(a) The City has jurisdiction and exercises regulatory management authority over all City Public Rights of Way pursuant to the City Charter and State law. The City’s purpose for exerting its management authority over the Public Rights of Way is to protect and efficiently manage the public’s resources, to ensure fair and non-discriminatory access to the Public Right of Way, and to protect the public health, safety and welfare.
(b) The City has jurisdiction and exercises regulatory management over each Public Right of Way whether the City has a fee, easement, or other legal interest in the Right of Way. The City has jurisdiction and regulatory management of each Right of Way whether the legal interest in the Right of Way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.
(c) No Person may occupy or encroach on a Public Right of Way without the permission of the City. The City grants permission to use Rights of Way through Franchise Agreements and Construction permits.
(d) The exercise of jurisdiction and regulatory management of a Public Right of Way by the City is not official acceptance of the Right of Way, and does not obligate the City to maintain or repair any part of the Right of Way.
(e) The City retains the right and privilege to cut or move any Communications Facilities located within the Public Rights of Way as the City may determine to be necessary, appropriate or useful in response to a public health or safety emergency.
(f) The City desires to champion the ready availability of Communications Services for all its residential and commercial citizens by providing infrastructure and amenities that make Marion a better place to do business. The City is committed to authorizing the private access and use of the Public Right of Ways for such Services so long as such use is consistent with and does not unduly burden or interfere with the principal purpose of the Public Ways, which is to facilitate the free transit of Persons and goods in commerce for the public’s health, safety and welfare.
(g) The City holds the health, safety, welfare, quality of life and opportunities to prosper, as well as such physical assets such as the Public Right of Way, in trust for all of its citizens and has a fiduciary responsibility to assure that any use of City resources, especially its Public Ways, benefits all of the citizens and, where it is deemed appropriate, allows for the recovery of a fair and reasonable compensation from private entities using public resources.
(h) If Communications Providers make “percentage of gross revenue” payments which account for only portion of the Communications Services they provide within the City, and then they are not compensating the City fairly for their private use and enjoyment of public assets and resources. Such Providers may derive an unfair economic advantage and such unfair competition does not foster the City’s desired technological and business growth. Among the purposes of this article is not only to ensure that the public is properly compensated for the private use of City assets and resources, but also to ensure that all similarly-situated Communications Providers are treated similarly and fairly to foster technological growth and innovation.
(i) Certain Communications, Cable or Utility Providers who provide no Communications Services within the City but occupy City Rights of Way do not fall within the scope of this article and shall be governed instead by City of Marion Ordinance which adopts a right of way license process and establishes rates for such Providers.
(a) The fees and costs addressed in this article, and any compensation charged and paid for regarding the use of the Public Rights of Way addressed in this article, are separate from and in addition to any and all other federal, State, local, and City fees, taxes, or charges as may be levied, imposed, or due from a Communications Provider, its customers or subscribers, or on account of the lease, sale, delivery, or transmission of Communications Services.
(b) The City has determined that any fee provided for by this article is not subject to the property tax limitations of Article XI, of the Kansas Constitution. These fees are not imposed on property or property owners.
(c) The fees and costs provided for in this article are subject to applicable federal and State laws.
For the purpose of this article the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined herein shall be given the meaning set forth in the Communications Act of 1934, as amended, the Cable Act, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act. If not defined there, the words shall be given their common and ordinary meaning.
(a) ACCESSORY EQUIPMENT means any equipment serving or being used in conjunction with a wireless facility or wireless support structure including, but not limited to, utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets and storage sheds, shelters or similar structures.
(b) ANTENNA means communications equipment that transmits or receives electromagnetic radio signals used in the provision of wireless services.
(c) APPLICANT means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services and that submits an application.
(d) APPLICATION means a request submitted by an applicant to an authority for:
(1) The construction of a new wireless support structure or new wireless facility;
(2) The substantial modification of a wireless support structure or wireless facility; or
(3) Collocation of a wireless facility or replacement of a wireless facility.
(e) AUTHORITY means any governing body, board, agency, office or commission of a city, county or the state that is authorized by law to make legislative, quasi-judicial or administrative decisions concerning an application. "Authority" shall not include any school district as defined in K.S.A. 72-8301, and amendments thereto, or any court having jurisdiction over land use, planning, zoning or other decisions made by an authority.
(f) BASE STATION means a station that includes a structure that currently supports or houses an antenna, transceiver, coaxial cables, power cables or other associated equipment at a specific site that is authorized to communicate with mobile stations, generally consisting of radio transceivers, antennas, coaxial cables, power supplies and other associated electronics. "Base station" does not mean a tower or equipment associated with a tower and does not include any structure that, at the time the relevant application is filed with the authority, does not support or house equipment described in this paragraph.
(g) CABLE ACT Shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. § 521, et seq.
(h) CABLE SERVICE Is to be interpreted consistent with federal law and means the one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, required for the selection or use of such video programming or other programming service.
(i) CABLE SERVICE PROVIDER Any provider of Cable Service.
(j) CITY The City of Marion, a Kansas municipal corporation, and individuals authorized to act on the City’s behalf.
(k) CITY COUNCIL The elected governing body of the City of Marion, Kansas.
(l) COLLOCATION means the mounting or installation of wireless facilities on a building, structure, wireless support structure, tower, utility pole, base station or existing structure for the purposes of transmitting or receiving radio frequency signals for communication purposes.
(m) CONTROL Actual working control in whatever manner exercised.
(n) CITY PROPERTY Means and includes all real property owned by the City and all property held in a proprietary capacity by the City but does not include Public Rights of Way and Utility Easements as defined herein.
(o) COMMUNICATIONS All plant, equipment and systems, other than customer premises equipment, used by any Facilities or Facilities Communications Provider. For the purposes of this article, Facilities used by Cable Service Providers to provide Cable Service are Communications Facilities.
(p) COMMUNICATIONS PROVIDER Any provider of Communications Services and includes, but is not limited to:
(1) Person who directly or indirectly owns, controls, operates or manages Communications OR
(2) Facilities within the City and Cable Service Providers.
(q) COMMUNICATIONS SERVICES Any Service provided for the purpose of transmission of information including, but not limited to, voice, video, or data, without regard to the transmission protocol employed, whether or not the transmission medium is owned by the Provider itself. Communications Services includes all forms of telephone services and voice, video, data or information transport and expressly includes Cable Service offered by a Cable Service Provider, but does not include:
(1) open video system service, as defined in 47 C.F.R.76;
(2) private Communications System services provided without using the Public Rights of Way;
(3) over-the-air radio or television broadcasting to the public-at-large from Facilities licensed by the Federal Communications Commission or any successor thereto; and (4) direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act.
(r) CONDUIT Any structure, or portion thereof, containing one or more Ducts, Conduits, manholes, bolts, cables, fiber, or other infrastructure used by or for any telegraph, telephone, electrical utility, conductors, or Cable Service.
(s) CONSTRUCTION Any activity in the Public Rights of Way resulting in physical change thereto, including excavation or placement of structures, but excluding routine maintenance or repair of existing Facilities.
(t) DAYS Calendar days unless otherwise specified.
(u) DISTRIBUTED ANTENNA SYSTEM means a network that distributes radio frequency signals and consisting of:
(1) Remote communications or antenna nodes deployed throughout a desired coverage area, each including at least one antenna for transmission and reception;
(2) a high capacity signal transport medium that is connected to a central communications hub site; and
(3) radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the antennas to provide wireless or mobile service within a geographic area or structure.
(v) DUCT A single enclosed raceway for conductors or cable.
(w) EMERGENCY Has the meaning provided for in K.S.A. 48-948
(x) EXISTING STRUCTURE means a structure that exists at the time an application to collocate wireless facilities on a structure is filed with an authority. The term includes any structure that is currently supporting or designed to support the attachment of wireless facilities, including, but not limited to, towers, buildings and water towers.
(y) FACILITIES Communications Facilities as defined herein.
(z) FEDERAL The federal administrative agency, or its lawful COMMISSION successor authorized to regulate and oversee COMMNUICATIONS Communications or Cable Service Providers on a national level.
(aa) FRANCHISEOR An agreement between the City and a Communications
(bb) FRANCHISE Provider which grants a privilege to the Communications AGREEMENT Provider to use Public Right of Way within the City for a limited, dedicated purpose and in return for specific compensation called a Franchise Fee.
(cc) FRANCHISEE A Communications Provider who is a non-breaching party to an unexpired Franchise Agreement with the City.
(dd) KCCC The statutorily created State agency in the State of Kansas responsible for licensing and regulation of certain Communications Providers as set forth in Kansas law, or its lawful successor.
(ee) OVERHEAD FACILITIES Utility poles, Utility Facilities and Communications Facilities above the surface of the ground, including the underground supports and foundations for such Facilities.
(ff) PERSON An individual, corporation, company, association, joint stock company or association, firm, partnership, or limited liability company.
(gg) PERMITTEE An individual, corporation, company, association, joint stock company or association, firm, partnership, or limited liability company granted access by permit or franchise agreement access to the public right of way.
(hh) PRIVATEA system, including the Construction, maintenance or COMMUNICATIONS operation of the system, for the provision of a service or NETWORK any portion of a service which is owned or operated exclusively by a Person for their own use and not for resale, directly or indirectly. "Private communications network" includes services provided by the State of Kansas.
(ii) PUBLIC RIGHT(S) OF WAY Include, but are not limited to: Existing and future City OR RIGHT OF WAY streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements, and other public ways generally open to travel, including the subsurface under and air space over these ways; but does not include parks, parkland or other City Property not generally open to the public for travel. This definition applies only to the extent of the City’s right, title, interest or authority to grant a Franchise to occupy and use such areas for Communications Facilities. “Public Rights of Way or Right of Way” shall also include Utility Easements as defined below.
(jj) REPLACEMENT includes constructing a new wireless support structure of comparable proportions and of comparable height or such other height that would not constitute a substantial modification to an existing structure in order to support wireless facilities or to accommodate collocation and includes the associated removal of the pre-existing wireless facilities, if any, or wireless support structure.
(kk) RIGHT OF WAY USE FEE The fee imposed upon a Communications Provider for its occupation of or use of the City’s Public Right of Way under this article which is based upon all the Services provided by the Provider within the City.
(ll) SEARCH RING means a shape drawn on a map to indicate the general area within which a wireless services support structure should be located to meet radio frequency engineering requirements, taking into account other factors, including topography and the demographics of the service area.
(mm) SMALL CELL FACILITY means a wireless facility that meets both of the following qualifications:
(1) Each antenna is located inside an enclosure of no more than six cubic feet in volume, or in the case of an antenna that has exposed elements, the antenna and all of the antenna's exposed elements could fit within an imaginary enclosure of no more than six cubic feet; and
(2) primary equipment enclosures that are no larger than 17 cubic feet in volume, or facilities comprised of such higher limits as the federal communications commission has excluded from review pursuant to 54 U.S.C. § 306108. Associated equipment may be located outside the primary equipment, and if so located, is not to be included in the calculation of equipment volume. Associated equipment includes, but is not limited to, any electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, cut-off switch and vertical cable runs for the connection of power and other services.
(nn) SMALL CELL NETWORK means a collection of interrelated small cell facilities designed to deliver wireless service.
(oo) STATE State of Kansas
(pp) SUBSTANTIAL means a proposed modification to an existing wireless MODIFICATION support structure or base station that will substantially change the physical dimensions of the wireless support structure or base station under the objective standard for substantial change, established by the federal communications commission pursuant to 47 C.F.R.1.40001.
(qq) TELECOMMUNICATIONS ACT the Communications Policy Act of 1934, as amended by subsequent enactments including the Telecommunications Act of 1996, 47 U.S.C. § 151 et seq.
(rr) TRANSMISSION EQUIPMENT means equipment that facilitates transmission for a wireless service licensed or authorized by the federal communications commission including, but not limited to, radio transceivers, antennas, coaxial or fiber optic cable and regular and backup power supply. Transmission equipment includes equipment associated with wireless services including, but not limited to, private, broadcast and public safety services such as wireless local area network services, and services utilizing a set of specifications developed by the institute of electrical and electronics engineers for interface between a wireless client and a base station or between two wireless clients, as well as unlicensed wireless services and fixed wireless services, such as microwave backhaul.
(ss) UNDERGROUND FACILITIES Utility and Communications Facilities located under the surface of the ground, but does not include underground foundations or supports for "Overhead Facilities."
(tt) UTILITY EASEMENT Any easement granted to or owned by the City and acquired, established, dedicated, or devoted for public utility purposes. “Utility Easement” does not include any easement dedicated solely for City use or Facilities or any easement where the proposed use is inconsistent with the terms and conditions of the easement granted to or owned by the City.
(uu) UTILITY FACILITIES The plant, equipment and property, including but not limited to the poles, pipes, mains, Conduits, Ducts, cable, wires, plant and equipment located under, on, or above the surface of the ground within the Public Right of Way of the City and used or to be used for the purpose of providing utilities, Cable or Communications Service.
(vv) WIRELESS FACILITY means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including, but not limited to:
(1) Equipment associated with wireless services such as private, broadcast and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul; and
(2) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies and comparable equipment, regardless of technological configuration “Wireless facility" does not mean any wired connections from a wireless support structure or base station to a hub or switching location.
(ww) WIRELESS SERVICES means "personal wireless services" and "personal wireless service facilities" as defined in 47 U.S.C. § 332(c)(7)(C), including commercial mobile services as defined in 47 U.S.C. §332(d), provided to personal mobile communication devices through wireless facilities or any fixed or mobile wireless services provided using wireless facilities.
(xx) WIRELESS means any person that builds or installs transmission INFRASTRUCTURE equipment, wireless facilities or wireless support PROVIDER structures, but that is not a wireless services provider.
(yy) WIRELESS SERVICES PROVIDER means a provider of wireless services.
(zz) WIRELESS SUPPORT means a freestanding structure, such as a monopole, STRUCTURE guyed or self-supporting tower or other suitable existing or alternative structure designed to support or capable of supporting wireless facilities. "Wireless support structure" shall not include any telephone or electrical utility pole or any tower used for the distribution or transmission of electrical service.
(aaa) UTILITY POLE means a structure owned or operated by a public utility as defined in K.S.A. 66-104, and amendments thereto, a municipality as defined in K.S.A. 75-6102, and amendments thereto, or an electric cooperative as defined in K.S.A. 2016 Supp. 17-4652, and amendments thereto, that is designed specifically for and used to carry lines, cables or wires for telecommunications, cable, electricity or to provide lighting.
(bbb) WATER TOWER means a water storage tank or a standpipe, or an elevated tank situated on a support structure that was originally constructed for use as a reservoir or facility to store or deliver water.
This Article shall apply to all Communications Providers who use or occupy the Public Rights of Way to provide Communications Services to Persons within the City. Communications Providers whose facilities occupy the Public Rights of Way but who provide no Communications Services within the City are not subject to this article, but must comply with Ordinance. The purpose of registration is:
(a) To assure that all Communications Providers who have Facilities within the City Rights of Way and who provide Communications Services within the City using the Public Right of Way comply with the ordinances, rules and regulations of the City.
(b) To provide the City with accurate and current information concerning Communications Providers who offer Communications Service within the City and who own or operate Communications Facilities within the City Right of Way.
(c) To assist the City in the enforcement of this article, management and caretaking of the Public Right of Way, and the collection of any City Franchise fees or Right of Way Use Fees or charges.
(a) Unless excepted in subsection (b), all Communication Providers who own, operate or use Facilities within the City’s Public Right of Way and who provide Communication Services to any Person or customer within the City, shall register with the City, on a form provided by the City, within forty-five (45) Days of the effective date of this article. Any prospective Communications Providers who want to install or use Communications Facilities within the City’s Public Right of Way to provide Communications Services within the City after the effective date of this article shall register with the City, on a form provided by the City, prior to installing Facilities or providing Services.
(b) Unless excepted in subsection (b)(1) and (2) below, after registering with the City pursuant to subsection (a), the Communication Provider shall, by December 31st of each year, file with the City a new annual registration form if it intends to maintain Facilities or provide Services at any time in the following calendar year.
(1) Communications Providers who file an initial registration pursuant to subsection (a) on or after September 30th shall not be required to file an annual registration until December 31st of the following year.
(2) Communications Providers who are non-breaching parties to an unexpired Franchise Agreement and pay all Franchise Fees or Right of Way Use Fees due and owing on all the Services they provide within the City.
(c) In lieu of filing the City’s registration form, a Communications Provider may submit to the City a copy of its application and approved license from either: a) the Kansas Corporation Commission (KCC); or b) the Federal Communications Commission. To the extent not included in the application and license materials submitted pursuant to this subsection (c), registrants also shall provide the following information:
(1) The identity and legal status of the registrant, including the name, address, and telephone number of the duly authorized officer, agent, or employee responsible for the accuracy of the registration information.
(2) The name, address, and telephone number for the duly authorized officer, agent, or employee to be contacted in case of an Emergency.
(3) A description of the registrant’s existing or proposed Facilities within the City, a description of the Facilities that the registrant intends to construct, and a description of the Communications Service that the registrant intends to offer or provide to Persons, firms, businesses, or institutions within the City.
Unless excepted in subsection (a), each registration form shall be accompanied by a nonrefundable registration fee in an amount to be determined by resolution of the City Council. The registration fee required by this Section shall be subject to all applicable limitations imposed by federal or State law.
(a) Communications Providers who are in breach of an unexpired Franchise Agreement and/or delinquent in the payment of all Franchise Fees or Right of Way Use Fees to the City are ineligible to apply.
(b) The City shall only assess fees or charges for the actual costs relating to the granting or processing of an application that are directly incurred by the authority and the authority shall not charge any market-based or value-based fees for the processing of an application. Such fees and charges shall be reasonably related in time to the occurrence of such costs.
(c) An applicant shall not be required to pay or reimburse the City for a consultant or other third-party fees based on a contingency-based or results-based arrangement. Any travel expenses included must be reasonable and directly related to the application.
(d) The total charges and fees assessed by the authority shall not exceed:
(1) $500 for a collocation application, that is not a substantial modification, small cell facility application or distributed antenna system application; or
(2) $2,000 for an application for a new wireless support structure or for a collocation application that is a substantial modification of a wireless support structure.
The following Communications Providers and Facilities are exempted from registration:
(a) Communications Facilities owned and operated exclusively by the State or a political subdivision of this State, for their own use.
(b) A Private Communications Network, provided in a manner that does not occupy any Public Rights of Way.
No Person shall commence or continue with the Construction, excavation, installation or operation of Facilities within a Public Right of Way except as provided in Sections 12-611 through 12-627, and in compliance with all applicable City and State codes, rules, and regulations.
Facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, State and local codes, rules and regulations including the National Electrical Code and the National Electrical Safety Code.
Except in the event of an emergency, no Person shall construct or install any Facilities within a Public Right of Way without first obtaining a Construction or Excavation permit and paying any applicable Construction permit fee as established by City Code and the City’s Right of Way permitting process. No permit shall be issued for the Construction or installation of Communications Facilities within a Public Right of Way unless:
(a) The requestor, if so required, has first filed a registration form with the City as required by Sections 12-604:607; and
(b) The requestor has applied for and received a Franchise pursuant to Sections 12-628:643.
(c) In the event of an emergency and in compliance with City Code, a permittee or its contractor may perform work on its Facilities to address the emergency without first obtaining a permit from the City provided it attempts to notify the City prior to commencing the emergency work and in any event applies for a permit from the City and pays any applicable permit fee as soon as reasonably practicable. As used in this Section, “emergency” means a circumstance in which immediate repair to damaged or malfunctioning Facilities is necessary to restore lost service or prevent immediate harm to Persons or property.
Requests for permits to construct Communications Facilities shall be submitted upon forms to be provided by the City and shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate:
(a) That the Facilities will be constructed in accordance with all Federal, State, and City applicable codes, rules and regulations.
(b) That the Facilities will be constructed in accordance with any applicable Franchise Agreement.
(c) The location and route of all Facilities to be installed aboveground or on existing utility poles.
(d) The location and route of all Facilities on or in the Public Rights of Way to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route within the City. Existing Facilities shall be differentiated on the plans from new Construction. If requested, a cross section shall be provided showing new or existing Facilities in relation to the street, curb, sidewalk or Right of Way.
(e) The Construction methods to be employed for protection of existing structures, fixtures, and Facilities within or adjacent to the Public Rights of Way, and description of any improvements that applicant proposes to temporarily or permanently remove or relocate.
All Construction permit requests shall be accompanied by the verification of a registered professional engineer, or other qualified and duly authorized representative affirming that the drawings, plans and specifications submitted comply with applicable technical codes, rules and regulations.
All Construction permit applications shall be accompanied by a written Construction schedule, which shall include an estimated date for completion of Construction. The Construction schedule is subject to approval by the Public Works Director.
Prior to issuance of a Construction permit, the requestor shall pay a permit fee in an amount established in the City Code and City’s Right of Way excavation and permitting process. Such fee shall be designed to defray the costs of City administration of the Construction. The City shall waive the Construction Permit Fee if the requestor is a non-breaching party to an unexpired Franchise Agreement with the City or is a Provider acting in compliance with this article, including Right of Way Use Fee payment obligation.
If satisfied that the plans and documents submitted comply with all requirements of this article and with any applicable Franchise Agreement, the Public Works Director shall issue a permit authorizing Construction of the Facilities, subject to such further conditions affecting the time, place and manner of performing the work.
Except in the case of an Emergency, the permittee shall notify the Public Works Director not less than three (3) working Days in advance of any excavation or Construction in the Public Rights of Way. Additionally, Kansas Dig Safe must have been contacted and the proper locating completed.
All Construction practices and activities shall be in accordance with the permit and the approved final plans and specifications for the Facilities. The Public Works Director and representatives shall be provided access to the work site and such further information as they may require ensuring compliance with such requirements.
Subject to the notice requirements in Section 4-101, all work which does not comply with the permit, the approved or corrected plans and specifications for the work, or the requirements of this article, shall be removed at the sole expense of the permittee. The City is authorized to stop work in order to assure compliance with the provision of this article.
The permittee shall promptly complete all Construction activities so as to minimize disruption of the Public Rights of Way and other public and private property. All Construction work within Public Rights of Way, including restoration, must be completed within one hundred twenty (120) Days of the date of issuance of the Construction permit unless an extension or an alternate schedule has been approved by the appropriate City official.
Unless otherwise provided in an unexpired Franchise Agreement, if requested by the City, the permittee shall furnish the City with up to two (2) complete sets of plans drawn to scale and accurately depicting the location of all Facilities constructed pursuant to the permit. These plans shall be submitted to the City Engineer or designee within sixty (60) Days after completion of Construction, in a format acceptable to the City.
(a) When a permittee, or any Person acting on its behalf, does any work in or affecting any Public Rights of Way or City Property, it shall at its own expense promptly restore such ways or property to as good an order and condition as existed prior to the work, unless otherwise directed by the City. Repairs guaranteed by permittees shall meet all of the following conditions in order to remain in conformance with this article:
(1) The entire area shall be free from delamination of the approved surface material.
(2) No distortion of one-half inch (1/2” or greater shall exist over more than five percent (5%) of the total surface area of the repair.
(3) No cracks of one-quarter inch (1/4”) or greater shall exist in the surface or edges of the repair totaling more than five percent (5%) of the repair perimeter.
(4) Distortion conditions over one inch may necessitate that full repairs be completed within twenty-four (24) hours of notification by the City.
(b) Unless otherwise provided in an unexpired Franchise Agreement, the permittee shall, for a period of five (5) years thereafter, be fully liable for all defects in materials and workmanship relating to such Construction or Restoration.
(c) If weather or other conditions do not permit the complete restoration required by this Section, the permittee shall temporarily restore the affected Rights of Way or property. Such temporary restoration shall be at the permittee’s sole expense and the permittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
(d) If the permittee fails to restore Rights of Way or property to good order and condition, the City shall give the permittee written notice and provide the permittee a reasonable period of time not exceeding thirty (30) Days to restore the Rights of Way or property. If, after notice, the permittee fails to restore the Rights of Way or property to as good an order and condition as existed before the work was undertaken, the City shall cause such restoration to be made at the expense of the permittee.
(e) A permittee or other Person acting on its behalf shall use suitable barricades, flags, flagging attendants, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any Person, vehicle or property by reason of such work in or affecting such Rights of Way or property.
Unless otherwise provided in an unexpired Franchise Agreement, a performance bond or other form of surety acceptable to the City equal to at least 100% of the estimated cost of Constructing Permittee’s Facilities within the Public Rights of Way of the City shall be provided to the City before Construction is commenced.
(a) Unless otherwise provided in an unexpired Franchise Agreement, the surety shall remain in force until sixty (60) Days after substantial completion of the work, as determined in writing by the City, including restoration of Public Rights of Way and other property affected by the Construction.
(b) Unless otherwise provided in an unexpired Franchise Agreement, the surety shall guarantee, to the satisfaction of the City:
(1) Timely completion of Construction;
(2) Construction in compliance with applicable plans, permits, technical codes and standards;
(3) Proper location of the Facilities as specified by the City;
(4) Restoration of the Public Rights of Way and other property affected by the Construction; and
(5) Timely payment and satisfaction of all claims, demands or liens for labor, material, or services provided in connection with the work.
All Facilities located within the Public Right of Way shall be constructed, installed and located in accordance with the terms of the Construction permit and approved final plans and specifications for the Facilities, and all applicable City codes, rules and regulations. Whenever any existing electric utilities or Communications Facilities are within a Public Right of Way and are located underground or required to be located underground by City Zoning Code, a Communications Provider occupying or proposing to occupy the same Public Right of Way must also locate its Facilities underground at its own expense.
No Communications or Utility Provider may locate or maintain its Facilities so as to interfere with the City’s use of the Public Rights of Way or to unreasonably interfere with use by the general public or by other Persons authorized to use or occupy the Public Rights of Way. All use of Public Rights of Way shall be consistent with City codes, ordinances and regulations.
(a) A Communications Provider shall, at no cost to the City, temporarily or permanently remove, relocate, change or alter the position of any Facilities within the Public Rights of Way, including relocation of aerial to facilities underground, when requested to do so in writing by the City.
(b) Nothing in this Section shall be deemed to preclude a Communications Provider from requesting reimbursement or compensation from a third party, pursuant to applicable laws, regulations, tariffs or agreements, provided that the Communications Provider shall timely comply with the requirements of this Section regardless of whether or not it has requested or received such reimbursement or compensation.
(c) The City shall provide at least 30 days written notice of the time by which the Communications Provider must remove, relocate, change, alter or underground its Facilities. The City may grant extensions upon the Communications Provider’s request. If a Communications Provider fails to remove, relocate, alter or underground any Facility as requested by the City and by the date established by the City, the Communications Provider shall pay all costs incurred by the City due to such failure, including but not limited to costs related to project delays. Upon such failure, the City may cause the Facility to be removed, relocated, altered or undergrounded at the Communications Provider’s sole expense and shall use qualified personnel or contractors consistent with applicable State and federal safety laws and regulations. Upon receipt of a detailed invoice from the City, the Communications Provider shall reimburse the City for the costs the City incurred within thirty (30) Days.
(d) Pursuant to K.S.A. 66-2019 the City provides the wireless services provider or wireless infrastructure provider with a minimum of 180 days advance written notice to comply with such relocation or adjustment, unless circumstances beyond the authority's control require a shorter period of advance notice.
Within thirty (30) Days following written notice from the City or at a later date agreed upon by the parties, any Communications Provider or other Person who owns, controls or maintains any unauthorized system, Facility, or related appurtenances within the Public Rights of Way shall, at its own expense, remove such system, Facilities and/or appurtenances from the City Public Rights of Way. A system, Facility, or appurtenance is subject to removal under this Section in the following circumstances:
(a) One (1) year after the expiration or termination of the Communications Provider's Franchise Agreement, unless the City has provided written authorization for abandonment in place.
(b) Upon abandonment of a Facility within the Public Rights of Way. A Facility will be considered abandoned when it is deactivated, out of service, or not used for its intended and authorized purpose for a period of ninety (90) Days or longer. A Facility will not be considered abandoned if it is temporarily out of service during performance of repairs or if the Facility is being replaced. The City shall contact the Provider before concluding that a Facility is abandoned. A Facility may be abandoned in place and not removed if the City authorizes such abandonment and non-removal in writing and there is no apparent risk to the public safety, health, or welfare.
(c) If the Facility was Constructed or installed without the appropriate prior authority at the time of Construction or installation.
(d) If the Facility was Constructed or installed at a location not authorized by the Communications Provider's Franchise or other legally sufficient permit.
Communications Provider is required to make a good faith effort to cooperate with the City.
(a) By January 1 of each year, a Communications Provider shall provide the City with a schedule of their known proposed Construction activities in or near the Public Rights of Way or affecting the Right of Way.
(b) If requested by the City, a Communications Provider shall meet with the City to schedule and coordinate Construction in the Public Rights of Way.
(c) All Construction locations, activities and schedules shall be coordinated, as ordered by the City Engineer or designee, to minimize public inconvenience, disruption or damages.
(a) Prior to occupying City Public Rights of Way, all Communications Providers who plan to provide Services within the City or who provide Services within the City shall register with the City pursuant to Section 12-605, shall file a Franchise Application with the City pursuant to Section 12-629, and shall enter into a Franchise Agreement with the City.
(b) Multiple Franchises Not Required. Notwithstanding anything to the contrary in this article, a Communications Provider who is a non-breaching party to an unexpired Franchise Agreement for a Service it provides within the City shall not be required to enter into a multiple or different Franchise Agreements for its provision of a different Service within the City as long as the Provider has registered all its Services with the City pursuant to Section 12-605 of this article. Further, nothing in this subsection waives a Provider’s duty to pay Franchise Fees or Right of Way Use Fee as required under Section 12-634.
(c) Any Person whose Communications Facilities occupy the Public Right of Way and are used to provide Services within the City, with or without a valid Franchise Agreement from the City, must comply with all provisions of this article, specifically including payment of any applicable Right of Way Fees pursuant to Section 12-634.
(a) Any Person who desires a Franchise Agreement with the City must first file a Franchise Application with the City Administrator. The purpose of a Franchise Application is to provide the City with necessary information regarding the Communications Provider’s Services and Public Right of Way needs. The Franchise Application shall include, at minimum, the following information:
(1) The identity of the applicant.
(2) A description of the services to be offered or provided by the applicant over its Facilities, including an indication of whether the applicant will provide solely Cable Service.
(3) Engineering plans, specifications, and a network map in a form customarily used by the applicant of the Facilities located or to be located within the Public Rights of Way in the City, including the location and route requested for applicant's proposed Facilities.
(4) The area or areas of the City the applicant desires to serve and a preliminary Construction schedule for build-out to the entire Franchise area.
(5) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the Facilities and to offer or provide the Communications Service proposed.
(6) An accurate map showing the location of any existing Facilities in the City that applicant intends to use or lease.
(b) Any Communications Provider occupying the Public Rights of Way without a Franchise Agreement as of the effective date of this article shall file a Franchise Application pursuant to this Section within forty-five (45) Days of the effective date of this article.
The City shall issue a written preliminary determination granting or denying the Franchise application in whole or in part. If the Franchise Application is denied, the written determination shall include the reasons for denial. The City shall evaluate the Franchise Application based upon: the continuing capacity of the Public Rights of Way to accommodate the prospective Franchisee’s proposed Facilities; the prospective Franchisee’s legal, technical and financial ability to comply with the provisions of this article; and the prospective Franchisee’s compliance with applicable Federal, State and local laws, rules, contractual obligations and regulations.
(a) No Franchise granted pursuant to this article shall convey any right, title or interest in the Public Rights of Way, but shall be a non-exclusive grant to use and occupy the Public Rights of Way for the limited purposes, terms, and conditions provided in the Franchise Agreement.
(b) The rights granted by any Franchise Agreement are limited to the right to use the Public Rights of Way for the provision of Communications Services as defined herein. Nothing in the Franchise shall be construed to prevent the City from grading, paving, repairing and/or altering any Public Rights of Way, constructing, laying down, repairing, relocating or removing City infrastructure or establishing any other public work, utility or improvement of any kind, including repairs, replacement or removal of any City Infrastructure. If a Franchisee’s Facilities interfere with the Construction, repair, replacement, alteration or removal of any Public Rights of Way, public work, City utility, City improvement or City infrastructure, except those used to provide competing Communications Services, such Facilities shall be removed or relocated as provided in 12-625:626, in a manner acceptable to the City and consistent with industry standard engineering and safety codes.
(c) Application to Franchise Agreements Adopted After this article. A Franchise Agreement granted hereunder shall at all times comply with the requirements of this article unless this article expressly authorizes different terms. In this article, such authorization is indicated by the introductory phrase, “Unless otherwise specified in an unexpired Franchise Agreement…”
(d) Application to Franchise Agreements Adopted Prior to this article. To the extent that this article can be implemented consistently with an unexpired Franchise Agreement adopted prior to this article, the terms of this article shall prevail. To the extent that this article conflicts with and cannot be implemented consistently with an unexpired
Franchise Agreement adopted prior to this article, the terms of the unexpired Franchise Agreement shall prevail.
Unless otherwise provided in an unexpired Franchise Agreement, a Franchise granted hereunder shall be in effect for an initial term of five (5) years and may be renewed subject to Sections 12-636:637.
Unless otherwise provided in an unexpired Franchise Agreement, a Franchise granted hereunder shall be limited to a specific geographic area of the City to be served by the Franchisee and the Public Rights of Way necessary to serve such areas and may include the entire City.
(a) Franchise Agreement and Franchise Fee. A Franchise Agreement granted hereunder shall require the Franchisee to pay a Franchise Fee in an amount determined by resolution of the City Council.
(b) Right of Way Use Fee Imposed. Every Communications Provider occupying or using the Public Rights of Way to provide Services within the City, whether or not the Provider owns the Facilities used to provide its Services, shall pay a Right of Way Use Fee, which shall be based upon all the Communications Services it provides within the City. Such Right of Way Use Fee shall be in an amount determined by resolution of the City Council.
(c) Credit and Waiver.
(1) The City shall provide a Right of Way Use Fee Credit to any Communications Providers who, pursuant to a Franchise Agreement, pays to the City Franchise Fees due and owing. The amount of the Right of Way Use Fee Credit shall be equal to the Franchise Fees paid to the City during that Right of Way Use Fee billing period.
(2) The City Administrator or designee may, at his or her sole discretion and through the adoption of a written rules, grant a full or partial Right of Way Use Fee annual waiver for a Communications Provider who can demonstrate that it has received, earned, or derived (or expects to receive, earn or derive) little or no gross revenues from its use or occupation of the Right of Way during that year. Such written rule shall establish the maximum threshold gross revenue amounts necessary for such waiver to apply.
(d) If the Communications Provider’s sole use of the Public Right of Way is to place wireless Facilities above the ground on existing poles or similar structures in the Public Right of Way and the operator does not install or use lines, wires or cables, such Communications Provider is not required to pay a Right of Way Use Fee or a Franchise Fee under this Section, as long as it complies with all other applicable requirements of this article and all other applicable City codes, regulations and rules. Nothing in this Subsection limits the City’s authority to charge reasonable rental or pole attachment rates for the private use of City property.
(e) Unless otherwise specified in an unexpired Franchise Agreement, the Franchise Fees required by this Section shall be paid within thirty (30) Days after the end of each calendar quarter. Each payment shall be accompanied by an accounting of gross revenues and a calculation of the amount payable. Unless otherwise specified in an unexpired Franchise Agreement, the Franchisee shall pay interest at the rate of nine percent (9%) per year for any payment made after the due date.
(f) The Franchise Fee or Right of Way Use Fee required in this Section remain subject to any applicable limitations imposed by federal or State statutes.
(a) A new registration shall be required of any Franchisee who desires to extend or locate its Facilities within Public Rights of Way if such Facilities are not previously included in a Franchise Agreement with the City.
(b) A new registration shall be required of any Franchisee who desires to provide an additional Communication Service which was not previously included in a Franchise Agreement with the City.
Unless otherwise provided in an unexpired Franchise Agreement and unless prohibited under State or federal law, a Franchise, if renewed, shall be renewed in the following manner. Franchisees who desire to renew an unexpired Franchise under this article shall, not less than one hundred eighty (180) Days before expiration of the current Franchise Agreement, file a request for renewal with the City, which shall include the following information:
(a) The information required pursuant to Section 12-629.
(b) Any additional information required pursuant to the existing Franchise Agreement between the City and the Franchisee.
(c) Any desired amendments to the existing Franchise Agreement, including the desired renewal term, provided that such amendments do not violate or conflict with this article.
Within ninety (90) Days after receiving a complete renewal request under Section 12-636, the City shall issue a written determination granting or denying the renewal request in whole or in part. Such renewal shall be for a renewal term or terms to be mutually decided on by the parties. If the renewal request is denied, the written determination shall provide the reasons for non-renewal. The City shall evaluate the renewal based upon the capacity of the Rights of Way to accommodate the Franchisee’s Facilities; the Franchisee’s legal, technical and financial ability to comply with the provisions of this article; and Franchisee’s compliance with any applicable federal, State and local laws, contractual obligations, rules, or regulations.
The City shall not renew a Franchise Agreement unless the Franchisee has cured any violations or defaults in the Franchisee’s performance of the Franchise Agreement, this article, or has provided the City with a City-approved plan detailing the corrective action to be taken.
A Franchise granted under this article may not be directly or indirectly transferred, assigned or disposed of by sale, lease, merger, consolidation or by other act of the Franchisee, by operation of law or otherwise, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed. City consent conditions shall include, but shall not be limited to:
(a) The Franchisee and the proposed assignee or transferee of the Franchise shall agree in writing to assume and abide by all of the provisions of the Franchise Agreement.
(b) No transfer shall be approved unless the City determines the assignee or transferee has the legal, technical and financial ability to comply with the provisions of this article and applicable Federal, State and local laws, rules, regulations.
(c) The Franchisee shall reimburse the City for all direct and indirect fees, costs, and expenses reasonably incurred by the City in considering a request to transfer or assign a Franchise, unless City is expressly prohibited from requesting such reimbursement by state or federal statutes.
(d) Any transfer or assignment of a Franchise, system or integral part of a system without prior City approval or without a valid Franchise Agreement shall be void and is cause for revocation of the Franchise.
A Franchise Agreement to use or occupy Public Rights of Way may be terminated by the City for the following reasons:
(a) Construction or operation in the City or in the Public Rights of Way without a Construction permit.
(b) Construction or operation at an unauthorized location or in violation of any required City approvals or permits.
(c) Failure to comply with Section 12-639 herein with respect to sale, transfer or assignment of a system or Franchise.
(d) Misrepresentation by or on behalf of a Franchisee to the City in any Registration request or Franchise Application or Franchise Renewal Request.
(e) Unauthorized abandonment of Facilities in the Public Rights of Way.
(f) Failure to relocate or remove Facilities as required in this article.
(g) Failure to pay taxes, compensation, fees or costs when and as due the City under this article or under an applicable Franchise Agreement.
(h) Insolvency or bankruptcy of the Franchisee.
(i) Violation of material provisions of this article.
(j) Violation of the material terms of a Franchise Agreement.
In the event that the City believes that grounds exist for termination of a Franchise Agreement, the City shall give the Franchisee written notice of the alleged violation and shall provide a short and concise statement of the nature and general facts of the violation. City shall provide the Franchisee a reasonable period of time, not exceeding thirty (30) days, to furnish evidence that:
(a) Corrective action has been or is being expeditiously pursued to remedy the violation;
(b) Rebuts the alleged violation; and/or
(c) Explains why it would be in the public interest to impose a penalty or sanction less than termination.
In the event that a Franchisee fails to provide evidence reasonably satisfactory to the City as provided in Section 12-641, the City Administrator shall refer the alleged violation to the City Council. The City Council shall provide the Franchisee with notice and a reasonable opportunity to be heard concerning the matter.
If persuaded that the Franchisee has violated a material provision of this article or of a Franchise Agreement or has committed the violations listed in Section 12-640 above, the City Council may terminate the Franchise or may establish some lesser sanction and cure, including but not limited to the assessment of penalties pursuant to Section 12-658. In doing so, the City Council shall consider the nature, circumstances, extent, and gravity of the violation as reflected by one or more of the following factors, whether:
(a) The violation was egregious.
(b) Substantial harm resulted.
(c) The violation was intentional or repeated.
(d) There is a history of prior violations of the same or other requirements.
(e) There is a history of overall compliance.
(f) The violation was voluntarily disclosed, admitted or cured.
All Franchisees or Communications Providers shall, within thirty (30) Days after City’s written demand therefore, reimburse the City for all reasonable direct and indirect costs and expenses incurred by the City in connection with any modification, amendment, renewal or transfer of the Franchise or any Franchise Agreement, unless the City is expressly prohibited from requesting such reimbursement by federal or state statute.
Unless otherwise provided in an unexpired Franchise Agreement or expressly prohibited by federal or state statute, the City shall not be liable for any damage or injury to or loss of any Facility, property, or Person as a result of or in connection with any City public works, public improvements, Construction, excavation, grading, filling, or work of any kind in the Public Rights of Way by or on behalf of the City, or for any consequential losses resulting directly or indirectly there from unless such damage or injury is directly caused by the City’s negligent, intentional or malicious acts. City liability hereunder shall at all times be limited by Oregon’s statutory and constitutional tort claim limits.
(a) Except in emergencies, within sixty (60) Days of the City’s written request, a Communications Provider shall provide the City with the following:
(1) Information sufficient to demonstrate that Communications Provider has complied with all requirements of this article and any applicable Franchise Agreement, including but not limited to the Franchise Fee or Right of Way Use Fee payments required by Section 12-634.
(2) Unless otherwise provided in an unexpired Franchise Agreement, all books, records, maps, and other documents, maintained by the Communications Provider with respect to its Facilities within the Public Rights of Way.
(b) If the City’s audit or review of the Communications Provider’s books, records and other documents or information demonstrates that the Communications Provider has underpaid the applicable Franchise Fee or the Right of Way Use Fee by three percent (3%) or more in any one fiscal year, the Communications Provider shall correct the underpayment and pay any interest or penalties owed. Unless otherwise provided in an unexpired Franchise Agreement, the Provider shall also reimburse the City for the cost of the audit or review. Any underpayment, including any interest or audit cost reimbursement, shall be paid within thirty (30) Days of the City’s notice to Communications Provider of such underpayment, unless other payment timelines are otherwise provided in an unexpired Franchise Agreement.
Unless otherwise provided in an unexpired Franchise Agreement, if the City contracts for the use of a Communications Provider’s Facilities, services, installation, or maintenance, the Communications Provider shall offer the City its’ most favorable current rate charged to similar Kansas users for similar services. With the City’s written permission, the Communications Provider may deduct the agreed-upon applicable City charges for such City use of the Provider’s Facilities or services any Franchise Fees or Right of Way Use Fees due and owing. The terms and conditions of the City’s use of such services or facilities shall be specified in a written Franchise Agreement or other agreement between the City and the Communications Provider.
If any right is granted by lease, Franchise Agreement, or other manner, to use and occupy City Property (not Right of Way) for the installation of Facilities or other infrastructure, the compensation to be paid for such right and use shall be fixed by the City through a separate agreement with the Communications Provider.
Cable Service Providers shall be subject to this article to the extent not inconsistent with the Cable Act. The City and the Cable Provider shall enter into a Cable Franchise Agreement pursuant to Section 12-628 of this article and such Franchise Agreement shall be subject to all applicable provisions of State and federal law, including the Cable Act.
A Communications Provider may, without prior City approval, offer or provide capacity or bandwidth to its customers by lease, use agreements or otherwise, provided that the Communications Provider shall notify the City of the following: that such lease or use agreement has been granted and the type or nature of the use or lease granted.
Unless otherwise provided in an unexpired Franchise Agreement, each Communications Provider shall, as a condition of the grant, secure and maintain liability insurance policies in amounts and types satisfactory to the City which insure both the Communications Provider and the City and its elected and appointed officers, officials, agents and employees as additional insured. Unless otherwise provided in an unexpired Franchise Agreement, the liability insurance policies required by this Section shall be maintained by the Communications Provider throughout the term of the Franchise Agreement, and any such other period of time during which the Communications Provider is operating or has Facilities within the Public Rights of Way. Unless otherwise provided in an unexpired Franchise Agreement, each Communications Provider shall maintain continuous uninterrupted coverage and shall provide such policies upon City’s request. As an alternative to the insurance requirements contained herein, a Communications Provider may provide evidence of self-insurance, subject to written acceptance by the City.
Each Franchise Agreement shall include, unless prohibited by State or federal statutes, the Franchisee’s express promise to defend, 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, relating to, resulting from or alleged to arise out of, relate to or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the Franchisee or its affiliates, officers, employees, agents, contractors or subcontractors in the Construction, operation, maintenance, repair or removal of its Facilities or related to the Communication Provider’s provision of Services over the Facilities, whether or not such acts or omissions are authorized, allowed or prohibited by this article or by a Franchise Agreement.
Unless otherwise provided in an unexpired Franchise Agreement, before a Franchise granted pursuant to this article is effective, and as necessary thereafter, the Communications Provider shall provide a performance bond, in form and substance acceptable to the City, as security for the full and complete performance of a Franchise Agreement granted under this article, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the Franchisee to comply with the City Code, ordinances, rules, regulations or permits. This obligation is in addition to the performance surety required by Section 12-622 for Construction of Facilities.
Any Franchise Agreement granted under this article is subject to the provisions of the constitutions and laws of the United States and the State of Kansas and the Ordinances and Charter of the City of Marion.
No Franchise Agreement shall be granted hereunder except by a writing duly executed by the Franchisee and the City.
No Franchise Agreement granted under this article shall confer any exclusive right, privilege, license or Franchise to occupy or use the Public Rights of Way for delivery of Communications Service or any other purposes.
If any article, section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this article is for any reason held to be invalid or unenforceable by a court of competent jurisdiction, or superseded by State or federal legislation, rules, regulations or decision, the remainder of the Chapter shall not be affected thereby but shall be deemed as a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of the Chapter, and each remaining section, subsection, sentence, clause, phrase, provision, condition, covenant and portion of this article shall be valid and enforceable to the fullest extent permitted by law. In the event that federal or State laws, rules or regulations preempt a provision or limit the enforceability of a provision of this article, then the provision shall be read to be preempted only to the extent required by law. In the event such federal or State law, rule, or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding, without the requirement of further action on the part of the City.
Any Person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this article or a valid Franchise Agreement shall, pursuant to Section 1-117 of the City Code. A separate and distinct offense shall be deemed committed each day on which a violation occurs.
Nothing in this article shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this article.
The captions to sections throughout this article are intended solely to facilitate reading and reference to the sections and provisions contained herein. Such captions shall not affect the meaning or interpretation of this article.
Any Communications Provider under this article shall comply with all federal and State laws and regulations, as well as all ordinances, resolutions, rules and regulations of the City.