Title 13 - Streets and Sidewalks

13.55 MASTER FRANCHISE CODE

Contents:

 

13.55.101 Title.

This Chapter shall be referred to and cited as the “Master Franchise and Right of Way License Code.” 

(History: Ord. No. TF-3276 §1, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.102 Definitions. 

For the purposes of this Chapter, the following words and phrases shall have the meanings given herein:

(History: Ord. No. TF-3276 §2, 2019; Ord. TF-3155 §1, 2017)

  1. A.

     Agreement means a Franchise or a Master Right-of-way License Agreement.

Effective on: 1/1/1901

  1. B.
    City means the City of Overland Park, Kansas. Any reference to “within the City” shall mean within the corporate city limits of the City of Overland Park, Kansas.

Effective on: 1/1/1901

  1. C.
    Entity means any individual person, governmental entity, business, corporation, partnership, firm, limited liability corporation, limited liability partnership, unincorporated association, joint venture or trust and shall include all forms of business enterprise not specifically listed herein.

Effective on: 1/1/1901

  1. D.
    Facilities means lines, pipes, mains, laterals, wires, cables, conduit, ducts, poles, towers, cabinets, vaults, pedestals, boxes, appliances, antennas, transmitters, gates, meters, wireless communications facilities, Gas Distribution System and Gas Distribution Facilities, together with all necessary appurtenances or other equipment thereto, or any part thereof, for the purpose of providing or otherwise facilitating any Service; provided, small cell facilities shall have the same meaning prescribed by K.S.A. 66-2019(b)(4) (as may be amended).

Effective on: 1/1/1901

  1. E.
    Franchise means the grant, right, privilege and franchise by the City to provide, distribute, transport or sell a Service other than wireless service within the City and/or to install, construct, maintain, extend or operate Facilities along, across, upon, under or within the Right-of-way. The grant, right, privilege and franchise shall be in accordance with the provisions of K.S.A. 12-2001 et seq. (as may be amended) or any other applicable state law, the City’s Home Rule power, and/or any applicable City codes.

Effective on: 1/1/1901

  1. F.
    Franchise Fee means consideration paid in the form of a charge upon a Franchisee as prescribed in the ordinance granting the Franchise.  Any such Franchisee Fee shall be subject to any applicable provisions of federal or state law.

Effective on: 1/1/1901

  1. G.
    Gas Consumer means, without limitation, any Entity that receives natural gas or Other Energy within the City through a Gas Distribution System or Gas Distribution Facilities.

Effective on: 1/1/1901

  1. H.
    Gas Distribution System or Gas Distribution Facilities means a pipeline or system of pipelines, including without limitation, mains, pipes, boxes, reducing and regulating stations, laterals, conduits and services extensions, together with all necessary appurtenances thereto, or any part thereof, for the purpose of distribution or supplying natural gas or Other Energy for light, heat, power and all other purposes.

Effective on: 1/1/1901

  1. I.

    Grantee means either:

    1.  An Entity that has a Franchise granted by the City pursuant to this Chapter, K.S.A. 12-2001 et seq. (as may be amended) any other applicable state law, and/or the City’s Home Rule power (Sometimes referred to as a “Franchisee”); or

    2.  An Entity that has a Master Right-of-way License Agreement granted by the City pursuant to this Chapter, K.S.A. 12-2001 et seq. (as may be amended), any other applicable state law, and/or the City’s Home Rule power. (Sometimes referred to as a “Licensee.”)

     

Effective on: 1/1/1901

  1. J.
    Master Right-of-way License Agreement means the grant, right, and privilege to install, construct, maintain, extend or operate Facilities along, across, upon, under or within the Right-of-way for the purpose of providing wireless service. The grant, right, and privilege shall be in accordance with the provisions of K.S.A. 12-2001 et seq. (as may be amended) or any other applicable state law, the City’s Home Rule power, and/or any applicable City codes. A Master Right-of-way License Agreement may incorporate the provisions of a Small Cell Facility Deployment Agreement.

Effective on: 1/1/1901

  1. K.
    MCF means a measurement of natural gas equal to one thousand (1,000) cubic feet.  It is assumed for purposes of this Chapter that one MCF equals one million (1,000,000) British Thermal Units (BTUs).

Effective on: 1/1/1901

  1. L.
    New Monopole Fee means a type of Right-of-way Access Fee assessed for the installation and continued maintenance and operation of a wireless monopole structure in the Right-of-way.

Effective on: 1/1/1901

  1. M.
    Other Energy means any energy provided in a gaseous, liquid, or slurry mixture form through pipelines for light, heat, power, and all other purposes as an alternative or replacement for natural gas, but specifically, it shall not include electrical energy.

Effective on: 1/1/1901

  1. N.
    Reseller means a provider of Service other than wireless service within the City whereby the provider purchases and resells the Service of a duly authorized Grantee, but only where the duly authorized Grantee is already paying fees for the resold Service under its Agreement with the City. (For example, the resale of local exchange service as contemplated by K.S.A. 12-2001(n).)

Effective on: 1/1/1901

  1. O.
    Right-of-way means the area on, below or above present and future streets, alleys, bridges, parkways, or highways in which the City has a dedicated or acquired right-of-way interest in the real property. The “Right-of-way” shall not include property owned by the City outside of the Right-of-way.

Effective on: 1/1/1901

  1. P.

    Right-of-way Access Fee means consideration paid in the form of a charge upon a Grantee for the grant, right, and privilege by the City to install, construct, maintain, extend or operate a Facility along, across, upon, under or within the Right-of-way for the purpose of providing wireless service. (See K.S.A. 12-2001(t) as may be amended.)

Effective on: 1/1/1901

  1. Q.
    Service means any utility, commodity or similar service provided, distributed, transported or sold to an Entity by means of a delivery or distribution system that is comprised of Facilities within the City, including without limitation, telecommunication, cable, broadband, Internet, Open Video Systems, wireless services, alarm systems, steam, electric, water, telegraph, data transmission, natural gas, Other Energy, or any other similar service; provided, wireless service shall have the same meaning prescribed by K.S.A. 66-2019(b)(19) (as may be amended). 

Effective on: 1/1/1901

  1. R.
    Small Cell Facility Deployment Agreement shall have the same meaning as provided in K.S.A. 12-2001 et seq. (as may be amended).

Effective on: 1/1/1901

13.55.103 Agreement Requirements.

  1. A.
    No Entity shall provide, distribute, transport or sell a Service within the City or shall install, construct, maintain, extend or operate Facilities along, across, upon, under or within the Right-of-way without an Agreement authorizing the same, unless applicable federal or state law prohibits City enforcement of such requirement. This requirement includes:
    1. 1.
      Entities with Facilities within the City in order to provide, distribute, transport or sell Service within the City;
    2. 2.
      Entities with Facilities within the City’s Right-of-way in order to provide, distribute, transport or sell Service outside, but not within the City; and
    3. 3.
      Entities without their own Facilities within the City that lease or otherwise use the Facilities of other Entities in order to provide, distribute, transport or sell Service within the City.

      This requirement includes Entities only possessing or having an interest in Facilities in the Right-of-way that are used by, may be used by or are intended for use by another Entity, in whole or in part, to provide a Service for or without a fee, regardless of whether the actual facility owner provides any Services.
      Provided, however, this requirement shall not include a Reseller, or include a governmental entity that has entered into an agreement with the City pursuant to K.S.A. 12-2901 et seq. regarding the use and occupancy of the Right-of-way.
       
  2. B.
    A Franchisee shall pay a Franchise Fee consistent with and pursuant to the requirements of K.S.A. 12-2001 et seq. or as otherwise allowed by law under the City's Home Rule authority.
  3. C.
    A Licensee accessing the Right-of-way shall pay a Right-of-way Access Fee for each of the Licensee's wireless Facilities that requires use of the Right-of-way, including those located in: 
    1. 1.
      An existing structure in the Right-of-way (e.g. an existing utility pole, or a city streetlight); and
    2. 2.
      A new non-city owned structure in the Right-of-way (e.g. a new small cell monopole). Such Licensee that installs a new monopole structure in the Right-of-way shall also pay a New Monopole Fee as part of their Right-of-way Access Fee. 
      ​​​​​​​The amount of the Right-of-way Access Fee and New Monopole Fee shall be the amounts established by resolution.  
  4. D.
    A Licensee locating its Facilities on the Facilities owned by the City shall pay to the City an attachment fee in an amount established by resolution. 

    ​​​​​​​(History: Ord. No. TF-3276 §3, 2019; Ord. TF-3155 §1, 2017)

 

Effective on: 1/1/1901

13.55.104 Gas Distribution Systems and Gas Distribution Facilities. 

It shall be unlawful for any Entity to install, construct, maintain, extend or operate or a Gas Distribution System or Gas Distribution Facilities or to provide, distribute, transport or sell natural gas or Other Energy within the City without first obtaining a Franchise authorizing the same and requiring a Franchise Fee. This franchise requirement applies to any provision, distribution, transportation or sale to a Gas Consumer within the City whether or not the portion of the Entity’s Gas Distribution System is in the Right-of-way. Provided, in the event the Gas Distribution System or Gas Distribution Facilities of a Franchisee are used by an Entity without its own Gas Distribution System or Gas Distribution Facilities within the City for the transportation or sale of said Entity’s natural gas or Other Energy to a Gas Consumer, said Entity shall be exempt from the requirement of obtaining a Franchise if it reports, calculates and pays (either directly or through the Franchisee) a sum to be submitted to the City for such Services that is equivalent to the calculation of the Franchisee’s Franchise Fee. In such event, if gross receipts are not or cannot be reported, a sufficient volumetric rate multiplied by the number of MCF of the transported natural gas or Other Energy may be used in making such calculation. 

(History: Ord. TF-3155 §1, 2017)

Effective on: 1/17/2017

13.55.105 Preservation of Police Power Authority and Applicability of Regulations. 

Any rights granted pursuant to this Chapter or pursuant to any Agreement are subject to the authority of the City to adopt and enforce ordinances and regulations necessary to the health safety and welfare of the public. All Entities subject to this Chapter shall also be subject to and comply with all applicable federal and state laws, statutes and regulations, and all applicable rules, regulations, policies and ordinances enacted by the City, including without limitation, the City’s Ordinance for Managing the Use and Occupancy of the Public Right-of-Way (codified at Overland Park Municipal Code Chapter 13.12 – Managing The Use and Occupancy of the Public Right-of-Way, and amendments thereto, and including the administrative regulations incorporated therein) and the City’s Unified Development Ordinance.  Provided, nothing in this Chapter shall be deemed to waive a right, if any, that an Entity might have to seek judicial or regulatory review as provided by law. 

(History: Ord. No. TF-3276 §4, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.106 Nature of Rights Granted by Any Agreement.

Agreements shall not convey title, equitable or legal, in the Right-of-way or any other public property, but shall give only the right to occupy the Right-of-way for the purposes and period stated within the Agreement. No Agreement shall grant the right to use Facilities owned or controlled by the City or a third-party, without the specific written consent of such party, nor shall an Agreement excuse a Grantee from the requirement to obtain an access, attachment, or Small Cell Facility Deployment agreements before locating its Facilities on the Facilities owned or controlled by the City or a third-party. Any Agreement granted by the City shall be nonexclusive.

(History: Ord. No. TF-3276 §5, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.107 Indemnification of the City. 

Any Entity installing, constructing, maintaining, extending or operating Facilities within the City or otherwise providing, distributing, transporting or selling a Service within the City shall hold the City harmless from any and all damages or claims arising or accruing from: the exercise of any right or privilege granted under this Chapter or an Agreement; the installation, construction, maintenance, extension, operation of its Facilities within the City; and the negligence or intentional acts or omissions of its employees, agents, or servants (including contractors and subcontractors) in the exercise of said installation, construction, maintenance, extension, operation, provision, distribution, transportation or sale. Failure of said Entity to obtain or maintain an Agreement shall in no manner waive this requirement and obligation.

(History: Ord. No. TF-3276 §6, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.108 Insurance and Bond Requirement. 

  1. A.
    Insurance. Each Grantee shall file with the City evidence of liability insurance with an insurance company licensed to do business in Kansas. The amount will be not less than $1,000,000 per occurrence and $2,000,000 in aggregate. The insurance will protect the City from and against all claims by any Entity whatsoever for loss or damage from personal injury, bodily injury, death, or property damage to the extent caused or alleged to have been caused by the negligent or wrongful acts or omissions of the Grantee. The Grantee shall also have coverage for automobile liability in an amount of not less than $1,000,000 per occurrence and $2,000,000 in aggregate. The City shall be an additional insured on all policies of Grantee, to the extent permitted by law, unless waived in writing by the City. If the Grantee 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, and shall agree to indemnify and hold the City harmless for any losses associated with Grantee’s activities in the Right-of-way. All contractors actually performing work for any Grantee shall be subject to the same insurance requirements set forth herein. A copy of the liability insurance certificate or proof of self insurance must be on file with the City Clerk.
  2. B.
    Bond. To the extent any Grantee installs, constructs, maintains, extends or operates any Facilities in the Right-of-way, it shall maintain a performance and maintenance bond as set forth in the City’s Ordinance for Managing the Use and Occupancy of the Public Right-of-Way (codified at Overland Park Municipal Code Chapter 13.12 – Managing The Use and Occupancy of the Public Right-of-Way, and amendments thereto) or as set forth in the Franchise Ordinance of Franchisee, or the Master Right-of-way License Agreement of the Licensee. To the extent any Grantee installs, constructs, maintains, extends or operates any Facilities anywhere else within the City, the City may require a bond in the Agreement when reasonably deemed necessary. A copy of any required bond must be on file with the City Clerk.

(History: Ord. No. TF-3276 §7, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.109 Agreement Applications and Renewals.

  1. A.
    Applications. All applications for an Agreement shall be on forms provided or approved by the City. Any application fee shall be paid prior to processing by the City, unless otherwise agreed to by the City. Upon receipt of a completed application and any applicable fee, the designated city official shall prepare a report and make a recommendation respecting such application to the Governing Body. Each Service subject to an Agreement shall require a separate application.
  2. B.
    Application Fee. An application fee shall be paid at the time of the application in the amount established by the City; provided, the City may agree to defer submission of part or all of the application fee until all costs have been determined. As part of said application fee the City may include reimbursement for all reasonable costs incurred by the City in drafting, negotiating, adopting, and publishing the Agreement. Provided, nothing herein shall prevent the City from having any publication or other reasonable costs billed directly to the applicant. Said fee and costs shall not be considered or credited against the collection of applicable Franchise Fees, attachment fees, New Monopole Fees, or Right-of-way Access Fees.
  3. C.
    Agreement Renewal. Agreement renewals shall be in accordance with applicable law. The City and any Grantee, by mutual consent or as otherwise provided in such Grantee’s Agreement, may enter into renewal negotiations. The City may require such Grantee to update any application information and, subject to Kansas Statute or any provisions in such Grantee’s Agreement, submit an application fee.

(History: Ord. No. TF-3276 §8, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.110 Applicability. 

The provisions of this Chapter shall apply to the full extent of the terms herein, and said provisions shall be deemed incorporated into each Agreement.

(History: Ord. No. TF-3276 §9, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.111 Federal and State Law. 

The requirements set forth in this Chapter shall be subject to the provisions of K.S.A. 12-2001 et seq. (as may be amended), K.S.A. 66-2019 (as may be amended), and any other applicable federal or State law.

(History: Ord. No. TF-3276 §10, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.112 Failure to Enforce. 

The failure of the City to insist upon the strict adherence to the requirements of this Chapter or of any Agreement shall not be construed as a waiver or relinquishment for the future of the rights of the City to enforce this Chapter or any Agreement or any term or provision thereof.

(History: Ord. No. TF-3276 §11, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.113 Violations. 

It shall be unlawful for any Entity to provide, distribute, transport or sell a Service within the City or install, construct, maintain, extend or operate Facilities along, across, upon, under or within the Right-of-way without first complying with this Chapter. Any Entity violating this Chapter shall be subject to a fine of up to $500 per day. The payment of such fine notwithstanding, all such violators shall be subject to all other applicable provisions of this Chapter to fullest extent allowed by law, including, but not limited to, the payment of a Franchise Fee, attachment fee, New Monopole Fee, Right-of-way Access Fee, or the equivalent thereof, and indemnification of the City.

(History: Ord. No. TF-3276 §12, 2019; Ord. TF-3155 §1, 2017)

Effective on: 1/1/1901

13.55.114 Severability. 

The provision of this Chapter shall be liberally construed to effectively carry out its purposes, which are hereby found and declared to be in furtherance of the public health, safety, welfare, and convenience. If any clause, sentence or section of this Chapter shall be held to be invalid or unenforceable, it shall not affect the remaining provisions of this Chapter.

(History: Ord. TF-3155 §1, 2017)

Effective on: 1/17/2017