(a) Rights conveyed. Consent granted to or initially presumed of a service provider to occupy or use the public right-of-way under § 1050.02:
(1) Shall be limited to a grant to occupy or use the specific public right-of-way and defined portions thereof including the specific system or facilities and location along the public right-of-way;
(2) Shall not confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the city to operate a system for delivery of services or any other purposes; and
(3) Shall not convey any right, title or interest in the public right-of-way, but shall be deemed consent only to occupy or use the public right-of-way for the limited purposes granted by the consent. Further, no consent shall be construed as any warranty of title.
(b) Maintenance of facilities. Each service provider shall maintain its system or facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements.
(c) Safety procedures. A service provider or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as necessary and in accordance with applicable state and local requirements 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 public right-of-way or property.
(d) Interference with the public rights-of-way. No service provider may locate or maintain its facilities so as to unreasonably interfere, as determined by the City Manager, with the use of the public right-of-way by the city, by the general public or by other persons authorized to use or be present in or upon the public right-of-way. All such facilities shall be moved by the service provider, temporarily or permanently, as determined by the City Manager.
(e) Damage to public and private property. No service provider nor any person acting on the service provider's behalf shall take any action or permit any action to be done which may impair or damage any city property, public right-of-way, other ways or other public or private property located in, on or adjacent thereto.
(f) Restoration of public right-of-way, other ways and city property.
(1) When a service provider, or any person acting on its behalf, does any construction, reconstruction, excavation, routine maintenance, emergency work or any other work in or affecting any public right-of-way, other ways or city property, it shall, after the work is completed and at its own expense, promptly remove any obstructions from and restore such ways or property, within ten to 60 days, at the City Manager's discretion, to as good a condition as existed before the work was undertaken, unless otherwise directed by the city.
(2) If weather or other conditions prevent the complete restoration required by this section, the service provider shall temporarily restore the affected ways or property as directed by the City Manager, at the service providers' sole expense. The service provider shall promptly undertake and complete the required permanent restoration when weather or other conditions no longer prevent permanent restoration.
(3) If the service provider does not timely complete the required temporary or permanent restoration as directed by the City Manager, the city may complete the restoration at the service provider's expense and may draw upon the performance bond to reimburse the city for its costs incurred in performing the restoration.
(g) Duty to provide information. Within ten days of a written request from the City Manager, each service provider shall:
(1) Furnish the city with documentation sufficient to show that the service provider has complied with all requirements of this chapter.
(2) Make available for inspection by the city, at reasonable times, all books, records, maps and other documents, maintained by the service provider with respect to its facilities in the public right-of-way.
(h) Leased capacity. A service provider shall have the right, without prior city approval, to lease capacity or bandwidth to an unaffiliated service provider, provided that if the lessee has authorized physical access to the service provider's facilities:
(1) The service provider shall notify the city of the lease agreement within 30 days of such lease agreement; and
(2) The lessee has complied with the applicable requirements of this chapter.
(i) Assignments or transfers of consent. Consent to occupy or use the public right-of-way may be, directly or indirectly, transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the service provider, by operation of law or otherwise, without consent of the city; provided that with respect to any transactions (including transactions between affiliated entities) that singularly or collectively result in a change of 25% or more of the ownership or ultimate working control of a service provider, of the ownership or working control of the service provider's facility, or of control of the capacity or bandwidth of the service provider's system, facilities or substantial parts thereof, the transferor and transferee shall comply with the following:
(1) Notify the city no later than 30 days after the date of transfer; and
(2) The transferee shall fully comply with this chapter within 60 days of the transfer, including, but not limited to providing the city with all information required by the application for consent or initial registration required by § 1050.02(d) of this chapter.
(j) Revocation of consent; suspension of registration. Subject to § 1050.05(k) and applicable state and federal law, the city may revoke consent granted to occupy or use the city's public right-of-way, suspend a service provider's registration and/or revoke a construction permit for any one of the following reasons:
(1) Construction, reconstruction or operation or excavation at an unauthorized location.
(2) Construction, reconstruction or operation in violation of city safety and/or construction requirements.
(3) Material misrepresentation or lack of candor by or on behalf of a service provider in any application or registration required by this chapter.
(4) Failure to relocate or remove facilities, or failure to restore the public right-of-way, as required by this chapter.
(5) Insolvency or bankruptcy of the service provider.
(6) Violation of material provisions of this chapter.
(k) Notice of violation and duty to cure. In the event that the City Manager believes that grounds exist for revocation of consent to occupy or use the public right-of-way or construction permit, or suspension of registration, he or she shall give the service provider written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the service provider a reasonable period of time not exceeding 30 days to furnish evidence:
(1) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance;
(2) That rebuts the alleged violation or noncompliance; and/or
(3) That a lesser penalty or sanction would better serve the public interest.
(Ord. 08-O-2455, passed 3-18-2008)