[Ord. No. 3134, 10-17-2016]
No person, other than the City or a department thereof, shall
attach or maintain any fixture to or place or maintain any facilities
or wires on any utility pole or other fixture or facility of the City
within City rights-of-way or easements without: 1) a pole attachment
agreement approved by the City Council after the date hereof, and
2) payment of a pole attachment fee as may be established hereinafter
by the City Council by resolution or ordinance in conformance with
law, or as may be hereinafter approved as alternative lawful compensation
in a pole attachment agreement approved by the City Council after
the date hereof. Failure to hold and maintain a current and valid
pole attachment agreement with the City shall not excuse payment of
the pole attachment fee at the rate required herein. Where a pole
attachment agreement expires, and in addition to any penalties or
other requirements, the licensee during any holdover period shall
pay monthly one-twelfth (1/12) of the rate above or one-twelfth (1/12)
of the rate in the expired agreement, whichever is greater, until
a valid agreement is obtained or the attachments are removed. The
licensee shall indemnify and be responsible to pay all costs incurred
by the City in any way due or arising from any such attachment or
violation of any provision hereof or of any pole attachment agreement,
including, but not limited to, attorneys' fees, except as may be otherwise
expressly provided by agreement. To the extent that limitations by
State or Federal law require a lower rate than established herein,
such lower maximum rate permitted by law shall apply in lieu of the
rate established above.
[Ord. No. 3134, 10-17-2016]
Unless otherwise provided by a pole attachment agreement, amounts
due under this Section shall be paid to the City not later than January
15 of each year for the prior calendar year (or pro rata portion thereof
if less than a full year) and any amount unpaid after such date shall
accrue interest payable to the City at the rate of one and one-half
percent (1 1/2%) per month, on all amount owed. Each payment
shall be accompanied by an affidavit of the number of poles to which
attachments exist and computation of the fee based on the number of
attachments as of that date.
[Ord. No. 3134, 10-17-2016]
No pole attachment shall be authorized except by permit authorized
under a duly executed pole attachment agreement with the City, which
shall include such provisions as necessary to protect the public interest
and provide for payment of the required compensation consistent with
this Section. An application may be required containing such information
as may be necessary to determine the appropriateness of the application
and may contain a fee requirement in an amount sufficient to reimburse
the City its costs or such other reasonable basis as permitted by
law. A franchise or rights-of-way agreement, or other authority to
use the rights-of-way, shall not be deemed to authorize pole attachment
unless hereinafter expressly so provided therein. A pole attachment
agreement shall be reviewed and approved, denied or conditioned as
the public interest dictates subject to all applicable law. Nothing
herein shall be interpreted to contravene any unwaived rights in a
duly authorized and lawful existing agreement with the City.
[Ord. No. 3134, 10-17-2016]
The City and any user shall be subject to all applicable Federal,
State, and local law, and the rights, procedures, and obligations
relating to poles shall be applied and limited by such supplementary
or superseding valid laws as may be elsewhere established.
[Ord. No. 3134, 10-17-2016]
Any person or entity who shall be in violation of this Chapter
or otherwise attach or maintain any fixture to or place or maintain
any facilities or wires on any City facilities, including any utility
poles or other fixture or facility of the City, within City rights-of-way
or easements without a currently valid and unexpired pole attachment
agreement approved by the City Council, shall be subject to a penalty
of an unauthorized attachment fee equal to five (5) times the current
annual pole attachment fee rate set by the City Council for every
year or portion thereof that such person is in violation of this Section
or otherwise does not have a valid pole attachment agreement complying
with the provision of this Section. Penalties under this subsection
shall be required to be paid on a monthly basis as provided in subsection
(b). Any person asserting any right to proceed on City poles, where
no pole attachment agreement yet exists between the parties, pending
a dispute over required pole agreement terms that exclusively are
as to the "per-pole fee or any requirement or issue not directly related
to the pole attachments" ("protestable terms"), shall except to the
extent such applicant may be exempted by law, and prior to proceeding
on any pole: 1) execute the pole attachment agreement required by
the City and provide the City with such executed copy for execution
by the City, and 2) provide a cover letter under oath specifically
asserting that a dispute remains as to terms in the executed agreement
exclusively as to the protestable terms in such agreement, and specifically
set forth each and every provision (quoting the precise disputed words)
that are so disputed. During pendency of the dispute, the agreement
shall be binding and applicable as written, provided that the protestable
terms specifically disputed shall be deemed protested and subject
to ultimate judicial resolution by a court to be unlawful. The agreement
shall be required and deemed to establish the "agreed upon terms and
conditions" accepted by the user subject only to the protestable terms
specifically identified as authorized herein. In the event that there
is a dispute as to terms other than protestable terms, no attachment
shall occur until such dispute or disagreement is resolved and nothing
in this Section shall be deemed to authorize proceeding on City poles
without an executed agreement, or to authorize protest of any provisions
not specifically protested in the required cover letter authorized
herein. Pending the resolution of the dispute, the pole user shall
comply with all requirements in the agreement and shall be subject
to all remedies and penalties for breach thereof, subject to court
action as to any protestable terms, and subject to any limitations
as may be mandated by law. All pole use shall occur only after obtaining
an attachment permit from the City in its capacity as pole owner for
such use, and all such permits shall be deemed to incorporate this
chapter and all provisions of the applicable required agreement. Failure
to execute an agreement shall be deemed a material violation of this
Chapter and of a permit as to any such pole use, and failure to obtain
a permit shall further be deemed a material violation of this Chapter
and of a required permit and agreement, whether or not actually obtained
as required herein. Notwithstanding any provision herein, no party
shall have the right to proceed on a City pole during the pendency
of a dispute as to any City required terms except when such right
is also specifically granted by enforceable valid State or Federal
law.
[Ord. No. 3134, 10-17-2016]
Any person or entity who is required to obtain a pole attachment agreement under this Section may avoid penalties under Section 715.110 above by complying with all application requirements and executing a pole attachment agreement provided by the City and submitting therewith an appeal letter notifying the City that the agreement or other requirements are claimed by the person or entity to be unlawful under the circumstances and are being executed and/or submitted under protest. This letter shall be separate and apart from any protest letter required by Section 715.110 for dispute of protestable terms. Within twenty (20) days of its execution of the agreement, the person or entity shall file with the City Clerk a verified appeal seeking relief from any term or condition of the pole attachment agreement or other requirement that the person or entity alleges to be unlawful. The appeal shall state with specificity the term or condition which is claimed to be unlawful and shall specify all basis, data, information, and argument relied upon to justify said claims. The person or entity may request the City Council to hold a public hearing at which such basis, data, information, and argument may be received. The City Council may provide relief from any rate, term, or condition that it lawfully finds in its determination to be unlawful under the facts presented or otherwise unlawful by addition, deletion, or amendment to the agreement. If the person or entity accepts such relief, the addition, deletion or amendment to the pole attachment agreement shall be made by a writing executed by the person or entity and the City. If such relief is not accepted, the pole attachment agreement shall remain in full force and effect, and the person or entity may then pursue any available remedies in a court of law or otherwise, provided that nothing herein shall be deemed to be a waiver of the City's sovereign immunity. Except where otherwise required by law, no final decision of the City for purposes of judicial relief as to any disputed term, condition, or other requirement shall be deemed to exist prior to completion of this process. Nothing herein shall be deemed to unlawfully limit any remedy that is required to be available as a matter of law.
[Ord. No. 3134, 10-17-2016]
In addition to any supplemental requirement as may be specified
in a pole attachment agreement, any person or entity attaching to
any City pole shall indemnify and hold harmless the City, including
each and every officer, employee or agent thereof, for any liabilities,
damages or costs incurred that are caused or result from, in whole
or in part, the attachment, or attaching person or entity.
[Ord. No. 3134, 10-17-2016]
Any person violating any provision of this Section shall, in
addition to being subject to all other remedies herein, be deemed
guilty of an offense and upon conviction thereof shall be fined not
less than one hundred dollars ($100.00) nor more than five hundred
dollars ($500.00). Each day's violation shall constitute a separate
offense.
