[Ord. No. 928, 11-9-2017]
A. Franchise Or Other Agreement Required; Non-Transferable. 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.
Except as provided in this Article or as otherwise required by law,
no franchise, agreement or permit may be transferred without the written
application to and consent of the City based on the requirements and
policies of this Article and only after satisfaction of all applicable
procedural or substantive requirements established by law. The City
shall not unreasonably withhold its consent to transfer as provided
herein, but any costs incurred shall be paid by the applicant.
1.
Franchise. A franchise shall be obtained in conformance with
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 all other ordinances
of the City as may be applicable.
2.
ROW Agreement. An 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 Board 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 Section 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.
B. Franchises And Agreements Non-Exclusive. 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.
C. Lease Or Separate Authority Required For Use Of Other Public Property.
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.
D. Violation; Remedies, Unauthorized Holdover. 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 Subsection
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
licensee 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 ordinance,
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, licensee 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.
E. Definitions. As used in this Section, 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:
a.
Easements obtained by utilities or private easements in platted
subdivisions or tracts;
b.
Railroad rights-of-way and ground utilized or acquired for railroad
facilities; or
c.
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 person 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. 928, 11-9-2017]
Where an application is made for a permit by a ROW user to install
or repair its facilities, the applicant shall submit a map or plat
of where the excavation or facilities maintenance is to take place.
Such plat or map shall be specific as to location and depth of the
excavation or facilities maintenance, as to street address or other
location. For excavations or facilities maintenance involving streets
or curbs, a traffic control plan shall be needed and approved by the
City Clerk before beginning work. Unless otherwise approved by the
City Superintendent, such notice plan be provided to the City, in
writing at least two (2) business days in advance of the work, and
shall be subject to denial or modification by the Superintendent based
on public safety or other requirements in this Chapter.
[Ord. No. 928, 11-9-2017]
A. Except as provided in this Section, each ROW user shall provide,
at its sole expense, and maintain during the term of an agreement
or franchise, 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 an agreement or
franchise, whether such operations are by the ROW user, its officers,
employees and agents, or any subcontractors of the 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 five hundred thousand
dollars ($2,500,000.00), but in no event less than the individual
and combined sovereign immunity limits established by Section 537.610,
RSMo., 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 listed 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 Clerk. If the person
is self-insured, it shall provide the City proof of compliance regarding
its ability to self-insure and proof of its ability to provide coverage
in the above amounts. The insurance requirements in this Section or
otherwise shall not apply to a ROW user to the extent and for such
period during an agreement or franchise 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
is otherwise therefore so exempted unless otherwise provided by agreement
or franchise. The City reserves the right to waive any and all requirements
under this Section when deemed to be in the public interest.
B. Except as otherwise may be required by law for ROW users who have
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
is otherwise therefore so exempted, the person shall at all times
during the term of the permit, and for four (4) years thereafter,
maintain a performance and maintenance bond in a form approved by
the City Attorney. The amount of the bond will be five thousand dollars
($5,000.00) or the value of the restoration as determined by the City
Clerk, whichever is greater, for a term consistent with the term of
the permit plus four (4) additional years, conditioned upon the person's
faithful performance of the provisions, terms and conditions conferred
by this Chapter. Unless otherwise established in the permit, an annual
bond in an amount of fifty thousand dollars ($50,000.00) automatically
renewed yearly during this period shall satisfy the requirement of
this Section. The City shall be entitled to recover under the terms
of such bond the full amount of any loss and damage occasioned from
violation of the permit or provisions of this Article.
C. A copy of the liability insurance certificate and performance and
maintenance bond must be on file with the City Clerk.
[Ord. No. 928, 11-9-2017]
A. A ROW user shall promptly remove, relocate or adjust any facilities
located in the rights-of-way or in public easements as directed by
the Superintendent for a public improvement or as necessary to eliminate
a threat to public safety. Such removal, relocation or adjustment
shall be performed by the ROW user at the ROW user's sole expense
without expense to the City, its employees, agents, or authorized
contractors and shall be specifically subject to rules, regulations
and schedules of the City pertaining to such. The ROW user shall proceed
with the removal, relocation, or adjustment of facilities with due
diligence upon notice by the City Clerk to begin removal, relocation,
or adjustment. Where the ROW user facilities are located in whole
or in part in private easements, the ROW user shall promptly relocate
the facilities if the City has agreed to compensate the ROW user,
through the condemnation, purchase process, or other reasonable means
for the cost of relocation of the ROW user's facilities.
B. The City shall provide the ROW user with written notice of required
relocations or adjustments, the anticipated bid letting date, if any,
of the public improvement, and notice of the deadline for completion
of the relocations or adjustments. The ROW user shall respond within
ten (10) days with any conflicts and a proposed construction schedule
for relocation to be completed in not more than sixty (60) days from
date of the notice to ROW user, unless such other schedule is requested
and reasonably approved by the Superintendent. If facilities cannot
be fully relocated within rights-of-way, the ROW user shall be responsible
at its own cost to obtain alternative locations to timely relocate
its facilities.
C. If any facilities are not relocated in accordance with this Section,
the City or its contractors may relocate the facilities after notice
to the ROW user. The ROW user and its surety shall be liable to the
City for any and all costs incurred by the City. In the event the
ROW user is required to move its facilities in accordance with this
Section, any ordinary permit fee shall be waived. Failure to comply
with the relocation schedule set by the Superintendent shall be a
separate violation for each day subject to penalties as provided for
violation of this Article.
[Ord. No. 928, 11-9-2017]
The City retains the right to vacate any rights-of-way within
the City. The City may condition vacation of its rights-of-way on
granting and recording of an acceptable easement authorizing the City
to use the vacated area, or a portion thereof, for specific purposes
as may be deemed appropriate in the public interest. The City may
also condition such vacation on payment of any relocation costs that
may result from such vacation. In the event that the vacation of rights-of-way
requires relocation of facilities of a ROW user, such user shall bear
all costs of relocation or removal of its facilities unless otherwise
provided by the party initiating the vacation. In no event shall the
City be obligated to pay for relocation costs due to a vacation of
rights-of-way.
[Ord. No. 928, 11-9-2017]
A. A person owning abandoned facilities in the rights-of-way must remove
its facilities and replace or restore any damage or disturbance caused
by the removal at its own expense. The Superintendent may allow underground
facilities or portions thereof to remain in place if the Superintendent
determines that it is in the best interest of public safety to do
so.
B. At such time, the City may take ownership and responsibility of such
vacated facilities left in place; or the person shall provide information
satisfactory to the City that such person's obligations for its
facilities in the rights-of-way have been lawfully assumed by another
authorized entity; or submit to the City a proposal and instruments
for transferring ownership of its facilities to the City. If the person
proceeds under this Section, the City may, at its option purchase
the equipment, require the person, at its own expense, to remove it,
or require the person to post a bond in an amount sufficient to reimburse
the City for reasonable anticipated costs to be incurred to remove
the facilities.
C. Facilities of a person who fails to comply with this Section, and
whose facilities remain unused for two (2) years, shall be deemed
to be abandoned, after the City has made a good faith effort to contact
the person, unless the City receives confirmation that the person
intends to use the facilities.
D. Abandoned facilities are 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, (a) abating the nuisance, (b) taking possession and
ownership of the facility and restoring it to a usable function, or
(c) requiring the removal of the facility by the person.
[Ord. No. 928, 11-9-2017]
A. The City may, after reasonable notice and an opportunity to cure,
revoke a permit granted to a ROW user, without a fee refund, if one
(1) or more of the following occurs:
1.
A material violation of a provision of this Article or a permit,
including the violation of any provision of this Article or of any
additional provisions of a specific permit;
2.
An evasion or attempt to evade any material provision of the
permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the City or its citizens;
3.
A material misrepresentation of fact in the permit application;
4.
A failure to complete excavation or facilities maintenance by
the date specified in the permit, unless a permit extension is obtained
or unless the failure to complete the excavation or facilities maintenance
is due to reasons beyond the ROW user's control; or
5.
A failure to correct, within the time specified by the City,
excavation or facilities maintenance that does not conform to applicable
national safety codes, industry construction standards, or applicable
City Code provisions or safety codes that are no more stringent than
national safety codes or provisions, upon inspection and notification
by the City of the faulty condition.
B. If a permit is revoked, the ROW user shall also reimburse the City
for the City's reasonable costs, including administrative costs,
restoration costs and the costs of collection and reasonable attorneys'
fees incurred in connection with such revocation.