Columbia Authorization to use rights-of-way required ordinance (§ 24-167)

(a) Authorization required. Except when otherwise authorized by applicable law, no ROW-user may construct, maintain, own, control or use facilities in the rights-of-way without authorization of the city as provided herein, and the director shall not issue a ROW work permit to any ROW-user that has not obtained such authorization from the city. Authorization to use the rights-of-way shall be approved on a non-discriminatory basis, provided that the applicant is in compliance with all applicable requirements. Such authorization shall be deemed to incorporate the terms of this article and other applicable laws of the city, except as may be expressly stated in such authorization. Reseller service providers shall not be

required to obtain a franchise or agreement, but shall be required to register with the city on forms provided by the city prior to providing service. Authorization for use of the right-of-way by a ROW-user may be provided by the city by the following means:

(1) Franchise. A franchise shall be required from the city in conformance with all applicable franchise procedures for any ROW-user seeking to use the rights-of-way for purposes of providing or distribution of electricity, gas, water, steam, lighting or sewer public utility service in the city, except where otherwise provided by law. Such franchise may be granted only after satisfaction of all applicable procedural or substantive requirements established by city code or other law.

(2) ROW agreement. A ROW agreement, including but not limited to territorial agreements, authorizing general use of all right-of-way within the city shall be required for all ROW-users not set forth in subsection (1), irrespective of any state licensing, franchise or certificate that may also be held by the ROW-user, except as otherwise required herein or by law. Such agreements shall conform to all applicable law, but shall not be subject to procedures applicable to franchises and the city may, if appropriate, approve form agreements that may be executed by the director after approval by the city council.

(3) Registration. Any ROW-user expressly exempt by law from being required to execute a franchise or ROW agreement shall register with the city on forms provided by the city, which shall require the ROW-user to specifically identify the law under which the ROW-user claims such exemption. Registrations under this article shall be valid for no more than five (5) years.

(4) Use permit. Use permits or use agreements authorizing use of specific portions of the public rightsof-way that were executed prior to enactment of this article may constitute authorization under this section, but such authorization shall be limited to the specific portion of rights-of-way set forth in the permit or agreement.

(b) Nonexclusive use of right-of-way. The authorization granted by the city under this article shall be for nonexclusive use of the rights-of-way. The city specifically reserves the right to grant, at any time, such additional authorizations or other rights to use the rights-of-way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable law. The granting of an authorization to use the rights-of-way shall not be deemed to create any property interest of any kind in favor of the ROW-user. Any use of the rights-of-way by a ROW-user shall be deemed subordinate to the primary public use by the city.

(c) Lease required for public lands. Unless otherwise provided, use or installation of any facilities in, on or over public lands of the city not constituting rights-of-way 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 and conditions as the city may require.

(d) Transferability. Except as provided in this article or as otherwise required by law, no authorization or ROW work permit may be transferred without the written application to and consent of the city based on the requirements and policies of this article and only after satisfaction of all applicable procedural or

substantive requirements established by charter or other law. The city shall not unreasonably withhold its consent to transfer as provided herein, but any costs incurred shall be paid by the applicant.

(e) Application for authorization required.

(1) Application. An application for an authorization shall be presented to the director in writing on such forms provided by the city and shall include all such information as is required by this section. The ROW-user shall be responsible for accurately maintaining the information in the application during the term of any authorization and shall be responsible for all costs incurred by the city due to the failure to provide or maintain as accurate any application information required herein.

(2) Application fee. An application fee for such authorization shall be submitted to the city in the amount of five hundred dollars ($500.00), or as otherwise established by the director, to recover any actual costs anticipated and incurred by the city in reviewing, documenting, or negotiating such agreement or franchise, including reasonable legal fees and costs to review compliance of the applicant and any initial proposed facilities and uses, provided that no costs, if any, shall be included if such inclusion is prohibited by law as to that applicant. If the actual costs are thereafter determined to be less than the application fee, such amount shall be returned to the applicant after written request therefrom; if the actual costs reasonably exceed the application fee, applicant shall, after written notice from the city, pay such additional amount prior to issuance by the city of any final approval. Nothing herein shall be construed to prohibit the city from also charging reasonable compensation for use of the public rights-of-way where such a fee is not contrary to applicable law.

(3) Approval Process.

a. Approval of franchise or ROW agreement. After submission by the ROW-user of a duly executed and completed application and application fee, and executed franchise or ROW agreement as may be provided by the director, or as modified by the director in review of the specific circumstances of the application, all in conformity with the requirements of this article and all applicable law, the director shall submit such franchise or agreement to the city council for approval. Upon determining compliance with this article, the city council shall authorize execution of the franchise or agreement (or a modified agreement otherwise acceptable to the city consistent with the purposes of this article), and such executed franchise or agreement shall constitute consent to use the public rights-of-way; provided that nothing herein shall preclude the rejection or modification of any executed franchise or agreement submitted to the city to the extent such applicable law does not prohibit such rejection or modification, including where necessary to reasonably and in a uniform or nondiscriminatory manner reflect the distinct engineering, construction, operation, maintenance, public works or safety requirements applicable to the applicant.

b. Approval of registration application. After submission by the ROW-user of a duly executed and completed registration application form and application fee, the director shall review the registration application form for eligibility and completeness. If the registration application form

is complete and the ROW-user is eligible to utilize a registration under this section, the director shall approve such registration.

(f) No cause of action. A ROW-user shall have no damages remedy or monetary recourse whatsoever against the city for any loss, cost, expense, or damage arising from any of the provisions or requirements of any authorization, or from the use of the rights-of-way. Nothing herein shall preclude injunctive or declaratory judgment relief where such relief is otherwise entitled under law and the requirements therefor are otherwise satisfied; provided, however, that the validity of an executed franchise or agreement shall not be subject to challenge.