NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST PLAINS, MISSOURI, AS FOLLOWS:
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1 BILL NO ORDINANCE NO. AN ORDINANCE OF THE CITY OF WEST PLAINS, MISSOURI TO ENACT A NEW ARTICLE VI OF CHAPTER THIRTY-EIGHT, OF THE CODE OF ORDINANCES OF THE CITY OF WEST PLAINS TITLED STREETS, SIDEWALKS AND OTHER PUBLIC PLACES, RELATED TO POLE ATTACHMENTS WITHIN THE CITY S RIGHTS-OF-WAY MANAGEMENT. WHEREAS, the City is authorized to manage, regulate, and establish fees and procedures for the license, lease or use of its poles and to require a pole attachment agreement consistent with state law to attach to the City s poles and to charge a reasonable, non-discriminatory fee for use of the City s poles, including but not limited to Chapter 67 RSMo.; and WHEREAS, entities providing services through facilities located in the Rights-of-Way often seek to attach their equipment and facilities to poles and related structures owned by the City within the Rights-of-Way, and the City, therefore, desires to enact and reaffirm its regulations and requirements for attachment to such poles and related structures; and WHEREAS, while the City is not subject to federal statutes and regulation governing attachment of private equipment and facilities to poles, the Federal Communication Commission, in FCC Order adopted April 7, 2011, established a safe harbor for expanded unauthorized pole attachment penalties, up to $500 or equal to five times the current annual pole attachment fee rate plus $100, and procedures by owners of utility poles and related structures to ensure compliance with proper authorization processes for use of such poles by users, and the City desires to establish similar, accepted, fair and reasonable penalties and procedures; and WHEREAS, the City incurs certain costs associated with allowing such attachments, including but not limited to the administrative and actual costs of working with such attachments, seeking compliance with applicable requirements by such attaching entities, and otherwise, and therefore the City deems it necessary to establish pole attachment rental rates for private use of City-owned poles to ensure that the public is not unfairly bearing too great a burden from such private uses and that such public property is not being used for private purposes without fair compensation to the public. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST PLAINS, MISSOURI, AS FOLLOWS: Section 1: That Chapter Thirty-Eight, Streets, Sidewalks and Other Public Places, of the Code is hereby amended by enacting a new Article VI, attached hereto as Exhibit A and incorporated herein by reference. It is the intention of the City Council, and it is hereby ordained that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the City of West Plains, Missouri, and the Sections of this Ordinance may be renumbered to accomplish such intention. Section 2: The provisions of this Ordinance are severable and if any provision hereof is declared invalid, unconstitutional or unenforceable, such determination shall not affect the validity of the remainder of this Ordinance. 1
2 Section 3: This Ordinance shall be in full force and effect from and after the date of its passage and approval. PASSED AND APPROVED THIS DAY OF CITY OF WEST PLAINS, MISSOURI ATTEST: By: MAYOR JACK PAHLMAN CITY CLERK MALLORY PREWETT
3 Sec Attachment Fee Required. EXHIBIT A ARTICLE VI POLE ATTACHMENTS No Person (as defined in Article V Chapter 38), other than the City of West Plains, Missouri ( 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 (as defined in Article V Chapter 38) 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 of Seven dollars ($ 7.00) per attachment per pole per year or as may be hereinafter approved as alternative lawful compensation in a pole attachment agreement approved by the City Council after the date hereof, or such other amount as may be established hereinafter by the City Council by resolution or ordinance in conformance with law, but in no event higher than such amount as may be allowed to be imposed by law, including but not limited to RSMo., if applicable. 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, in addition to any penalties or other requirements, not limited to those set out in Section , the Person 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 Person 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. Sec Payment and Affidavit When. Unless otherwise provided by a pole attachment agreement, amounts due under this Article 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 per month, on all amounts 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. Sec Agreement and Permit Required. 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 Article. 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 (as defined in Article V Chapter 38) or Rights-of-Way Use Agreement (as defined in Article V Chapter 38), 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.
4 Nothing herein shall be interpreted to contravene any unwaived rights in a duly authorized and lawful existing agreement with the City. Sec Lease Required for Public Lands. Unless otherwise provided, attachment to any City-owned or controlled utility pole, fixture or facility within non-rights-of-way public property of the City shall be permitted only if a lease agreement or other separate written approval has been negotiated and approved by the City with such reasonable terms as the City may require. Sec Compliance with Law. The City and any user shall be subject to all applicable federal, state, and local law and specification, 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. Sec Penalty for Attachments Without Agreement and Permit. Any Person or entity who shall, 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, whether the Person has failed to obtain a pole attachment agreement or whether a former pole attachment agreement has expired or been terminated, shall be subject to a penalty of an unauthorized attachment fee of two hundred and fifty dollars ($250) per pole per unauthorized attachment. Any Person who shall attach or maintain any fixture to 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 permit, or in violation of the pole attachment agreement, pole attachment permit, or this chapter, shall be subject to a penalty of an unauthorized attachment fee per pole per attachment equal to five 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 article or the attachment is otherwise unauthorized. Provided that no Person shall be subject to the penalties in this section until after the Person has been provided a reasonable time, of not more than sixty (60) days, to cure the violation. Up to seventy-five percent (75%) of the penalties provided for in this section may be waived if the violation is self-reported, the violation is remedied in a timely manner, and the City s costs in enforcing the applicable pole attachment agreement, pole attachment permit, or this chapter are reimbursed. Penalties under this section shall be required to be paid on a monthly basis in accordance with the procedures and interest of Section 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 (i) that a dispute remains as to terms in the executed agreement exclusively as to the Protestable Terms in such agreement, and (ii) 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
5 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 paragraph 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 ordinance 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 ordinance 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. Sec Expedited Appeal of Agreements. Any Person or entity who is required to obtain a pole attachment agreement under this article may avoid penalties under Section 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 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. Sec Indemnification. 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
6 incurred that are caused or result from, in whole or in part, the attachment, or attaching Person or entity. Sec Insurance. Before any user 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, such user shall maintain, at its sole expense, 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 user, the City, and the City s officials, officers, and employees from claims which may arise from such use, whether by the user, its officers, directors, employees and agents, or any subcontractors of 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 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 $2,762,789.00, but in no event less than the individual and combined sovereign immunity limits established by 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 with which states that the City is an additional insured with full and equivalent coverage as the insured under the insured s policy 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. Any self-insurance or deductible above $50, must be declared to and pre-approved by the City. The insurance requirements in this section or otherwise shall not apply to a user to the extent and for such period as the user is exempted from such requirements pursuant to (6)(a) RSMo. and has on file with the City Clerk an affidavit certifying that the user has twenty-five million dollars in net assets and the facts otherwise establishing that the user is therefore so exempted. Sec Penalty for Violation. Any Person violating any provision of this article 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.
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