[R.O. 2011 §250.150; Ord. No. 2000-92 §2(2.1), 12-5-2000]
A.
The purpose of registration under this Article II is to:
1.
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.
Assist the City in enforcement of this Chapter.
3.
Assist the City in collection and enforcement of municipal taxes,
fees and other charges that may be due the City.
4.
Assist the City in monitoring compliance with local, State and Federal
laws.
A.
Agreement, License, Or Franchise Required. Except where otherwise
authorized or required by applicable law, no person may construct,
maintain, own, control, or use utility facilities or structures in
the right-of-way without a franchise, license, or right-of-way use
agreement with the City as provided herein.
1.
Franchise. A franchise shall be obtained in conformance with
all applicable franchise procedures for any person or utility seeking
to use the Right-of-Way for purposes of providing service of distribution
of electricity, gas, water, steam, lighting, or sewer public utility
service in the City.
2.
Right-Of-Way Use Agreement. A right-of-way use agreement shall
be required for all other persons desiring to use the right-of-way,
except as provided herein or otherwise required by law. Such agreement
shall conform to all applicable laws and requirements including as
provided in this Chapter for ROW user providing communication services,
if applicable, but shall not be subject to procedures applicable to
franchises.
3.
License. Persons desiring to install an incidental use, which
includes installation of temporary structures or non-wireless utility
facilities within the Right-of-Way and installation of permanent incidental
uses such as mailboxes, driveway aprons, ingress or egress facilities,
and similar incidental uses that utilize a small area of the Right-of-Way
and serves the principal structure, on, in, or above the Right-of-Way
may be permitted without a franchise or Right-of-Way agreement pursuant
to a license issued by the Administrator. The Administrator may establish
such application, requirements and conditions, applicable to such
uses consistent with the purposes of this Chapter or as otherwise
established by law. Any Person granted a License hereunder shall be
subject to the applicable requirements of this Chapter.
B.
Franchises, Licenses, And Agreements Non-Exclusive-Approval. The
authority granted by the City in any agreement, license, or franchise
shall be for non-exclusive use of the Right-of-Way. The City specifically
reserves the right to grant, at any time, such additional agreements
or other rights to use the Right-of-Way for any purpose and to any
other person, including itself, as it deems appropriate, subject to
all applicable laws. The granting of any agreement, license, or franchise
shall not be deemed to create any property interest of any kind in
favor of the ROW user. All franchises and agreements shall be approved
by ordinance of the Board of Aldermen on a non-discriminatory basis
provided that the applicant is in compliance with all applicable requirements.
Licenses may be approved by the Administrator on a non-discriminatory
basis provided that the applicant is in compliance with all applicable
requirements. Such franchises, licenses, 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,
licenses, and franchises. The City may require compensation for use
of the Right-of-Way or other public property as may be reasonably
required by the Board of Aldermen, subject to applicable law.
C.
Condition Precedent To Permit. Unless prohibited by applicable law,
no permit for excavation may be issued unless or until such applicant
has a valid franchise, license, or Right-of-Way use agreement with
the City.
D.
No Warranty. The City makes no express or implied representation
or warranty regarding its rights to authorize the installation or
construction of facilities on any particular segment of Right-of-Way
and shall not be liable for any damage therefrom. The burden and responsibility
for making all such determinations in advance of construction or installation
shall be entirely upon the ROW user. The ROW user shall be solely
liable for any damages to facilities or other property due to excavation,
or other ROW work performed prior to obtaining the location of all
facilities that have been properly identified prior to such work.
The ROW user shall not make or attempt to make repairs, relocation,
or replacement of damaged or disturbed facilities without the approval
of the owner of the facilities.
E.
Use Of City Or Third-Party Facilities. No ROW use agreement, franchise,
or license shall grant the right to use facilities owned or controlled
by the City or a third party, and no such use shall occur, without
the express written consent of such party (on file with the City and
subject to other applicable requirements), nor shall any franchise,
row agreement, or license excuse such person from first obtaining
a pole attachment agreement or other express consent for such right
or use before locating on the facilities controlled or owned by the
City or a third party.
F.
Duty Of Reseller Providers To Provide Notice Of Operations Within
City. Prior to providing service within the City or acquiring or using
excess capacity through facilities in the City, reseller service providers
shall provide written notice to the City of the intent to do so and
register with the City as provided herein. It shall be unlawful for
any reseller service provider not having its own agreement or franchise
to transmit communications for commercial purposes through any facility
owned by a person without a valid agreement or other City authorization
for such facilities. Any reseller service provider that buys or leases
excess capacity or other services for resale from a ROW user, shall
be subject to the terms and conditions of this Chapter, including
the requirement to first register with the City and obtain any necessary
permit, license, certification, grant, registration, franchise agreement,
or any other authorization required by any appropriate governmental
entity, including, but not limited to, the City, PSC or the FCC. If
a person through such lease or purchase owns facilities in the Right-of-Way
or has the right to physically access or maintain any facilities in
the Right-of-Way, then such person no longer meets the definition
of a reseller service provider and is required to first obtain a franchise,
license, or Right-of-Way use agreement as required herein.
G.
Each ROW User shall maintain its facilities in good and safe condition
and in a manner that complies with all applicable Federal, State,
and local requirements.
H.
Forfeiture Of Agreement And Privilege. In case of failure on the
part of the ROW user, including its successors and assigns to comply
with any of the provisions of this Chapter or a ROW use agreement,
franchise, license or other authorization, or if the ROW user, its
successors and assigns should do or cause to be done any act or thing
prohibited by or in violation of this Chapter or the terms of the
authorization of such use, or otherwise loses authority to provide
its service in the City, the ROW user, its successors and assigns
shall forfeit all rights and privileges permitted by this Chapter
and any ROW use agreement, franchise, license or other authorization,
and all rights hereunder shall cease, terminate and become null and
void, provided that said forfeiture shall not take effect until the
City shall carry out the following proceedings: Before the City declares
the forfeiture or revocation of a Right-of-Way use agreement, franchise,
license or other authorization, it shall first serve a written notice
upon the person setting forth in detail the neglect or failure complained
of, and the person shall have thirty (30) days thereafter, or such
other reasonable period established by the Governing Body, in which
to cure the default by complying with the conditions of the ROW use
agreement, franchise, license or other authorization or requirement
and fully remedying any default or violation. If at the end of such
period the City determines that the conditions have not been complied
with and that the person did not reasonably and in the public interest
require more than thirty (30) days to cure the default, the City shall
take action by an affirmative vote of the Board of Aldermen present
at the meeting and voting to terminate the ROW use agreement, franchise,
license or other authorization, setting out the grounds upon which
said agreement or other authorization is to be forfeited or revoked.
Nothing herein shall prevent the City from invoking any other remedy
or from declaring immediate forfeiture where the default is incapable
of being cured by the ROW user, including where such defaults or violations
have repeatedly occurred.
[1]
Editor’s Note: Ord. No. 1578 also changed the title
of this Section from “Registration Required” to “Agreement,
License, Or Franchise Required; Requirements.”
[Ord. No. 1578, 2-6-2018]
A.
All persons seeking to obtain a franchise, license or agreement must
submit an application for said franchise, license, or agreement.
1.
Application. An application for a franchise or rights-of-way
use agreement shall be presented to the Administrator in writing on
the form provided by the City and shall include all such information
as is required by this Section and on the application form. All ROW
users occupants shall be responsible for accurately maintaining the
information in the application during the term of any franchise or
rights-of-way use agreement and shall be responsible for all cost
incurred by the City due to the failure to provide or maintain as
accurate any application information required herein.
2.
Application Form. All applicants shall submit a completed application
for a franchise, or rights-of-way use agreement on such form provided
by the City, which shall include information necessary to determine
compliance with this Chapter, including, but not limited to:
a.
Identity and legal status of the proposed rights-of-way user.
b.
Name, address, telephone number, fax number, and e-mail address
of each officer, agent or employee responsible for the accuracy of
the application. Each officer, agent or employee shall be familiar
with the local facilities of the proposed ROW user, shall be the person(s)
to whom notices shall be sent, and shall be responsible for facilitating
all necessary communications, including, but not limited to, certification
to the City of any material changes to the information provided in
such completed application during the term of any franchise or agreement.
c.
Name, address, telephone number, fax number, and e-mail address
of the local representative of the proposed ROW user rights-of-way
occupant who shall be available at all time to act on behalf of the
ROW user rights-of-way occupant in the event of an emergency.
d.
Proof of any necessary permit, license, certification, grant,
registration, franchise agreement of any other authorization required
by any appropriate government entity, including, but not limited to,
the FCC or the Missouri Public Service Commission.
e.
Description of the proposed ROW user's intended use of the right-of-way,
including such information as to proposed services so as to determine
the applicable, Federal, State, and local regulatory provisions as
may apply to such ROW user.
f.
A list of authorized agents, contractors, and subcontractors
eligible to obtain permits on behalf of the proposed ROW user. An
application may be updated to add such person at the time of permit
application if the updated application is submitted by an authorized
representative of the ROW user.
g.
Information sufficient to determine the amount of net assets
of the proposed ROW user.
h.
Information sufficient to determine whether the proposed ROW
user rights-of-way occupant is subject under applicable law to franchising,
service regulation, payment of compensation for use of the rights-of-way,
taxation, or other requirements of the City.
i.
An application deposit fee of two thousand four hundred dollars
($2,400.00) is required for a rights-of-way use agreement application
and an application deposit fee of five thousand four hundred dollars
($5,400.00) is required for a franchise application. Such deposit
fees shall be utilized to offset the City's costs in review and issuance
of rights-of-way use agreement or franchise agreement, consistent
with applicable law. Any amount not used by the City for its actual
lawfully reimbursable costs will be refunded to the application on
request after execution of the rights-of-way use agreement or franchise
agreement. If applicable, the applicant shall be obligated to reimburse
the City for its reasonable expenses associated with the review, negotiation,
and adoption of an appropriate rights-of-way use agreement or franchise
agreement that may reasonably exceed the application deposit amount.
j.
Any request including one (1) or more antennas shall also include
all requirements for installation of antennas and wireless Facilities
set forth in the Uniform Wireless Communications Infrastructure Deployment
Act (Sections 67.5090 et seq., RSMo.) or other applicable law; and
k.
Such other information as may be reasonably required by the
City to determine requirements and compliance with the applicable
regulation.
3.
Approval Process. After submission by the proposed ROW user
rights-of-way occupant of a duly executed and completed application
and application deposit fee and an executed franchise or rights-of-way
use agreement as may be provided by the Administrator or as modified
by the Administrator in review of the specific circumstances of the
application, all in conformity with the requirements of this Chapter
and all applicable laws, the Administrator shall submit such agreement
to the Board of Aldermen for approval. Upon determining compliance
with this Chapter, the Board of Aldermen shall authorize execution
of the franchise or rights-of-way use agreement (or modified agreement
otherwise acceptable to the City consistent with the purpose of this
Chapter) and such executed franchise or agreement shall constitute
consent to use the rights-of-way in accordance with this Chapter and
the rights-of-way use agreement; provided that nothing herein shall
preclude the rejection or modification of any executed franchise or
agreement submitted to the City to the extent such applicable law
does not prohibit such rejection or modification, including where
necessary to reasonably and in a uniform or non-discriminatory manner
reflect the distinct engineering, construction, operation, maintenance,
public work, or safety requirements applicable to the applicant.
4.
Standard For Approval Or Renewal Of ROW Use Agreements. In reviewing
an application for a new or renewal ROW use agreement, the City may
consider prior conduct of the person in performance of its obligations
or compliance with the City's ordinances in the past, or the existence
of any outstanding violations or deficiencies. The City may deny or
condition any ROW use agreement or franchise where the proposed use
would interfere with the public use of the rights-of-way or otherwise
conflict with the legitimate public interests of the City or as otherwise
provided by law. Applications for ROW use agreements or franchises
may be approved, denied, or approved with conditions consistent with
requirements of applicable law or other applicable requirements as
may be necessary to fulfill the requirements and objectives of this
Chapter.
A.
Any existing ROW user must register within thirty (30) days of the
effective date of the ordinance from which this Chapter derives. Prior
to providing service (including sale or transfer of product or service)
within the City or acquiring or using excess capacity through facilities
in the City, all reseller service providers much register with the
City. Prior to providing service within the City, transmitting communications
through facilities in the City, or constructing in the rights-of-way
entities not required to obtain a franchise, license, or rights-of-way
use agreement due to superseding Federal or State law, shall nevertheless
be required to register with the City.
B.
Any person, who is not a ROW user prior to the effective date of
the ordinance and who wishes to become a ROW user, must first obtain
a franchise, license, or rights-of-way use agreement, or other authorization
from the City.
C.
A ROW user is authorized, subject to other applicable requirements,
to sell or transfer use of excess capacity to reseller service providers
or other entities, provided that such entity either: (1) has no right
to and does not physically access the facilities while in the ROW,
or (2) has a separate franchise or ROW use agreement or other written
agreement or consent authorizing the same with the City. In the event
of such sale or transfer to a reseller service provider, the ROW user
shall notify the City of the same prior to such action so that the
City can review compliance regarding doing business in the City. This
notice shall not relieve the reseller service provider from its own
obligation to register, pay taxes, and obtain any necessary authorization
from the City.
D.
The ROW user shall be responsible for all costs incurred by the City
due to the failure to provide any information to the City required
for registration.
E.
Any reseller service provider that buys or leases excess capacity
or other services for resale from a ROW user, shall be subject to
the terms and conditions of this Chapter, including the requirement
to first register with the City and obtain any necessary permit, license,
certification, grant, registration, franchise agreement or any other
authorization required by any appropriate governmental entity, including,
but not limited to, the City, PSC or the FCC. If a person through
such lease or purchase owns facilities in the rights-of-way or has
the right to physically access or maintain any facilities in the rights-of-way,
then such person no longer meets the definition of a reseller service
provider and is required to first obtain a franchise, license, or
rights-of-way use agreement as required herein.
[1]
Editor’s Note: Ord. No. 1578 also changed the title
of this Section from “Registration Fee” to “Registration.”
[R.O. 2011 §250.210; Ord. No. 2000-92 §2(2.4), 12-5-2000]
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 has knowledge
of any change.
[R.O. 2011 §250.220; Ord. No. 2000-92 §2(2.5), 12-5-2000]
A.
Within
ten (10) days of a written request from the Administrator, each registrant
shall furnish the City with information sufficient to demonstrate:
1.
That registrant has complied with all requirements of this Chapter
and the City's Municipal Code of Ordinances.
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.
3.
All books, records, maps and other documents, maintained by public
ways use permittee or licensee with respect to its facilities within
the public ways and/or communications services, as the case may be,
shall be made available at the City offices for inspection by the
City at reasonable times and intervals upon the City's request.
[Ord. No. 1578, 2-6-2018]
Except as provided in this Chapter, or as otherwise required
by law, no franchise, license, or right-of-way use agreement, permit,
or registration may be transferred or assigned without the written
application to and consent of the City. Consent to transfer a franchise,
license, or right-of-way use agreement, permit or registration shall
not be unreasonably withheld by the City, and any costs incurred by
the City shall be paid by the ROW user to the extent allowed by law.
