1. Franchise or License Required.
A. Except as otherwise provided in this chapter, no person shall occupy or use public right-of-way on a citywide basis for the purpose of providing utility services to private customers without first obtaining a franchise from the City as provided and required by I.C. §364.2, unless such utility service is provided by a governmental entity having jurisdiction and authority to provide such service within the City.
B. Except as otherwise provided in this chapter, no person shall occupy or use any portion of the right-of-way for the purpose of operating or conducting a private business, on other than a temporary basis as provided in an obstruction permit or excavation permit, without first obtaining a license from the City.
C. The City shall not grant, issue, or enter into any franchise or license that grants or allows exclusive use or occupancy of the right-of-way. Any person seeking a franchise or license for use of City right-of-way shall make application for a franchise or license with the City Engineer.
D. An application for a franchise or license for occupancy or use of a right-of-way shall be filed with the City Engineer on a form provided by the City and shall include all registration information required to be submitted.
2. Grant of Franchise; Persons Eligible.
A. Under this section, franchises will be granted in accordance with the procedures provided therefor in I.C. Ch. 364. The terms and conditions of a franchise shall be subject to negotiation between the franchise applicant and the City and shall be incorporated into the form of an ordinance. A franchise shall not be considered to have been granted by the City unless and until the form and provisions of the franchise ordinance have been approved and adopted by the City Council, the grant of the franchise has been approved by the City electorate at an election, and the franchise has been duly recorded, all as required by I.C. Ch. 364. The proposal to grant a franchise shall not be submitted at an election until the City Council has duly passed and approved the ordinance containing the proposed franchise.
B. A franchise will be granted only when the following conditions are met:
(1) The franchise applicant provides or proposes to provide a utility service to all of the City residents or to all of the residents within a given area of the City; or
(2) The franchise applicant provides or proposes to provide utility service within the City or within a given part thereof and is by law required to provide universal service within its service area; and
(3) The franchise applicant proposes that it be authorized to utilize any and all street and alley rights-of-way within the City or within a given part thereof for the purpose of providing such service; or
(4) The City Council determines that the franchise applicant will ultimately require authorization to utilize any and all street and alley rights-of-way within the City or within a given part thereof for the purpose of providing such service; and
(5) The franchise applicant has obtained a certificate of public convenience and necessity from the state utilities board for the provision of that service, if required, and has met all other legal requirements to provide the utility service.
C. Persons providing utility services, except local exchange telephone services, on the effective date of the ordinance from which this subsection derives:
(1) Which are not franchised by the City; and
(2) Which possess a certificate of public convenience and necessity from the Iowa utilities board for the provision of that service, if required; or
(3) Which provide utility service to all or a substantial proportion of the residents of the City, or to all or a substantial proportion of the residents of a given part of the City; and
(4) Which utilize all or a substantial proportion of the street and/or alley rights-of-way within the City, or within a given part of the City, for the purpose of providing such service;
shall be required to obtain a franchise for the continued provision of that utility service and for the continued use and occupancy of City street rights-of-way for that purpose.
3. Persons Eligible for Issuance of License.
A. The following persons shall not be eligible for the grant of a franchise, but shall instead be eligible for the issuance of a license for the use of the right-of-way at the discretion of the City Engineer:
(1) A person who, on the effective date of the ordinance from which this section derives, provides or proposes to provide utility services to all residents within the City or to all residents within a given part thereof but who intends to utilize for that purpose only certain street or alley rights-of-way constituting only a small portion of the street or alley rights-of-way within the City or within that part of the City; or
(2) A person who the City determines can provide such service by utilizing only certain street or alley rights-of-way constituting only a small portion of the street or alley rights-of- way within the City or within a given part of the City.
(3) The owner of two or more properties which abut a street or alley right-of-way on either side thereof and which properties are zoned for multifamily, commercial, or industrial use, who desires to use such street and/or alley right-of-way to provide a private service connection between two or more buildings or facilities located on such properties.
(4) The owner of two or more properties within the boundaries of the City, which properties are used collectively as a campus for residential, business, and/or educational purposes, who desires to use the streets and/or alleys connecting said properties to provide a private service connection not to exceed a four- block radius or 10,000 equivalent linear feet between two or more buildings or facilities located on such properties.
(5) A person who provides or proposes to provide wholesale services and/or support to its customers or clients who use the person's equipment and facilities within the City right-of-way. Upon request by such person for license, or for license renewal or license amendment increasing the equivalent linear footage of the person's equipment within the right-of-way existing on the effective date of the ordinance from which this section derives by ten percent or greater, the City Engineer shall review the then-anticipated cost of relocation and removal of the person's proposed equipment and restoration of the City right- of-way due to said relocation or removal, and prior to issuing such license, or renewal or amendment, the City Engineer may, in his or her sole discretion, require such person to make payment to the City of an upfront deposit payment or to post a performance and maintenance bond in the amount. Nothing set forth herein relieves such person of its obligation to additionally pay applicable fees, or to remove and/or relocate its equipment following its license term and/or renewal(s) thereof following City Engineer order, or to otherwise comply with all provisions of this code applicable to such person's use of the City right-of- way.
(6) A person who provides or proposes to provide a private service connection that does not cross a street or alley right-of- way between two or more buildings or facilities on either side thereof in accordance with subsection (A)(3) of this section, or that exceeds a four-block radius or 10,000 equivalent linear feet, and who, in the discretion of the City Engineer, fulfills all of the following criteria:
a. Owns a minimum of one property used for non- residential purposes within the boundaries of the City, as determined by the records of the county assessor and/or auditor within which county the property is located, for the duration of the initial license term and renewal(s) thereof; and
b. Provides a broad based public benefit to the City and its residents in the form of economic activity, and/or job creation, and/or the promotion of the health, safety or welfare of the City's residents; and
c. Does or will own the proposed equipment within the right-of-way, and whose proposed use of the right-of- way has a minimal current impact and minimal anticipated future impact on such right-of-way, and of the use thereof by the City or other parties allowed by the City pursuant to this chapter.
B. Appeals of the City Engineer's decisions regarding eligibility for the issuance of a license for the use of the right-of-way may be made pursuant to this Code.
4. Authority to Issue License; Form of License and Term.
A. Licenses required by this section shall be issued by the City Engineer. The City Engineer shall review each application and shall issue each license which he or she determines to be in compliance with the requirements of this section and any other applicable legal requirements. In issuing a license, the City Engineer may require a change in the proposed location of the licensee's equipment where necessary to avoid interference with other equipment placed within the public right-of-way.
B. Licenses issued pursuant to this section shall be in writing, shall be executed by the licensee, and shall not take effect until approved by the City Attorney. The form of licenses to be issued pursuant to this section shall be uniform, but shall be subject to periodic review and modification.
5. Limit on Term of Franchises; Limit on Initial or Renewal Term of Licenses.
A. No franchise for use of the public right-of-way shall be granted for a term in excess of 25 years.
B. No license for use of the public right-of-way issued by the City Engineer shall be issued or renewed for a term in excess of five years.
6. Compensation Required; Franchise and License Fees.
A. All new franchises granted by the City shall allow for the collection of an annual franchise fee.
B. A license fee shall, to the extent allowed by the constitution and laws of the state, be assessed on all new licenses for use or occupancy of the right-of-way upon and after the City Council's approval by resolution of a schedule of license fees for use of City rights-of-way. The schedule of fees for use of City rights-of-way shall reflect the diminution in the functional utility of the right-of-way for use by the City and shall be based upon such factors as the value or rental value of private property abutting the right-of-way to be used and the licensee's avoided cost in using the City right-of-way as opposed to establishing a private right-of-way for the licensed use upon abutting private property. The schedule of fees for use of City rights-of-way shall establish such fees in terms of per-linear-foot charges for the right-of-way used, and assuming a use width of not more than ten feet, with the schedule reflecting the per-foot value of such right-of-way in identified segments of the City.
C. In addition to being required to pay franchise or license fees, franchisees and licensees may, to the extent allowed by I.C. §480A.1 et seq., be required to provide in-kind services as compensation for such use, including but not limited to:
(1) The installation by the franchisee or licensee of City equipment in the trenches excavated by or in the duct banks constructed by the franchisee or licensee; and/or
(2) Access to such trenches or ducts so that the City can install its equipment therein.
Franchisees and licensees who provide such services as utility services, as defined in this chapter, may, to the extent allowed by I.C. §480A.1 et seq., also be required to provide access at no cost to the services provided by the franchisee or licensee at a location to be designated by the City, or the equivalent value of the service to be provided at such location.
D. Franchise and license fees shall be paid at the City Clerk’s office. The acceptance of any such fee payment by the City shall not be construed as an acknowledgment that the amount paid is the correct amount due, nor shall such acceptance of payment be construed as a release of any claim which the City may have for additional sums due and payable.
E. The licensee or lessee shall pay interest at the rate of ten percent per year on any overdue license fee calculated from the due date of the fee.
F. Nothing in this section shall be construed to limit the liability of a franchisee or licensee for all applicable federal, state and local taxes.
G. Nothing in this section shall be construed to prevent the City Council from exercising the right of the City to change the amount of any of the fees required by this section.
7. Application for Issuance of a License. A person desiring to obtain a license as required in this section shall make application for a license for such use and occupancy as provided in this chapter, and shall pay an application fee for initial issuance of the license. The application fee for initial issuance of a license and any future changes thereto shall be effective upon its inclusion in a schedule of fees adopted by the City Council by resolution. The application for initial issuance of a license shall be filed with the City Engineer not less than 60 days prior to the proposed effective date of the license and shall be filed upon a form provided by the City for that purpose. The application shall include, at a minimum, the following information:
A. The name, address and telephone number of the applicant.
B. The name, address and telephone number of a responsible person whom the City may notify or contact at any time or in case of emergency concerning the equipment or utility system.
C. A statement of the purpose for the equipment or system proposed for installation in the public right-of-way, the type of service it will provide, and the intended customers which it will serve.
D. Any additional information which the City Engineer in his or her discretion may require.
8. Issuance and Renewal of Licenses; License Revocation and Cancellation.
A. Prior to the initial issuance of a license for use or occupancy of public right-of-way, the City Engineer shall conduct a review of the licensee's background to determine the licensee's ability to meet the requirements stated in this section. If on the basis of such review the City Engineer determines that it would not be appropriate to issue the license, the City Engineer shall give notice of intent not to issue the license as provided in this section.
B. To obtain renewal of a license, the licensee shall file an application with the City Engineer on the form provided by the City and pay an application fee for renewal of the license. The application fee and any future changes thereto shall be effective upon its inclusion in a schedule of fees adopted by the City Council by resolution. The renewal application shall be filed with the City Engineer not less than 180 days prior to the expiration of the existing license or any renewal term of the license. Upon receipt of the application, the City Engineer shall conduct a review of the licensee and the licensee's prior use of the public right-of-way to determine the licensee's continued compliance with the requirements. If on the basis of such review the City Engineer determines that the licensee and the licensee's prior use of the public right-of-way comply with all requirements stated in this section, the City Engineer may renew the license for an additional term of up to five years. If on the basis of such review the City Engineer determines that the licensee and the licensee's use of public right-of-way do not comply with one or more of the requirements stated in this section, the City Engineer shall give notice of intent not to renew the license as provided in this section. If a licensee holds multiple licenses for use or occupancy of various rights-of-way within the City for the same or similar purpose, the licensee shall be required to renew all such licenses under a single license at such time as the earliest issued license expires.
C. In determining the length of the term of a license, the City Engineer shall take into consideration the likelihood that the City will require the use of the licensed right-of-way for municipal purposes or that such use of the licensed right-of-way will unduly burden the City or the public in its use of the licensed right-of-way during the proposed term of the license. A license shall not be issued or renewed if the City Engineer determines that any of the following conditions exist in the right-of- way proposed for licensing:
(1) There is insufficient space in the right-of-way to accommodate the proposed use, given the other existing uses thereof;
(2) The proposed private utility service connection would interfere with or conflict with existing or planned City equipment or utility equipment located or to be located in the right-of-way;
(3) Such use is incompatible with adjacent public or private uses of that right-of-way;
(4) Such use would involve an unacceptably high frequency of repair or maintenance to the private utility service equipment thereby requiring excessive excavation in or obstruction of the right-of-way; or
(5) The construction or installation of such private utility service equipment would interfere with a public improvement undertaken or to be undertaken by the City or with an economic development project in which the City has an interest or investment.
D. If during the term of any license the City Engineer determines that the license should be revoked due to the licensee's failure to comply with any of the requirements stated in this section, the City Engineer shall give notice of intent to revoke such license.
E. The following shall constitute grounds for refusal to issue or renew a license, or for revocation of a license for use or occupancy of public right-of-way. The licensee's failure to observe or comply with any of the following:
(1) The licensee's use or prior use of public right-of-way has been conducted in full and timely compliance with all laws and regulations applicable thereto, and the licensee has complied fully and in a timely manner with the requirements of any previously issued license, and with the orders or instructions of city officials issued pursuant to this chapter; or
(2) The licensee is current in the payment of license fees, if applicable, and the licensee has made such payments fully and when due.
(3) The licensee has made a misleading statement or a material misrepresentation in connection with an application for initial issuance or renewal of a license, in connection with its use of public right-of-way.
F. The City Engineer shall give notice of intent to cancel such license as provided in this section if during the term of any license the City Engineer determines that:
(1) The licensee's continued use of the public right-of-way will unduly burden the City or the public in its use of that property;
(2) The public right-of-way for which the license was issued will be required for municipal purposes during the term of the license;
(3) The licensee's equipment at a particular location will interfere with:
a. A present or future City use of the right-of-way;
b. A public improvement undertaken or to be undertaken by the City;
c. An economic development project in which the City has an interest or investment; or
d. The public's safety or convenience in using the right- of-way for ordinary travel.
(4) The public health, safety and welfare requires it; or
(5) The continued existence of the license is not in the City's best interests.
G. Notice of intent not to issue a license for use of the public right-of- way shall be given to the applicant, either by certified mail, return receipt requested, or by actual service or delivery thereof, which notice shall be given not more than 30 days after submission of the application. Notice of intent not to renew a license for use of the public right-of-way shall be given to the licensee, either by certified mail, return receipt requested, or by actual service or delivery thereof, which notice shall be given not more than 90 days after submission of the application. Notice of intent to revoke or cancel a license shall also be given to the licensee. The notice shall set forth the grounds for refusal to issue or renew or for revocation or cancellation and shall inform the applicant or licensee of the right to an appeal hearing upon request. At the hearing, the applicant or licensee shall have the burden of establishing that the grounds asserted in the notice do not exist.
H. Upon the effective date of revocation or cancellation as provided in the City Engineer's notice thereof, or upon the effective date specified in the City Engineer's written decision upon the licensee's appeal, the licensee shall be required to cease its use and occupancy of the right-of- way or to remove or relocate its equipment therefrom, as provided in the notice or decision. Equipment not removed or relocated from the right-of-way as required in such notice or order shall be considered a nuisance and may be removed, relocated, or taken possession of by the City, at the licensee's expense. Except in emergency circumstances, the requirement to relocate, remove, or cease use of equipment shall be suspended during the pendency of any appeal taken by a licensee.
I. If a license is refused or cancelled upon the basis that the City property licensed or proposed for licensing is or will be required for municipal purposes, the applicant or licensee shall not be entitled to appeal. However, in that event, the licensee shall be entitled to a partial refund of the annual fee already paid, such refund to be computed on the basis of 1/12 of the required annual fee multiplied by the number of unexpired whole months of the year remaining in the license term. In all other cases where a license is not issued or renewed or is revoked, no refund of any portion of the required annual fee shall be paid to the licensee.
J. Notwithstanding the notice and hearing requirements of this section, the City Engineer may in emergency circumstances order the immediate relocation or removal of equipment from the right-of-way and may, upon the licensee's failure to comply with such order, immediately remove, relocate, or take possession of such equipment at the licensee's expense.
9. Failure to Secure, Renew or Comply.
A. Any person who fails to secure a franchise or license required under this section or any franchisee or licensee who fails to comply with the requirements of this section shall, upon notification of such violation by the City Engineer, immediately act either to abate the violation or to cease its use and occupancy of the right-of-way and remove its equipment or system from the right-of-way.
B. The City reserves the right either to remove or to disconnect and render inoperative any equipment or system in the right-of-way under franchise or license which is used or maintained contrary to this chapter; provided, however, that the City will give written notice of its intent to take such action, including the date upon which such action will be taken, to the affected franchisee or licensee not less than seven days prior to taking such action.
10. Amendment to License. If a licensee with a current license issued pursuant to this section proposes to expand, reduce, relocate or modify any portion of its equipment or system within public right-of-way, the licensee shall file an application for an amendment to the current license with the City Engineer, shall pay the administrative application fee and pay a deposit or post a bond if required. An application for an amendment to a current license shall include relevant new information of the type required in connection with the initial application for a license. If approved, the amended license shall be issued by the City Engineer in the same manner as the original license.
11. Duties of Licensee.
A. No license required under this section or amendment to such license shall be issued for any equipment or system until the required fees have been paid and until a complete application has been filed with and approved by the City Engineer.
B. The licensee's equipment or system shall be installed or constructed in accordance with applicable industry standards, the City's utility accommodation and street restoration specifications, and the terms and conditions imposed by the City.
C. If it becomes necessary to excavate or obstruct any public right-of- way in connection with the installation, construction, reconstruction, repair, operation, disconnection or removal of a licensee's equipment or system, the licensee shall first obtain a permit from the City.
D. The licensee shall maintain its equipment and all parts of its system in good condition, order and repair.
E. The licensee shall be responsible for repairing or reimbursing other licensed or franchised utilities or other persons or entities lawfully using the right-of-way for any damage to their property caused by negligence of the licensee or its agents, employees or contractors in connection with the installation, construction, reconstruction, repair, operation, disconnection or removal of the licensee's equipment or system.
F. No license required under this section shall be issued to authorize placement of a utility system in any space which is required for public use.
12. Relocation or Removal of Equipment; Payment of City Costs Due to Improper Location of Equipment.
A. Under this chapter, the City Engineer shall order the removal or relocation of equipment, as he or she deems appropriate, if the City Engineer determines at any time that:
(1) A registrant's or permittee's continued use of the public right-of-way will unduly burden the City or the public in its use of that property;
(2) The public right-of-way which the registrant or permittee is using or occupying will be required for municipal purposes;
(3) The registrant's or permittee's equipment at a particular location will interfere with:
a. A present or future City use of the right-of-way;
b. A public improvement undertaken or to be undertaken by the City;
c. An economic development project in which the City has an interest or investment; or
d. The public's safety or convenience in using the right- of-way for ordinary travel; or
(4) The public health, safety and welfare requires it.
B. Franchisees and licensees under this chapter shall promptly and at their own expense, with due regard for seasonal working conditions, permanently remove their equipment or relocate their equipment within the right-of-way, whenever the City Engineer orders such removal or relocation, and shall at their sole expense restore the right-of-way to its proper and required condition.
13. Damage to Other Equipment.
A. When any City department performs work in the right-of-way and finds it necessary to maintain, support, or move a permittee's, franchisee's, or licensee's equipment in order to protect it, the costs associated therewith will be billed to that person and must be paid within 30 days from the date of billing. In such event, the City Engineer or City department performing such work shall notify the affected registrant, permittee, franchisee, licensee, or lessee, informing such person of the action it intends to take with respect to such equipment and affording such person the opportunity to review and comment on the action proposed to be taken. If circumstances permit it, the City Engineer or City department performing the work may allow the affected registrant, permittee, franchisee, or licensee to take the action necessary to maintain, support, or move its equipment.
B. Each registrant, permittee, franchisee, or licensee shall be responsible for the cost of repairing any equipment in the right-of-way which it or its equipment damages. Each registrant, permittee, franchisee, or licensee shall be responsible for the cost of repairing any damage to the equipment of another registrant, permittee, franchisee, or licensee occurring during the City's response to an emergency occasioned by that registrant's equipment.
14. Abandoned and Unused Equipment.
A. Under this chapter, a franchisee or licensee who has determined to discontinue its operations in the City, in whole or in part, or who has discontinued use of part or all of its equipment in the right-of-way, must either:
(1) Provide information satisfactory to the City Engineer that its obligations for its equipment in the right-of-way have been lawfully assumed by another franchisee or licensee; or
(2) Submit to the City Engineer a proposal and instruments for transferring ownership of its equipment to the City. If a franchisee or licensee proceeds under this subsection, the City may, at its option:
a. Assume ownership of and responsibility for the equipment; or
b. Refuse transfer of ownership to the City and require the registrant, at its own expense, to remove the equipment.
B. A registrant, franchisee, or licensee who fails to comply with this section and whose equipment remains unused for a period of two years shall be deemed to have abandoned such equipment and the equipment shall be deemed to be abandoned. Abandoned equipment is deemed to be a nuisance. The City may, with respect to abandoned equipment which is deemed a nuisance, exercise any remedies or rights it has at law or in equity, including but not limited to:
(1) Bringing an action for nuisance abatement in which the City may seek the abatement of the nuisance and/or authority to take possession of the equipment; or
(2) Requiring removal of the equipment by the registrant, franchisee, or licensee.
C. Any franchisee or licensee who has unused equipment in any right- of-way shall remove it from the right-of-way during the next scheduled excavation, unless this requirement is waived by the City Engineer.
D. A franchisee or licensee who abandons or ceases use of its equipment as provided in this section and whose proposal to transfer such equipment to the City is accepted by the City shall, nonetheless, be allowed to remove wires or cables from underground conduits and to remove movable equipment from underground vaults or handholes if the City Engineer determines that such removal can be accomplished without damaging such conduits or vaults, and provided such removal can be accomplished without extensive excavation or long-term obstruction of the right-of-way. Such removal shall be accomplished pursuant to appropriate right-of-way permits, which may include conditions regarding the manner of removal and schedule for removal.
15. Reservation of Regulatory and Police Powers. The City by issuing of a right-of-way permit, franchise, or a license under this chapter does not surrender or to any extent lose, waive, impair, or lessen the lawful powers and rights which it has or which may be vested in the City under the state constitution, state law, and the City Charter to regulate the use of the right-of- way by such persons. All such persons by acceptance of a right-of-way permit, franchise, or license are deemed and shall be held to agree that all lawful powers and rights, regulatory power, or police power, or otherwise as are or may be from time to time vested in or reserved to the City, shall be in full force and effect and subject to the exercise thereof by the City at any time. All such persons are further deemed to acknowledge that their rights are subject to the regulatory and police powers of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public and are deemed to have agreed to comply with all applicable general laws and ordinances enacted by the City pursuant to such powers.
16. Existing Franchises. If a conflict of language occurs between the provisions of this chapter and an existing franchise agreement the conflict shall be resolved by honoring the terms of the franchise until it expires.
17. Construction of Chapter. Nothing in this chapter shall be construed as an acquiescence in or ratification of the occupancy or use of any public right- of-way in the City by any person occupying the right-of-way without legal right, nor shall this chapter be construed as conferring the right to occupy or use any public right-of-way within the City upon any such person illegally or without authority occupying the right-of-way.