City of Malden, MO
Dunklin County
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Table of Contents
Table of Contents
[Ord. No. 3129, 7-18-2016]
A. 
Franchise. Except where otherwise authorized or required by applicable law, no ROW-user may construct, maintain, own, control, or use facilities in the rights-of-way without a franchise or ROW agreement with the City as provided herein. A franchise shall be obtained in conformance will all applicable franchise procedures for any ROW-user seeking to use the rights-of-way for purposes of providing distribution of electricity, gas, water, steam, lighting, or sewer public utility service in the City. Such franchise may be granted only after a public hearing and on satisfaction of all other applicable procedural or substantive requirements. ROW-users shall also be subject to all other ordinances of the City as may be applicable.
B. 
ROW Agreement. A ROW agreement shall be required for all other ROW-users, except as provided herein or otherwise required by law. Such agreements shall conform to all applicable law, but shall not be subject to procedures applicable to franchises and the City may, if appropriate, approve form agreements that may be executed by the City administrator in substantially the form approved. All such franchises and agreements shall be approved by ordinance of the Council on a non-discriminatory basis provided that the applicant is in compliance with all applicable requirements. Such franchises and agreements shall be deemed to incorporate the terms of this Chapter and other applicable laws of the City, except as may be expressly stated in such agreements and franchises. Reseller service providers doing business in the City but having no right or desire to physically enter and use the public property shall not be required to obtain a franchise or agreement but shall be required to register with the City prior to providing service on forms provided by the City. The consent to use the rights-of-way authorized by this agreement is subject to the continuing accuracy during the term of this agreement of the application information provided by and maintained by the ROW-user for this authorization as provided to and on file with the City.
C. 
Unless otherwise provided by law, the City shall act on any ROW permit application no later than thirty-one (31) days after submission of the application, but no such application may be approved where a City franchise or row agreement is lawfully required but has not yet been obtained.
[Ord. No. 3129, 7-18-2016]
Installation of facilities or use 1) in, on or over non-right-of-way public lands or 2) within or on facilities or structures of the City (whether or not on right-of-way) by any person or entity shall be permitted only if a lease agreement, attachment agreement or other written agreement has been negotiated and approved by the City with such reasonable terms as the City may require expressly authorizing such use.
[Ord. No. 3129, 7-18-2016]
The City may, in its sole discretion, grant rights to use City property or City facilities. If the right is granted, by lease, license, ROW agreement, franchise or other manner, to use and occupy City property for the installation of facilities, the compensation to be paid shall be as reasonably established or adjusted from time to time by the City, unless otherwise provided by law. Such agreements shall convey no property interest in the City property or City facilities to the applicant. Nothing herein shall preclude the City from also charging for the use of ROW property where not inconsistent with applicable law. Use of City property to locate a new wireless support structure shall, if made available by the City, be deemed to be offered for not less than a fifteen-year term of duration unless otherwise agreed.
[Ord. No. 3129, 7-18-2016]
The authority granted by the City in any agreement or franchise shall be for non-exclusive use of the rights-of-way. The grantor specifically reserves the right to grant, at any time, such additional agreements or other rights to use the rights-of-way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable law. The granting of an agreement or franchise shall not be deemed to create any property interest of any kind in favor of the ROW-user.
[Ord. No. 3129, 7-18-2016]
Any person who fails to hold and maintain a current and valid agreement with the City to use the City's land or facilities has no right to holdover and shall be subject to the provisions and City remedies of this Section in addition to all other remedies and penalties as may otherwise exist in applicable law. Any claimed holdover right shall be deemed void and terminated upon expiration of a valid use agreement unless the City has affirmatively, in writing, authorized the holdover, or as otherwise may be required by law. Where a pole attachment agreement, lease, or other agreement for use of public land or facilities expires, and in addition to any penalties or other requirements therein, the ROW-user during any period without a valid agreement shall, during any period of unauthorized use: 1) indemnify the City from any liability arising from the use; 2) pay any damages and costs of the City from such use, including attorney fees incurred in enforcing this Chapter; and 3) make payment of compensation in the amount of two (2) times the monthly rent of the last expired agreement, if a holdover, and two (2) times the market rental value reasonably determined by the City, if no prior agreement, until a valid agreement is executed with the City or the attachments and/or use is fully removed, the property restored and all obligations to the City satisfied. Unless otherwise provided in an unexpired agreement, ROW-user shall also be responsible for interest on all amounts owed and at a rate of one and one-half percent (1 1/2%) per month. Nothing in these provisions, remedies or compensation requirements, or acceptance or enforcement thereof by the City, shall be deemed to accept or authorize any use of public property without a required agreement, or after the expiration of such agreement, or otherwise in violation of applicable requirements.
[Ord. No. 3129, 7-18-2016]
As used in this Article, the following terms shall have the meanings indicated:
RESELLER SERVICE PROVIDER
A person providing service within the City that does not have its own facilities in the rights-of-way, but instead uses the rights-of-way by interconnecting with or using the network elements of another ROW-user utilizing the rights-of-way, and/or by leasing excess capacity from an entity having facilities in the ROW.
RIGHTS-OF-WAY or ROW
The area on, below or above a public roadway, highway, street or alleyway in which the City has an ownership interest, and including such adjacent area of such public ways within such ownership interest as made available by the City for rights-of-way use herein, but not including:
1. 
Easements obtained by utilities or private easements in platted subdivisions or tracts;
2. 
Railroad rights-of-way and ground utilized or acquired for railroad facilities; or
3. 
Poles, pipes, cables, conduits, wires, optical cables, or other means of transmission, collection or exchange of communications, information, substances, data, or electronic or electrical current or impulses utilized by a utility owned or operated by a governmental entity pursuant to Chapter 91, RSMo.
RIGHTS-OF-WAY USER or ROW-USER
Such persons and entities maintaining, constructing or installing facilities in the public rights-of-way of the City unless otherwise expressly exempted by law. The term shall not include the City or minor incidental uses expressly authorized by the City in writing; provided that the City shall nevertheless comply with all such requirements applicable to ROW-users to the extent such compliance is otherwise required by state or federal law.
[Ord. No. 3129, 7-18-2016]
ROW-user agrees that it shall be responsible to guarantee for a period of four (4) years the restoration of the right-of-way in the area where such ROW-user conducted excavation and performed the restoration minimally as required by Section 67.1834, RSMo. A bond, letter of credit or other surety (collectively "surety") in the form approved by the City shall be posted if required by the City to guarantee construction performance. Surety shall not be required to the extent and for such period during this agreement as ROW-user is exempted from such requirements pursuant to Section 67.1830(6)(a), RSMo., and has on file with the City Clerk an affidavit certifying that ROW-user has twenty-five million dollars ($25,000,000.00) in net assets and the facts otherwise establishing that ROW-user is therefore so exempted. ROW-user shall also be responsible for maintenance of its facilities and any and all damage caused to the ROW, equipment within the ROW or otherwise by ROW-user's use of the ROW.
[Ord. No. 3129, 7-18-2016]
All facilities shall be constructed, installed, operated and maintained in accordance with all local zoning and construction codes and all other applicable Federal, State and local codes, rules and regulations.
[Ord. No. 3129, 7-18-2016]
Except as may be prohibited by law, any ROW-user shall provide, at its sole expense, and maintain during the term of this agreement commercial general liability insurance with a reputable, qualified, and financially sound company licensed to do business in the State of Missouri, and unless otherwise approved by the City, with a rating by Best of not less than "A," that shall protect the ROW-user, the City, and the City's officials, officers, and employees from claims which may arise from operations under this agreement, whether such operations are by the ROW-user, its officers, directors, employees and agents, or any subcontractors of ROW-user. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all ROW-user operations, products, services or use of automobiles, or construction equipment. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall be at least two million seven hundred thirty-four thousand five hundred sixty-seven dollars ($2,734,567.00), but in no event less than the individual and combined sovereign immunity limits established by Section 537.610, RSMo., or its successor, for political subdivisions; provided that nothing herein shall be deemed to waive the City's sovereign immunity. An endorsement shall be provided which states that the City is named as an additional insured and stating that the policy shall not be cancelled or materially modified so as to be out of compliance with the requirements of this Section, or not renewed without thirty (30) days' advance written notice of such event being given to the City Administrator. Any self-insurance or deductible above fifty thousand dollars ($50,000.00) must be declared to and pre-approved by the City. The insurance requirements in this Section or otherwise shall not apply to the ROW-user to the extent and for such period during this agreement as the ROW-user is exempted from such requirements pursuant to Section 67.1830(6)(a), RSMo., and has on file with the City Clerk an affidavit certifying that the ROW-user has twenty-five million dollars ($25,000,000.00) in net assets and the facts otherwise establishing that ROW-user is therefore so exempted.
[Ord. No. 3129, 7-18-2016]
Each ROW-user shall defend (with counsel selected by the City), 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 attorneys' 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 ROW-user 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.
[Ord. No. 3129, 7-18-2016]
No provision of this Chapter shall apply to any circumstance in which such application shall be unlawful under superseding Federal or State law and furthermore, if any section, subsection, sentence, clause, phrase, or portion of this Code is now or in the future superseded or preempted by State or Federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and applied as required by law.
[Ord. No. 3129, 7-18-2016]
The City shall be entitled to enforce any provision of this Code through all remedies lawfully available, and any person that has violated the terms of this Code shall further be liable to pay the City's costs and attorneys' fees in enforcing such Code provisions. Additionally, any user of City Services, rights-of-way or other City facilities or property shall, as a condition of such use or continued use, to the full extent permissible by law, be liable to pay the City's costs and attorneys' fees incurred in enforcing any lawful requirement applicable to such use, whether arising in contract, statute, ordinance, or other enforceable duty as to such use.