[Ord. No. 3129, 7-18-2016]
A.Â
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.Â
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.Â
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 (1Â 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:
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.
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:
Easements obtained by utilities or private easements in platted
subdivisions or tracts;
Railroad rights-of-way and ground utilized or acquired for railroad
facilities; or
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.
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.
