecommunications Service" means the providing or offering for rent, sale or lease, or in exchange
for other value received of any kind, of the transmittal of voice, data, image, graphic and/or video
programming information or other services between or among points by wire, cable, fiber optics,
laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed
transmission medium.
"Underground Facilities" mean Utility Facilities and Facilities located under the surface of the
ground, excluding the underground foundations or supports for Overhead Facilities.
"Usable Space" means the total distance between the top of a pole and the lowest possible
attachment point that provides the minimum allowable vertical clearance as specified in the
applicable orders and regulations.
"User Fee" is the sum of money payable to the City by a Public Ways Use Permittee; provided,
however, that the City may at its option provide, at any time by Ordinance or by amendment thereto,
for a greater or different fee in an amount and by a method of determination as may be further
provided in such Ordinance or amendment thereto. Such User Fee is a fee paid for the rights granted
pursuant to the Public Ways Use Permit.
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"Utility Easement" means any easement acquired, established, dedicated or devoted for general
public utility purposes not inconsistent with Facilities.
"Utility Facilities "mean the plant, equipment and property, including but not limited to the poles,
pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the
surface of the ground within the Public Ways and used or to be used for the purpose of providing
utility or other service.
"Within "means over, above, in, within, on or under a Public Way.
Section 1.4: Construction Permit: Any Person who desires to Excavate, Obstnict or Install within
any Public Way in connection with Facilities shall first obtain a Construction Permit from the City
pursuant to Article 4 of this Chapter.
Section 1.5: Public Ways Use Permit: Any Person who desires to use, operate, maintain, or
otherwise locate Facilities within any Public Way shall first obtain from the City a Public Ways Use
Permit granting the use of such Public Ways pursuant to Article 5 of this Chapter.
Section 1.6: [Reserved for Future Use]
Section 1.7: Cable Television Franchise: Any Communications Carrier who desires (i) to
construct, install, operate, maintain or locate Communications Facilities within any Public Way for
the purpose of providing Cable Service and/or (ii) to provide such Cable Service to persons in the
City shall first obtain a cable franchise from the City.
Section 1.8: Application to Existing Agreements: 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:
1.8.1: The expiration of the existing agreement; or
1.8.2: An amendment to an unexpired agreement, unless both parties agree to defer full compliance
to a specific date not later than the present expiration date.
Section 1.9: Penalties: 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.
Section 1.10: Other Remedies: 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.
Section 1.11: Reservation of Regulatory and Police Powers: The City by the granting of any
Right-of--Way Permit or by registering or licensing a Person under this Chapter does not surrender
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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 Public Ways; and each Public Ways Use Permittee, Registrant and licensee by its acceptance
ofaRfght-of--Way Permit or license or byregistering under this Chapter agrees that all lawful powers
and rights, regulatory power, or police power, or otherwise as are or the same maybe 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 Public Ways Use Permittee, Registrant and licensee is deemed
to acknowledge that its rights are subj ect to the regulatory and police powers of the City to adopt and
enforce general ordinances necessary to the safety and welfare of the public.
Section 1.12: No Liability: 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 aRight-of--Way Permit or license.
Section 1.13: Compliance With Other Laws: Obtaining a Construction Permit or a Public Ways
Use Permit or a license does not relieve Construction Permittee or Public Ways Use Permittee or
licensee of its duty to obtain all other necessary permits, licenses, and authority and 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.
Section 1.14: Severability: 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.
ARTICLE 2: Registration
Section 2.1: Purposes of Registration: The purpose of registration under this Article 2 is to:
2.L1: Provide the City with accurate and current information concerning the Communications
Carriers and Communications Providers who offer or provide Communications Service within the
City, Persons that own or operate Facilities within the Public Ways and Persons who desire to
occupy or use the Public Way.
2.1.2: Assist the City in enforcement of this Chapter.
2.1.3: Assist the City in collection and enforcement of municipal taxes, fees, and other charges that
maybe due the City.
2.1.4: Assist the City in monitoring compliance with Local, State and Federal laws.
Section 2.2: Registration Required: All Communications Carvers and Communications Providers
that offer or provide any Communications Service either (i) within the City or (ii) without the City
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from Communications Facilities within the City, and all Persons who occupy, use or seek to occupy
or use any Facility within the Public Ways or who has or seeks to have Facilities within any Public
Way, shall register with the City pursuant to this Article. No Right-of--Way Permit or license will
be issued unless such Person is first registered with the City. A Person registers with the City by
filing a registration statement which shall include the following:
2.2.1: The name, address, telephone and facsimile numbers, and legal status of the Registrant,
including any Affiliates.
2.2.2: The name, address and telephone and facsimile numbers of the officer, agent or employee
responsible for the accuracy of the registration statement.
2.2.3: The name, address and telephone and facsimile numbers of the Local Representative who
shall be available at all times.
2.2.4: A brief description of Registrant's existing and/orproposed Facilities within the Public Ways,
if any.
2.2.5: A briefdescription of the Communications Service or other service that the Registrant intends
to offer or provide, or is currently offering or providing, to any Person within the City.
2.2.6: Information sufficient to determine whether the Registrant is subject to Public Waypermitting
under this Chapter.
2.2.7: Information evidencing compliance with all applicable insurance requirements.
2.2.8: Information sufficient to determine that the Applicant has applied for and received all permits,
licenses and other approvals required pursuant to the Code.
2.2.9: Such other information as the Administrator may reasonably require.
Section 2.3: Registration Fee: Each application for registration under this Article shall be
accompanied by a fee as set forth in Article 7.
Section 2.4: Notice of Changes: Each Registrant shall keep all of the information listed above
current at all times; any and all changes shall be reported within thirty (30) days following the date
on which the Registrant knowledge of any change.
Section 2.5: Duty to Provide Information: Within ten (10) days of a written request from the
Administrator, each Registrant shall furnish the City with information sufficient to demonstrate:
2.5.1: That Registrant has complied with all requirements of this Chapter and the City's Municipal
Code of Ordinances.
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2.5.2: That all municipal fees, including but not limited to sales, message and/or communications
fees due the City in connection with Facilities, including Communications Facilities and/or
Communications Services, have been properly collected and paid to the City.
2.5.3: All books, records, maps and other documents, maintained by Public Ways Use Pennittee or
licensee with respect to its Facilities within the Public Ways and/or Communications Services, as
the case maybe, shall be made available at the City offices for inspection by the City at reasonable
times and intervals upon the City's request.
ARTICLE 3: [Reserved for Future Use]
ARTICLE 4: Construction Permits
Section 4.1: Construction Permit Requirement: Except as otherwise provided in this Chapter,
no Person may Obstruct, Excavate or Install Facilities within any Public Way without having a valid
Construction Permit to do so.
4.1.1: A Construction Permit which expressly allows for (i) Excavation is required for a Person who
Excavates any Public Way in connection with Facilities, (ii) Obstruction is required for a Person who
hinders free and open passage over portion(s) of Public Way in connection with Facilities, and (iii)
for Installation is required for a Person who Installs Facilities within the Public Way.
4.1.2: All Construction Permits allow Obstruction, Excavation and/or Installation only to (i) the
extent described therein, (ii) for the duration described therein, (iii) that part of the Public Way
described therein, and (iv) for the Facilities described therein.
Section 4.2: Permit Extensions: No Person may Excavate or Obstruct or perform Installation
within the Public Way beyond the date or dates specified in the permit unless such Person (i) makes
a Supplementary Application for another Construction Permit before the expiration of the initial
permit, and (ii) a new permit or permit extension is granted.
Section 4.3: Permit Applications: Application for a Construction Permit is made to the
Administrator. Construction Permit applications shall contain, and will be considered complete only
upon submission of a completed permit application form showing compliance with the requirements
of the following provisions:
4.3.1: Registration and licensing with the City pursuant to this Chapter.
4.3.2: No permit shall be issued for the Installation of Facilities within the Public Way unless a
Public Ways Use Permit has been issued pursuant to Article 5 of this Chapter.
4.3.3: That the Facilities will be constructed in accordance with all applicable codes, rules and
regulations.
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Section 4.4: Issuance of Permit; Conditions:
4.4.1: No later than forty-five (45) days after submission of all plans and documents required of the
Applicant and payment of the permit fees required by this Chapter, the Public Ways Inspector, if
satisfied that the applications, plans and document comply with all requirements of this Chapter,
shall inform the Administrator of such finding; provided, however, the Public Ways inspector shall
use reasonable efforts to make such determination within twenty (20) days ifthe Construction Permit
is sought for maintenance, non-emergency repairs or a minor extension ofFacilities already in place.
4.4.2: If the Administrator then determines that the Applicant has satisfied the requirements of this
Chapter, the Administrator may issue a permit.
4.4.3: The Administrator may impose reasonable conditions upon the issuance of the permit and the
performance of the Applicant thereunder to protect the public health, safety and welfare, to ensure
the structural integrity of the Public Way, to protect the property and safety of other users of the
Public Way, and to minimize the disruption and inconvenience to the traveling public.
Section 4.5: Joint Applications: The City encourages Public Ways Use Permittees to jointly apply
for permits to Excavate or Obstruct or Install within the Public Way at the same place and time in
order to minimize disruption and degradation to the Public Ways.
Section 4.6: Supplementary Applications:
4.6.1: A Construction Permit is valid only for the area of the Public Way specified in the permit.
No Construction Permittee may do any work outside the area specified in the permit, except as
provided herein. Any Construction Permittee which determines that an area greater than that
specified in the permit must be Obstructed or Excavated or Installed within or is otherwise necessary
must before working in that greater area (i) make application for a permit extension and pay any
additional fees required thereby, and (ii) be granted a new permit or permit extension.
4.62: A Construction Permit is valid only for the dates specified in the permit. No Construction
Permittee may begin its work before the permit start date or, except as provided herein, continue
working after the end date. If a Construction Permittee does not finish the work by the permit end
date, it must apply for a new permit for the additional time it needs, and receive the new permit or
an extension of the old permit before working after the end date of the previous permit. This
Supplementary Application must be done before the permit end date.
Section 4.7: Denial of Permit:
4.7.1: Mmzdatory Denial: Except in an Emergency, no Construction Permit will be granted:
(a) to any Person required by this Chapter to be registered and/or licensed who
has not done so;
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(h) the condition and age of the Public Way, and whether and when it is
scheduled for total or partial reconstruction; and
(i) the balancing ofthe costs ofdisruption to the public and damage to the Public
Way, against the benefits to that part of the public served by the expansion into
additional parts of the Public Way.
Section 4.8: Work Done Without a Permit:
4.8.1: Emerge~zcy Situations: Each Person shall immediately notify the Administrator and, if City
offices are not open, the Police Department of any event regarding its Facilities which it considers
to be an Emergency. The Person may proceed to take whatever reasonable actions are necessary to
directly respond to the Emergency. On the first business day after the occurrence of the Emergency,
the Person shall apply for the necessary permits, pay the fees associated therewith and fulfill the rest
of the requirements necessary to bring itself into compliance with this Chapter for the actions it took
in response to the Emergency. If the Administrator becomes aware of an Emergency regarding a
Person's Facilities, the Administrator may attempt to contact the Local Representative of each Person
affected, or potentially affected, by the Emergency. In any event, the Administrator may take but is
not required to take whatever action it deems necessary to respond to the Emergency, the cost of
which shall be borne by the Person whose Facilities occasioned the Emergency or were involved in
the Emergency.
4.8.2: No~z-Emergency Sitiratio~a: Except in an Emergency, any Person who, without first having
obtained the necessary permit, Obstructs or Excavates or Installs within a Public Way must
subsequently and immediately obtain a permit, and pay double the normal fee for said permit, deposit
with the Administrator the fees necessary to correct any damage to the Public Way and comply with
all of the requirements of this Chapter; provided, however, taking such subsequent actions shall in
no way limit such Person's liability for any failure to comply with this Chapter or restrict the City's
exercise of any and all additional remedies and actions available to the City for any failure to comply
with the requirements of this Chapter.
Section 4.9: Supplementary Notification: If work pursuant to a Construction Permit begins later
or ends sooner than the date given on the permit, Construction Permittee shall notify the
Administrator of the accurate information as soon as this information is known.
Section 4.10: Revocation of Permits:
4.10.1: Substantial Breaclz: Persons hold permits issued pursuant to this Chapter as a privilege and
not as a right. The City reserves its right, as provided herein, to revoke any Construction Permit,
without a fee refund, if there is a substantial breach of the terms and conditions of any statute,
ordinance, rule or regulation, or any condition of the permit. A substantial breach by Construction
Permittee shall include, but shall not be limited to, the following:
(a) The violation of any provision of the Construction Permit or this Chapter;
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(b) An evasion or attempt to evade any material provision of the Construction
Permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City
or its residents;
(c) Any material misrepresentation of fact in the application for a Construction
Permit;
(d) The failure to complete the work in a timely manner; or
(e) The failure to correct a condition indicated on a notice issued pursuant to this
Article.
4.10.2: Written Notice of Breach: If the Administrator determines that Constriction Permittee has
committed a substantial breach under section 4.10.1, the Administrator shall make a written demand
upon Construction Permittee to remedy such violation. The demand shall state that continued
violations may be cause for revocation of the permit. Further, a substantial breach will allow the
Administrator, at his or her discretion, to place additional or revised conditions on the permit.
4.10.3: Response to Notice of Breac/:: Within three business days of receiving notification of the
breach, Construction Permittee shall contact the Administrator with a plan, acceptable to the
Administrator, for its correction. Construction Permittee's failure to so contact the Administrator,
or Construction Permittee's failure to submit an acceptable plan, or Constriction Permittee's failure
to reasonably and promptly implement the approved plan, shall be cause for immediate revocation
of the permit. Further, Construction Permittee's failure to so contact the Administrator, or
Construction Permittee's failure to submit an acceptable plan, or Construction Permittee's failure to
reasonably and promptly implement the approved plan, shall, unless good cause is shown by
Permittee, automatically place Construction Permittee on Probation for one full year.
4.10.4: Cause for Probation: From time to time, the Administrator may establish a list of
conditions of the permit, which if breached will automatically place Construction Permittee on
Probation for one full year.
4.10.5: Automatic Revocation: If a Construction Permittee, while on Probation, commits a
substantial breach which is not remedied as required by Section 4.10.3, Construction Permittee's
permit will automaticallybe revoked and Construction Permittee will not be allowed further permits
for one full year, except for Emergency Repairs.
4.10.6: Reimbursement of City Costs: If a permit is revoked, Construction Permittee shall also
reimburse the City for the City's reasonable costs, including Restoration Costs and the costs of
collection and reasonable attorneys' fees, incurred in connection with such revocation.
4.10.7: Hearing: A Construction Permittee may request, in a writing filed with the Administrator
within five business days of receiving notice of the revocation of a Construction Permit, that the
Board consider such matter and reinstate the Construction Permit.
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ARTICLE 5: Public Ways Use Permit
Section 5.1: Public Ways Use Permit: A Public Ways Use Permit shall be required of any Person
who desires to occupy or use specific Public Ways of the City for Facilities including but not limited
to Communication Facilities located within aPublic Way, including all Communication Carriers and
Communication Providers.
Section 5.2: Public Ways Use Permit Application: Any Person required to obtain a Public Ways
Use Permit pursuant to this Article shall file an application with the City which shall include the
following information:
5.2.1: The name of the Public Ways Use Permit Applicant, including all Affiliates.
5.2.2: A brief description of the services, including Communication Services, that is or will be
offered or provided by Public Ways Use Permittee.
5.2.3: A brief description of the transmission medium that will be used by Public Ways Use
Permittee to offer or provide such services, including Communications Services.
5.2.4: For proposed Facilities, preliminary engineering plans, specifications and a network map of
the Facilities to be located within the Public Ways, all in sufficient detail to identify:
(a) the location and route requested for Applicant's proposedFacilities within the
Public Ways.
(b) the location of all overhead and underground public utility, communication,
cable, water, sewer drainage and other Facilities within the Public Way along the
proposed route.
(c) the location(s), if any, for interconnection with the Facilities of others
including other Communications Carriers within the Public Ways.
(d) the specific trees, structures, improvements, facilities and obstructions, if any,
that applicant proposes to temporarily or permanently remove or relocate.
5.2.5: If the Applicant is proposing to install Overhead Facilities, evidence that Surplus Space is
available for locating the Facilities, including Communications Facilities, on existing utility poles
along the proposed route.
5.2.6: If the Applicant is proposing an underground installation in existing ducts or conduits within
thePublic Ways, information in sufficient detail to identify such existing ducts or conduits including:
(a) the Excess Capacity currently available in such ducts or conduits before
installation of the Facilities, including Communications Facilities;
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(b) the Excess Capacity, if any, that will exist in such ducts or conduits after
installation of the Facilities, including Communications Facilities.
5.2.7: If the Applicant is proposing an underground installation within new ducts or conduits to be
constructed within the Public Ways:
(a) the location proposed for the new ducts or conduits; and
(b) the Excess Capacity that will exist in such ducts or conduits after installation.
5.2.8: A preliminary construction schedule and completion date.
5.2.9: Financial statements prepared in accordance with generally accepted accounting principles
demonstrating the financial ability to construct, operate, maintain, relocate and remove the
Facilities.
5.2.10: Information in sufficient detail to establish the technical qualifications, experience and
expertise regarding the Facilities to be installed within the Public Ways.
5.2.11: Information to establish that the Applicant has obtained all other governmental approvals
and permits to construct and operate the Facilities and if applicable, to offer or provide the
Communications Services.
5.2.12: Whether the Applicant intends to provide cable service, video dialtone service or other video
programming service, and sufficient information to determine whether such service is subject to
cable franchising.
5.2.13: An accurate map showing the location of any existing Facilities in the Public Ways that
Applicant intends to own, use or lease.
5.2.14: A description of the services or facilities that the Applicant will offer or make available to
the City and other public, educational and governmental institutions.
5.2.15: A description of the Applicant's access and line extension policies.
5.2.16: The area or areas of the City the Applicant desires to serve and a schedule for build-out to
the entire area.
5.2.17: All fees, deposits or charges required pursuant to Article 7 of this Chapter.
5.2.18: Such other and further information as maybe required by the Administrator.
Section 5.3: Determination by the City: No later than 75 days after receiving a complete
application under Section 5.2, the Board shall issue a written determination granting or denying the
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application in whole or in part, applying the following standards. If the application is denied, the
written determination shall include the reasons for denial.
5.3.1: The financial and technical ability of the Applicant.
5.3.2: The legal ability of the Applicant.
5.3.3: The continuing capacity of the Public Ways to accommodate existing Facilities and the
capacity of the Public Ways to accommodate the proposed Facilities.
5.3.4: The capacity of the Public Ways to accommodate additional Utility Facilities,
Communications Facilities and other Facilities if the Public Ways Use Permit is granted.
5.3.5: The damage or disruption, if any, ofpublic or private facilities, improvements, service, travel
or landscaping if the Public Ways Use Permit is granted.
5.3.6: The public interest in minimizing the cost and disruption of construction within the Public
Ways.
5.3.7: The service that Applicant will provide to the community and region.
5.3.8: The effect, if any, on public health, safety and welfare if the Public Ways Use Permit is
granted.
5.3.9: The availability of alternate routes and/or locations for the proposed Facilities.
5.3.10: Applicable Federal and State laws, regulations and policies.
5.3.11: Such other factors as may demonstrate that the grant to use the Public Ways will serve the
community interest and public health, safety and welfare.
Section 5.4: Nonexclusive Grant: No Public Ways Use Permit granted under this Article shall
confer any exclusive right, privilege, license or franchise to occupy or use the Public Ways for the
location of Facilities, the delivery of services, including Communications Service, or any other
purposes. Further, each permit and license granted hereunder to use Public Ways is subordinate to
the City's use and rights therein.
Section 5.5: Rights Granted: No Public Ways Use Permit granted under this Article shall convey
any right, title or interest within the Public Ways, but shall be deemed a nonexclusive license only
to use and occupy the Public Ways for the limited purposes and term stated in the grant. Each Public
Ways Use Permit is granted to the Public Ways Use Permittee specified therein and may not be sold,
devised, conveyed or otherwise transferred in any manner whether voluntary, involuntary or by
operation of law. Further, no Public Ways Use Permit shall be construed as any warranty of title.
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(b) Each Public Ways Use Permittee shall, within one (1) year after the date of
passage of this Chapter, submit a plan to the Administrator specifying in detail the
steps it will take to comply with the requirements of this Section. Said plan shall
provide for the submission of all Mapping Data as early as inay be reasonable and
practical, but not later than five (5) years after the date of passage of this Chapter.
Notwithstanding the foregoing, Mapping Data shall be submitted by all Public Ways
Use Permittees for all Facilities which are to be installed or constructed within the
Public Way after the date of passage of this Chapter at the time any permits are
sought under this Code.
(c) After one (1) year after the passage of this Chapter, a new Public Ways Use
Pennittee, or a Public Ways Use Permittee which has not submitted a plan as
required above, shall submit complete and accurate Mapping Data for all its Facilities
within the Public Way at the time any permits are sought under this Chapter.
Section 5.10: Compensation to City: Each Public Ways Use Permit granted under this Article is
subject to the City's right, which is expressly reserved, to annually fix a fair and reasonable User Fee
to be paid for the rights granted to Public Ways Use Permittee.
Section 5.11: Amendment of Grant:
5.11.1: Anew or supplemental Public Ways Use Permit application and grant shall be required of
any Person that desires to extend or locate Facilities within Public Ways which are not included in
a Public Ways Use Permit previously granted to such Person under this Chapter.
5.11.2: If ordered by the City to locate or relocate its Facilities within Public Ways not included in
a previously granted Public Ways Use Permit, the City shall grant a Public Ways Use Permit
amendment for such location or relocation without further application provided Public Ways Use
Permittee is not in violation of any provision of this Chapter.
Section 5.12: Renewal Applications: A Public Ways Use Permittee that desires to renew its Public
Ways Use Permit under this Article shall, not more than 180 days nor less than 120 days before
expiration of the current Public Ways Use Permit, file an application with the City for renewal of
its Public Ways Use Permit which shall include the following information:
5.12.1: The information required pursuant to Section 5.2 of this Article.
5.12.2: Any information required pursuant to a Public Ways Use Permit agreement between the City
and Public Ways Use Permittee, if any.
Section 5.13: Renewal Determinations: Within 75 days after receiving a complete application
under Section 5.13, the Board shall issue a written determination granting or denying the renewal
application in whole or in part, applying the standards set forth in Section 5.3, the Applicant's
compliance with the requirements of this Chapter and its Public Ways Use Permit agreement, if any,
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and the continuing capacity of the Public Ways to accommodate the existing Facilities. If the
renewal application is denied, the written determination shall include the reasons for non-renewal.
Section 5.14: Obligation to Cure As a Condition of Renewal: No Public Ways Use Permit shall
be renewed until any and all ongoing violations or defaults in Public Ways Use Permittee's
performance of the Public Ways Use Permit agreement, or of the requirements of the City's
Municipal Code of Ordinances, have been cured, or a plan detailing the corrective action to be taken
by Public Ways Use Permittee has been approved by the City and Public Ways Use Permittee is
diligently pursuing such action.
Section 5.15: Transactions Affecting Control of Grant: Any transactions which singularly or
collectively result in a change often percent (10%) or more of the ownership or working control of
Public Ways Use Permittee, of the ownership or working control of a Public Ways Use Permit, of
the ownership or working control of Affiliates having ownership or working control of Public Ways
Use Permittee or of Facilities within the Public Ways, including Communications Facilities, or of
control of the capacity or conduit of Public Ways Use Permittee's Facilities within the Public Ways,
including Communications Facilities or parts thereof, shall be considered a transfer hereunder.
Section 5.16: Revocation or Termination of Grant: A Public Ways Use Permit granted by the
City pursuant to this Article may be revoked for reasonable cause including but not limited to the
following reasons:
5.16.1: Construction or operation in the City or within the Public Ways without a Public Ways Use
Permit or other grant of authority.
5.16.2: Construction or operation at an unauthorized location.
5.16.3: Misrepresentation or lack of candor by or on behalf of a Public Ways Use Permittee in any
application to the City.
5.16.4: Failure to pay taxes, compensation, fees or costs when and as due the City.
5.16.5: Violation of this Chapter or any other requirement of the Code.
5.16.6: Violation of the material terms of a Public Ways Use Permit agreement.
Section 5.17: Notice and Duty to Cure: If the Administrator believes that grounds exists for
revocation of a Public Ways Use Permit, the Administrator shall give Public Ways Use Permittee
written notice of the apparent violation or noncompliance, providing a short and concise statement
of the nature and general facts of the violation or noncompliance, and providing Public Ways Use
Permittee a reasonable period of time not exceeding thirty (30) days to furnish evidence:
5.17.1: That corrective action has been, or is being actively and expeditiously pursued, to remedy
the violation or noncompliance.
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5.17.2: That no violation or noncompliance has occurred.
5.17.3: That it would be in the public interest to impose some penalty or sanction less than
revocation.
Section 5.18: Hearing: If Public Ways Use Permittee fails to provide evidence reasonably
satisfactory to the Administrator as provided, the Administrator shall refer the apparent violation or
noncompliance to the Board. The Board shall provide Public Ways Use Permittee with notice and
a reasonable opportunity to be heard concerning the matter.
Section 5.19: Standards for Revocation or Lesser Sanctions: If persuaded that any Public Ways
Use Permittee has violated or failed to comply with this Chapter, or any use permit agreement, the
Board shall determine whether to revoke the use permit, or to establish some lesser sanction and
cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one
or more of the following factors:
5.19.1: Whether the misconduct was egregious.
5.19.2: Whether substantial harm resulted.
5.19.3: Whether the violation was intentional.
5.19.4: Whether there is a history of prior violations of the same or other requirements.
5.19.5: Whether there is a history of overall compliance.
5.19.6: Whether the violation was voluntarily disclosed, admitted or cured.
ARTICLE 6: Cable Franchise
Section 6.1: Cable Franchise: Every Cable Operator and any other Person wishing to provide
Cable Service within the City shall obtain a franchise from the City pursuant to the City's Cable
Communications Code.
Section 6.2: Cable Communications: To the extent the City's Cable Communications Code, as it
applies to Cable Operators, directly conflicts with the provisions of this Chapter, and such conflict
cannot be reconciled, the Cable Communications Code shall govern.
ARTICLE 7: Fees and Compensation
Section 7.1: Purpose: It is the purpose of this Article to provide for the payment and recovery of
all direct and indirect costs and expenses of the City related to the enforcement and administration
of this Chapter as well as fair and reasonable compensation for the use of Public Ways.
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Section 7.2: Registration Fee: Each application for registration under Article 2 shall be
accompanied by a nonrefundable fee of One H~mdred Dollars ($100.00).
Section 7.3: [Reserved for Future Use]
Section 7.4: [Reserved for Future Use]
Section 7.5: Public Ways Use Permit Application Fee: As a part of its application submission for
a Public Ways Use Permit, each Applicant shall pay a nonrefundable application fee of Two
Thousand Five Hundred Dollars ($2,500.00). If Applicant submits its Registration Statement
simultaneously with its Public Ways Use Permit Application, the Registration Fee maybe credited
against the application fee due under this Section.
Section 7.6: Other City Costs: Each Person shall, within ten (10) days after written demand
therefor, reimburse and/or, at the City's sole option, provide a deposit to the City for all direct and
indirect costs and expenses incurred or to be incurred by the City in connection with the City's
consideration of anymodification, amendment, renewal or transfer of an application, permit, license
or Right-of--Way Permit.
Section 7.7: Construction Permit Fees:
_---
~: _
7":7.1: Prior t~ issuance of a Construction Permit, Construction Permittee shall pay a permit fee of
i
(;, $73:611 plus-an-arneunt determined in accordance with Schedule I.
~}l .
~_ _ -- '" 7.7.2: No Construction Permit shall be issued without payment of such fees before the issuance of
such permit. All permit fees shall be doubled during a Probationary Period. All permit fees are
nonrefundable.
Section 7.8: User Fees:
7.8.1: Fees: Unless otherwise provided, each Public Ways Use Permittee shall pay to the City as
monthly compensation for the use of the Public Way a Public Ways User Fee equal to the greater
of:
7.8.1.1: 5% percent of monthly Gross Revenues; or
7.8.1.2: $1,000 for the first mile of linear Facilities, or part thereof, plus $0.16 per
Linear Foot thereafter plus $100 for each Antenna in the Public Way up to a
maximum charge under this subsection 7.8.1.2 of $5,000.
Provided that Public Ways Use Permittee shall be entitled to a credit against the User Fee due
hereunder equal to the payment(s) made to and received by the City from such Public Ways Use
Permittee for the same time period for the gross receipts tax on Public Ways Use Permittee's
Communications Services; provided, however, such credit cannot exceed the amount due wider this
Subsection and may not be carried forward or back to any other time period.
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7.8.2: Bundled Services: Public Ways Use Permittee expressly acknowledges and agrees that to the
extent it markets "bundled" services, including combination of services that may be subject to this
Chapter and also a Cable Television Services Franchise, it will fairly reflect to the City an
appropriate and reasonable division of services among the various services offered based on the
actual value of each separate service. Whether or not Public Ways Use Permittee separates services
on a Subscriber's bill, it will provide to the City the amounts upon which it will pay the User Fee and
any other applicable taxes or fees based on the provision of communications service, and the
amounts upon which it will pay the Cable Television Services 5% User Fee. Should Public Ways
Use Permittee engage in billing practices that, in the determination of the City, do not fairly reflect
an appropriate split of Communications Services and Cable Television Services the City will notify
Public Ways Use Permittee in writing of its determination.
7.8.3: Timing of Payment of User Fees: Unless otherwise agreed to in writing, all Public Ways
User Fees shall be due and payable on a monthly basis within 60 calendar days of the close of each
month for which the payment applies (the "due date").
7.8.4: Interest ofLate Payments aizd Ui:der Payments: If any Public Ways User Fee, or any portion
thereof, is not postmarked or delivered on or before the due date, interest thereon shall accrue from
the due date until received, at the rate of one and one half percent per month or at such other
maximum rate as maybe allowable by Missouri law.
7.8.5: Fee Statement: Each Public Ways User Fee payment shall be accompanied by a statement
showing the manner in which the Public Ways User Fee was calculated. If any Fee Statement is
determined to understate the User Fee owed, then such additional amount owed shall be made with
a corrected statement, including interest on said amount as provided herein. Within 90 calendar days
following the end of the calendar year, each Public Ways Use Permittee shall submit a statement,
certified as true, setting forth its Gross Revenues, the amount of Linear Foot and Antennae within
the Facilities, and describing what revenues or receipts were included and excluded in the fee
calculations for the calendar year, and describing any adjustments made in determining the User Fee.
7.8.6: No Accord med Satisfaction: No acceptance by the City of any User Fee or any other payment
shall be construed as an accord that the amount paid is in fact the correct amount, nor shall
acceptance of any User Fee or any other payment be construed as a release of any claim of the City.
7.8.7: Maintain Records: Public Ways Use Permittee shall at all times maintain complete and
accurate books of account and records of the business, ownership, and operations ofthe Public Ways
Use Permittee with respect to the Facilities in a manner that allows the City to determine whether
the Public Ways Use Permittee has properly calculated its User Fee in compliance with this Chapter.
Should the City reasonably determine that the records are not being maintained in such manner, the
Public Ways Use Permittee shall correct the manner in which the books and/or records are
maintained so that the Public Ways Use Permittee comes into compliance with this Section. All
financial books and records which are maintained in accordance with FCC regulations and the
regulations of any governmental entity that regulates utilities in Missouri, and generally accepted
accounting principles shall be deemed to be acceptable under this Section. Such books and records
shall be maintained for a period of at lease three years.
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7.8.8: Riglzt oflnspection: The City or its designated representatives shall have the right to inspect,
examine or audit, during normal business hours and upon reasonable notice, all documents, records
or other information that pertains to the Facilities within Public Ways and/or Public Ways Use
Permittee's User Fee obligations. In addition to access to the records of Public Ways Use Permittee
for audits, upon request, Public Ways Use Permittee shall provide reasonable access to records
necessary to verify compliance with the terms of this Chapter.
Section 7.9: Compensation for City Property: The City may, in its sole and absolute discretion,
grant rights to use City Property. If the right is granted, by lease, license, use permit, franchise or
other manner, to use and occupy City Property for the installation of Facilities, the compensation to
be paid shall be fixed by the City.
Section 7.10: Fees and Compensation Not a Tax: The fees and costs provided for in this Article,
and any compensation charged and paid for the Public Ways provided for in this Chapter, are
separate from, and additional to, any and all federal, state, city or other local taxes as may be levied,
imposed or due.
ARTICLE 8: Conditions of Grant
Section 8.1: Location of Facilities:
8.1.1: The location and plans of all Facilities within the Public Ways shall be subject to the review
of the City Engineer.
8.1.2: The Administrator may assign specific corridors within the Public Way, or any particular
segment thereof as may be necessary, for each type of Facility that is or, pursuant to current
technology, the Administrator expects will someday be located within the Public Way. All
Construction Permits and other permits issued by the Administrator involving the Installation or
replacement of Facilities shall designate the proper corridor for the Facility at issue. Any Person
whose Facility is within the Public Way in a position at variance with the corridors established by
the Administrator shall, no later than at the time of the next reconstruction or excavation of the area
where its Facility is located, move thatFacility to its assigned position within the Public Way, unless
this requirement is waived by the Administrator for good cause shown, upon consideration of such
factors as the remaining economic life of the facilities, public safety, customer service needs and
hardship to such Person.
8.1.3: Unless otherwise specified in a use permit agreement, all Facilities shall be constructed,
installed and located in accordance with the following terms and conditions:
8.1.3.1: Communication Facilities shall be installed within an existing underground duct
or conduit whenever Excess Capacity exists within such Facility.
8.1.32: A Public Ways Use Permittee with permission to install Overhead Facilities shall
install its Communications Facilities on pole attachments to existing utility poles only, and
then only if Surplus Space is available.
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8.1.3.3: Whenever any existing electric utilities, cable facilities or Communications Facilities
are located underground within a Public Way, a Public Ways Use Permittee with permission
to occupy the same Public Way must also locate its Facilities underground.
Section 8.2: Nuisance: One year after the passage of this Chapter, any Facilities found within a
Public Way that has not been registered or for which an agreement with the City is not in effect shall
be deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity,
including, but not limited to, abating the nuisance or taking possession of the Facility and restoring
the Public Way to a useable condition.
Section 8.3: Maintenance of Facilities: Each Public Ways Use Permittee shall maintain all of its
Facilities in good and safe condition and in a manner that complies with all applicable Federal, State
and local requirements.
Section 8.4: Relocation or Removal of Facilities:
8.4.1: Request by the City: Notwithstanding any to the contrary contained herein, within thirty (30)
days following written notice from the City, a Person shall, at its own expense, temporarily or
permanently remove, relocate, change or alter the position of any Facilities within the Public Ways
whenever it is determined by the City, in its sole discretion, that such removal, relocation, change
or alternation is reasonably necessary for:
(a) The construction, repair, maintenance or installation of any City or other
public improvement within the Public Ways.
(b) The operations of the City or other governmental entity within the Public
Ways.
(c) The vacation of a public street or release of a utility easement.
(d) Any other lawful purpose.
8.4.2: Requests of Private Parties: Whenever a private party, including Communication Providers
and utility companies, requests a Public Ways Use Permittee to raise, lower, remove, relay and/or
relocate its Facilities, Public Ways Use Permittee shall not unreasonably refuse to raise, lower,
remove, relay and/or relocate those Facilities. Unless otherwise required by law, the private party,
including Communication Providers and utility companies, requesting the change shall bear the
reasonable cost of raising, lowering, removing, relocating and/or relaying the Facilities and a Public
Ways Use Permittee may require the payment of a reasonable predetermined cost for the requested
action prior to commencing work.
Section 8.5: Discontinued Operations: A Person who has determined to discontinue or
discontinues its operations or Facilities in all or part of the City must either:
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8.5.1: Provide information satisfactory to the Administrator that the Facilities within the Public
Ways will be properly transferred to another Public Ways Use Permittee holding a Public Ways Use
Permit for such Facilities; or
8.5.2: Submit to the Administrator a proposal and instruments for transferring ownership of its
Facilities to the City. If a Person proceeds under this clause, the City may, at its option:
(a) purchase the Facilities; or
(b) require such Person, at its sole expense, to remove the Facilities; or
(c) require such Person to post a bond in an amount sufficient to reimburse the
City for reasonably anticipated costs to be inettrred in removing the Facilities.
Section 8.6: Removal of Unauthorized Facilities: Within thirty (30) days following written notice
from the City, any Person that owns, controls or maintains any unauthorized Facility or related
appurtenances within the Public Ways shall, at its own expense, remove such Facilities and/or
appurtenances from the Public Ways. A Facility is unauthorized and subject to removal in the
following circumstances:
8.6.1: Upon expiration or termination of a Public Ways Use Permit.
8.6.2: Upon abandonment of a Facility within the Public Ways.
8.6.3: Upon the City's exercise of the option set forth in Section 8.5.2(2).
8.6.4: If the Facility was Installed without the prior grant of a Public Ways Use Permit.
8.6.5: If the Facility was Installed without the prior issuance of a required Construction Permit.
8.6.6: If the Facility was Installed at a location not permitted by the Public Ways Use Permit.
Section 8.7: Emergency Removal or Relocation of Facilities: The City retains the right and
privilege to cut or move any Facilities located within the Public Ways, as the City may determine
to be necessary, appropriate or useful in response to any public health or safety emergency.
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Section 8.8: Damage to Facilities:
8.8.1: The City shall not be liable for any damage to or loss of any Facility within the Public Ways
as a result ofor in connection with anypublic works, public improvements, construction, excavation,
grading, filling, or work of any kind.
8.8.2: When the City does work within the Public Way and finds it necessary to maintain, support,
or move a Public Ways Use Permittee's Facilities, the City shall notify the Local Representative as
early as is reasonably possible. The costs associated therewith will be billed to that Public Ways Use
Permittee and must be paid within thirty (30) days from the date of billing.
8.8.3: Each Public Ways Use Permittee shall be responsible for the cost of repairing any Facilities
within the Public Way which it or its Facilities damage. Each Public Ways Use Permittee shall be
responsible for the cost of repairing any damage to any other Facilities caused during the City's
response to an Emergency occasioned by that Public Ways Use Permittee's Facilities.
Section 8.9: Leased Conduit: A Public Ways Use Permittee may, withoutprior City approval, offer
or provide conduit to its customers; provided that prior to entering into any agreement:
8.9.1: Public Ways Use Permittee shall notify the City of such action and provide the City with a
copy of any such proposed lease or other agreement.
8.9.2: The Person receiving such capacity has complied, to the extent applicable, with the
requirements of this Chapter.
Section 8.10: Insurance: Unless otherwise agreed in the permit, each Public Ways Use Permittee
shall, as a condition of the grant, secure and maintain the following liability insurance policies
insuring both Public Ways Use Permittee and the City, and its elected and appointed officers,
officials, agents and employees as coinsureds:
8.10.1: Comprehensive general liability insurance with limits not less than
(a) One Million Dollars ($1,000,000) for bodily injury or death to each person;
(b) Two Million Dollars ($2,000,000) for bodily injury or death resulting from
any one (1) accident;
(c) One Million Dollars ($1,000,000) forproperty damage to any one (1) person;
and
(d) Two Million Dollars ($2,000,000) for property damages resulting from any
one (1) accident.
8.10.2: Automobile liability for owned, non-owned and hired vehicles with a limit of One Million
Dollars ($1,000,000) for each person and Two Million Dollars ($2,000,000) for each accident.
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8.10.3: Worker's compensation within statutory limits and employer's liability insurance with limits
of not less than Five Hundred Thousand Dollars ($500,000).
8.10.4: The liability insurance policies required by this Section shall be maintained by Public Ways
Use Permittee throughout the term of the Public Ways Use Permit, and such other period of time
during which Public Ways Use Permittee is operating without a use permit hereunder, or is engaged
in the removal of its Facilities. Each such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to
renew be stated until ninety (90) days after receipt by the City of Riverside, by registered mail, of
a written notice addressed to the Administrator of such intent to cancel or not to renew."
8.10.5: Within sixty (60) days after receipt by the City of said notice, and in no event later than thirty
(30) days prior to said cancellation, Public Ways Use Permittee shall obtain and furnish to the City
replacement insurance policies meeting the requirements of this Section.
Section 8.11: General Indemnification: Each Public Ways Use Permittee shall defend, indemnify
and hold the City and its officers, employees, agents and representatives harmless from and against
any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or
defense, arising out of, resulting from or alleged to arise out of or resulting from any and all acts,
omissions or failure to act of Public Ways Use Permittee or its respective Affiliates, officers,
employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair
or removal of Facilities, and in providing or offering Communications Service over the Facilities or
network, whether such acts or omissions are authorized, allowed or prohibited by this Chapter or by
any agreement made or entered into pursuant to this Chapter.
Section 8.12: Performance and Construction Surety: Before a Public Ways Use Permit or
Construction Permit granted pursuant to this Chapter is effective, and as necessary thereafter, Public
Ways Use Permittee or Construction Permittee, as the case maybe, shall provide and deposit such
monies, bonds or other instruments in form and substance acceptable to the City as may be required
by this Chapter or by an applicable permit agreement.
Section 8.13: Advertising, Signs or Extraneous Markings: Public Ways Use Permittee shall not
place, cause to be placed or allow to be placed any sort of signs, advertisements or other extraneous
markings, whether relating to Public Ways Use Permittee or any other Person, on the Public Way,
except such necessary minimal markings as approved by the City as are reasonably necessary to
identify the Facilities for service, repair, maintenance or emergencypurposes, or as maybe otherwise
required to be affixed by applicable law or regulation.
Section 8.14: Tree Protection: In the attachment, installation, removal, reattachment,
reinstallation, relocation, replacement, maintenance, or otherwise ofthe Facilities, Public Ways Use
Permittee and Construction Permittee shall neither remove, cut, nor damage any trees in and along
the streets, alleys and public places of the City except as approved by the City. Tree trimming and
pruning may be permitted to occur only after prior written notice to the City of the extent of
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Section 9.2: Compliance with Zoning and Construction Codes: All Facilities shall be
constructed, installed, operated and maintained in accordance with all applicable Federal, State and
local codes, rules and regulations.
Section 9.3: Construction Schedule: Construction Permittee shall submit a written schedule to the
Public Ways Inspector ten (I O) working days before commencing any work within the Public Ways.
Construction Permittee shall further notify the Public Ways Inspector not less than two (2) working
days in advance of any work within the Public Ways.
Section 9.4: Compliance with Permit: All practices and activities shall be in accordance with the
permit and approved final plans and specifications for the Facilities. The Public Ways Inspector and
his or her representatives shall be provided access to the work and such further information as he or
she may require to ensure compliance with such requirements.
Section 9.5: Display of Permit: Construction Permittee shall maintain a copy of the permit and
approved plans at the work site, which shall be displayed and made available for inspection by the
Public Ways Inspector or his or her representatives at all times.
Section 9.6: Survey of Underground Facilities: If the permit specifies the location of Facilities
by depth, line, grade, proximity to other facilities or other standards, Construction Permittee shall
cause the location of such Facilities to be verified by a registered Missouri land surveyor.
Construction Permittee shall relocate any Facilities which are not located in compliance with permit
requirements.
Section 9J: Noncomplying Work: Upon order of the Public Ways Inspector, all work which does
not comply with the permit, the approved plans and specifications for the work, and the requirements
of this Chapter, shall be removed.
Section 9.8: Completion: Construction Permittee shall promptly complete all activities so as to
minimize disruption of the Public Ways and other public and private property. All work authorized
by a permit within Public Ways, including Restoration, must be completed within the time set forth
in such permit.
Section 9.9: Inspection:
9.9.1: Notice of Completiaz: When the work under any Construction Permit is completed,
Construction Permittee shall notify the Public Ways Inspector.
9.9.2: Site Lispectio~a: Construction Permittee shall make the work-site available to the Public
Ways Inspector and to all others as authorized by law for inspection at all reasonable times during
the execution of and upon completion of the work.
9.9.3: Authority of Public Ways bispector: At any time of inspection the Public Ways Inspector
may order the immediate cessation of any work which poses a serious threat to the life, health, safety
or well-being of the public or which is not in conformance with a valid permit. The Public Ways
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because of Extraordinary Circumstances. Settlement of the excavation or cracking, breaking, or
rutting of the surface shall be prima facie evidence of improper backfill, which shall be replaced by
the Construction Permittee or, at the City's option, by the City with the cost paid out of the deposit
and any remaining amounts billed to the Construction Permittee. A preliminary final inspection shall
be performed once construction is completed. The final inspection will not be performed until the
one year maintenance period is over. If, one year after completion of the Restoration of the Public
Way, the Public Ways Inspector determines that the Public Way has been properly Restored, the
surety shall be released.
9.11.4: Construction Permittee shall perform Repairs and Restoration according to the standards and
with the materials specified by the Public Ways Inspector. The Public Ways Inspector shall have
the authority to prescribe the manner and extent of the Restoration, and may do so in written
procedures of general application or on a case-by-case basis. The Public Ways Inspector in
exercising this authority shall be guided by the following standards and considerations:
(a) the number, size, depth and duration of the Excavations, disruptions or
damage to the Public Way;
(b) the traffic volume carried by the Public Way and the character of the
neighborhood surrounding the Public Way;
(c) the pre-excavation condition of the Public Way and the remaining life
expectancy of the Public Way affected by the Excavation;
(d) whether the relative cost of the method of Restoration to Construction
Permittee is in reasonable balance with the prevention of an accelerated depreciation
of the Public Way that would otherwise result from the Excavation, disturbance or
damage to the Public Way; and
(e) the likelihood that the particular method of Restoration would be effective in
slowing the depreciation of the Public Way that would otherwise take place.
9.11.5: If Construction Permittee fails to Restore the Public Way in the manner and to the condition
required under this Chapter, or fails to satisfactorily and timely complete all Restoration and other
work required under this Chapter, the City may cause such work to be done at Construction
Pennittee's expense. The City may utilize the deposit and/or bond and/or bill the Construction
Permittee. In that event, Construction Permittee shall pay to the City, within thirty (30) days of
billing, all such costs.
9.11.6: Failure of the Construction Permittee to request in writing the final inspection within one (1)
year of the date of the preliminary final inspection under the Construction Permit shall result in the
deposit being forfeited by the Construction Permittee, and said deposit shall be paid to the City
Treasury as general revenue.
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Section 9.15: Responsibility of Owner: Construction Permittees, the owner(s) of the Facilities to
be constructed and, if different, Public Ways Use Permittee(s) and licensee(s), are responsible for
performance of and compliance with all provisions of this Chapter.
ARTICLE 10: Indemnification and Liability
Section 10.1: Limitation of Liability: By reason of the acceptance of a registration or the grant
of a Construction Permit or Public Ways Use Permit or license, the City does not assume any
liability (a) for injuries to persons, damage to property, or loss of service claims by any parties, or
(b) for claims or penalties of any sort resulting from the installation, presence, maintenance, or
operation of Facilities by any Person or activities of any Person.
Section 10.2: Indemnification: Byregistering with the City, a Registrant agrees, andby accepting
a Construction Permit or Public Ways Use Permit or license under this Chapter, a Construction
Permittee or Public Ways Use Permittee or licensee, as the case maybe, agrees to and shall at its sole
cost and expense defend, indemnify, and hold the City, its officers, employees, agents and
representatives whole and harmless from and against all costs, liabilities, claims, suits, actions and
liability judgments for damages of any kind arising out of the construction, presence, installation,
maintenance, repair or operation of its Facilities and other equipment, or out of any activity
undertaken within or near a Public Way, whether or not any act or omission complained of is
authorized, allowed, or prohibited by a Construction Permit or a Public Ways Use Permit or a
license. It further agrees that it will not bring, nor cause to be brought, any action, suit or other
proceeding claiming damages, or seeking any other relief against the City, its officers, employees,
agents and representatives for any claim nor for any award arising out of the presence, installation,
maintenance or operation of its Facilities or other equipment, or any activity undertaken within or
near a Public Way, whether or not the act or omission complained of is authorized, allowed or
prohibited by a Construction Permit or a Public Ways Use Permit or a license. The foregoing does
not indemnify the City for its own gross negligence except for claims arising out of or alleging the
City's gross negligence where such negligence arises out of or is primarily related to the presence,
installation, construction, operation, maintenance or repair of said Facilities or other equipment by
any Registrant or on any Registrant's behalf, including, but not limited to, the issuance of permits
and inspection of plans or work. This section is not, as to third parties, a waiver of any defense or
immunity otherwise available to the Registrant or to the City; and the Registrant, in defending any
action on behalf of the City, shall be entitled to assert in any action every defense or immunity that
the City could assert in its own behalf.
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