(A) Encroachment permit. A franchisee shall be subject to and comply with the additional or supplementary terms and conditions of any encroachment on rights-of-way permit, as may be amended from time to time, subject to § 63.001(D).
(B) Subsection intentionally left blank.
(C) Removal of facilities. Upon expiration of a franchise, whether by lapse of time, by agreement between the franchisee and the city, or by forfeiture thereof, the franchisee shall remove, at its sole cost, from the rights-of-way any and all of its facilities that are the subject of such franchise within a reasonable time after such expiration, not to exceed ninety (90) days, and, it shall be the duty of the franchisee immediately upon such removal to restore the rights-of-way from which the facilities are removed to as good condition as the same were before the removal was effected and as required by the city. Notwithstanding the foregoing, the city may allow facilities to be left in place when the city determines in its sole discretion that it is not practical or desirable to require removal.
(D) Relocation of facilities. Whenever the city shall in its exercise of the public interest request of the franchisee to relocate or reinstall any of its facilities, the franchisee shall, within ten (10) days remove, relocate, or reinstall any such facilities as may be reasonably necessary to meet the request. The cost of such relocation, removal, or reinstallation of the facilities shall be the exclusive obligation of the franchisee. Upon request of any other person requesting relocation of facilities and holding a validly issued building or moving permit of the city, a franchisee shall, within ten (10) days, temporarily raise, lower, or relocate its wires or other facilities as may be required for the person to exercise the rights under the permit; provided, however, that the franchisee may require such permit holder to make payment to franchisee in advance for any expenses incurred by the franchisee to temporarily move its facilities pursuant to such person's request.
(E) Franchisee responsible for costs. A franchisee shall be responsible for all reasonable costs incurred by the city that are directly associated with the franchisee's erecting, installing, maintaining, operating, repairing, replacing, removing or restoring its facilities in the rights-of-way. A franchisee shall be responsible for its own costs incurred in removing or relocating its facilities when required by the city due to the city requirements relating to maintenance and use of the rights-of-way for the city purposes.
(F) Insurance and bonds. During the term of any franchise, a franchisee shall obtain and maintain at its sole expense, all insurance and bonds required by this chapter. It is expressly understood that the city does not in any way represent that the specified limits of liability or coverage or policy forms are sufficient or adequate to protect the interest or liabilities of franchisee.
(1) Franchisee shall file with the city a franchise bond in the amount of fifty thousand dollars ($50,0000.00). In the event there are no claims against the franchise bond within the first two years of the franchise, franchisee may reduce the amount of the franchise bond to twenty-five thousand dollars ($25,000.00).A franchisee seeking to construct or install a system in the city shall file with the city a performance bond in an amount to be determined by the city. In no event shall the amount of the performance bond required by the city exceed the reasonable costs of repairing the rights-of-way in the event of non-performance by the franchisee. The performance bond shall provide for the faithful performance of construction and installation of franchisee's system. One year after demonstration of the completion of the construction of the system by franchisee to the city, the city shall release the performance bond.
(2) The performance bond shall indemnify the city in its own right and as trustee, from any damages or losses arising out of the failure of franchisee to faithfully perform and satisfactorily complete construction of the system in accordance with this chapter.
(3) The failure of franchisee to comply with its obligations under this chapter or the franchise as determined by the city shall entitle the city to draw against either or both of franchisee's performance bonds, subject to § 63.010(B)(2)(b).
(4) The rights reserved to the city with respect to the performance and franchise bonds required hereunder are in addition to all other rights of the city, whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such performance or franchise bonds shall affect any other rights the city may have.
(5) Unless otherwise released by the city, the performance or franchise bonds required hereunder shall not expire or be materially altered without thirty (30) days written notice and without securing and delivering to the city a substitute, renewal and replacement bond in conformance with this chapter. In the event the city does draw monies against the performance bond required hereunder, within ten (10) days thereafter, franchisee shall pay such funds to the bonding company as necessary to bring said performance and/or franchise bonds back to the applicable principal, where it shall continue to be maintained. The performance and franchise bonds required hereunder shall contain the following endorsements:
"It is hereby understood and agreed that this bond may not be reduced, altered or canceled by franchisee or surety without thirty (30) days written notice, by certified mail, to the City of Berea. Such termination or cancellation shall have no effect on any liability incurred or accrued under this bond prior to the effective date of such termination or cancellation."
(6) Immediately upon the effective date of the resolution granting a franchise under this chapter, franchisee shall file with the city the following proof of liability insurance issued by a company(ies) authorized to do business in the Commonwealth with an AM Best Rating of A- or better:
(a) General Liability Insurance, via an occurrence form, covering bodily injury, including death, personal injury and property damage, and including completed operations, contractual liability, independent contractors protective liability and personal injury liability protection. The minimum acceptable limit of liability amount is one million dollars ($1,000,000.00) per occurrence and aggregate under a combined single limit. This policy must include the city, including its mayor and city council members, as additional insureds as respects all operations of the insured franchisee. The city reserves the right to make reasonable increases in the required amount of insurance coverage herein at any time, subject to § 63.005(A)(2) of this chapter. Nothing herein is intended as a limitation on the extent of any legal liability of the franchisee.
(b) Automobile liability, insuring all owned, non-owned and hired motor vehicles. The minimum coverage liability limit is one million dollars ($1,000,000.00) combined single limit for any one accident. The limit of liability may be subject to increase according to any applicable state or federal transportation regulations. This policy must include the city, including its mayor and city council members, as additional insureds as respects all operations of the insured franchisee.
(c) Workers' Compensation (if applicable), insuring the employers' obligations under KRS Chapter 342 at statutory limits.
(7) Franchisee shall maintain on file with the city a certificate of insurance certifying the coverage required under this chapter, which certificate shall be subject to the approval of the city as to the adequacy of the certificate and of the insurance certified under the requirements of this chapter. It is agreed that insurers that meet the A.M. Best Supplier rating of A-VII shall be deemed acceptable by the city. Such certificate shall be identified on its face by the name of franchisee, and shall be submitted to the city, in accordance with the terms and conditions of this chapter. Failure to maintain adequate insurance as required under this chapter shall be deemed a breach of the franchise.
(8) The city reserves the right to make increases in the amount of insurance coverage referred to in this section at any time, subject to § 63.005(A)(2).
(G) Permits. Prior to performing any construction or installation work in the public rights-of-way, franchisee shall apply to the city for any necessary permit, and shall include descriptive information about the specific location of any lines, facilities, boxes, or related equipment. All terms and conditions of the permit application shall apply and be adhered to.
(1) Franchisee shall furnish detailed plans of the work to be done within the rights- of-way and provide other such information as required by the city. Franchisee will provide the city with a detailed construction plan on which the parties will agree ahead of any work, so that it can proceed immediately with the build.
(2) Franchisee shall coordinate any construction work within the rights-of-way with the city and shall begin construction work only after approval of the city.
(3) All permits issued by the city shall be conspicuously displayed at all times at the indicated work site and shall be available for inspection by city personnel.
(H) Notification. Franchisee shall notify the city, in writing, at least fifteen (15) days prior to construction. Such written notification shall contain the location of the construction, the starting date and the estimated completion date.
(I) Standards. Any work required or performed pursuant to this chapter shall be done in accordance with federal, state and local law, and the National Electric Safety Code.
(1) In the event that franchisee leases space on the poles or in the conduits of an electric or other utility, franchisee shall abide by the construction and other requirements of that utility, and the granting of a franchise by the city shall not be construed or interpreted in any way to alleviate franchisee's responsibilities and obligations to the pole or conduit owner.
(2) Franchisee, its contractors, sub-subcontractors and anyone directly or indirectly employed by franchisee shall conduct such operations so as to promote and preserve the public safety and general welfare of the citizens of the city.
(3) All construction, installation or maintenance by franchisee shall be completed with diligence and with respect to all interests and rights of the public.
(J) Traffic. Franchisee's work in the rights-of-way shall be accomplished with a minimum of disruption and interference to the free flow of vehicular and pedestrian traffic on the rights-of-way or public land.
(1) Franchisee shall maintain lanes of vehicular traffic in each direction at all times during construction, installation or maintenance activity.
(2) Traffic control devices to protect and control pedestrian and vehicular traffic in any construction, maintenance or installation areas may be prescribed by the city in accordance with the manual on uniform traffic control devices.
(K) Delay. Improvements to city rights-of-way conducted by the city or its contractors shall not be delayed by any franchisee work authorized by this chapter.
(L) Special exceptions. The city may grant a special exception to the requirements of this chapter if a franchisee, upon application, demonstrates with written evidence that:
(1) The exception will not create any threat to the public health, safety or welfare;
(2) The increased economic burden and the potential adverse impact on franchisee's construction schedule resulting from the strict enforcement of the requirement would actually or effectively prohibit the ability of franchisee to provide communications service in the city; and
(3) The requirement unreasonably discriminates against franchisee in favor of another comparable communications service provider.
(4) Any special exceptions shall be granted in a non-discriminatory manner.
(M) Inspections. All construction, installation and operation of franchisee's system in the rights-of-way are subject to inspection by the city.
(N) Repair of sunken pavement over excavation. In case the pavement or the surface of the rights-of-way over any excavation should become depressed or broken at any time within five (5) years after the excavation has been completed and before resurfacing of the rights-of-way, natural wear of the surface excepted, franchisee shall, upon written notice from the city, immediately proceed to inspect the depressed or broken area over the excavation to ascertain the cause of the failure. Franchisee shall make repairs to the installation or backfill and have the pavement restored as specified by the city, within such time period as may be specified by the city. If the pavement is not restored as specified by the city within the time period specified by the city, and unless delayed by a strike or conditions beyond franchisee's control, the city may cause the work to be done after giving franchisee twenty-four (24) hours final notice. The cost thereof, including, but not limited to, any inspection costs and administrative overhead incurred by the city, shall be assessed against franchisee.
(O) In the event that the use of any part of the system is discontinued for any reason by any franchisee for a continuous period of twelve (12) months, or in the event such system or facility has been installed in rights-of-way without complying with requirements of this chapter, or the rights granted hereunder have been terminated, cancelled or have expired, the franchisee shall promptly remove from the rights-of-way all such facilities of such system, other than any which the city may permit to be abandoned in place. In the event of such removal, the franchisee shall promptly restore the rights-of-way from which such facilities have been removed to a condition satisfactory to the city. Any facilities of a franchisee to be abandoned in place, shall be abandoned in such manner as the city may prescribe. Upon a permanent abandonment of the facilities of a franchisee in place, the franchisee shall submit to the city an instrument to be approved by the city, transferring to the city the ownership of such facilities.
(P) During any phase of construction, installation, maintenance, or repair of the system, the franchisee shall use materials of good and durable quality. All such work shall be performed in a safe, thorough and reliable manner and in compliance with city ordinance and regulations, as amended.
(Ord. No. 04-2021, § 1, 3-2-21)