A. The applicant shall be required to comply with all aspects of the City's Rights-of-Way Management Plan and Standards, as may be amended from time to time, and all other City requirements pertaining to constructing and maintaining facilities within the public rights-of-way. Applications pursuant to the Rights-of-Way Management Plan and Standards shall be separate from the requirements of § 11.26.020 herein.
B. No encroachment permit agreement granted under this Chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public rights-of-way for the delivery of any services within the City, whether delivered by the applicant or any other entity using the facilities of the applicant pursuant to the requirements of Division E. of this Section.
C. Any encroachment permit agreement granted shall become effective only after the City and the applicant have executed a written agreement setting forth the particular terms and conditions under which the applicant will occupy and utilize the public rights-of-way, including the period of time for which the permit is granted. No construction may begin within the public rights-of-way prior to the full execution of said written agreement.
D. Each encroachment permit agreement shall require the permitted to pay such fees as the City may establish from time to time to recover costs associated with the use of the rights-of-way. In addition, each encroachment permit agreement shall require a permittee to pay for the use and occupancy for the rights-of-way, except to the extent and for the period of time established that a permittee is exempt from such fee under Cal. Public Utilities Code § 7901. The amount of the fees will be established in each permit agreement, based on the nature of the work proposed, its location, and the amount of public property used.
E. The applicant's facilities shall be placed, constructed, owned, controlled, operated, managed, and used solely and exclusively for the purpose(s) and use(s) expressly set forth in the public encroachment permit agreement of § 11.26.040(C).
F. Any encroachment permit agreement granted under this Chapter shall be for the nonexclusive use of the public rights-of-way. By executing an encroachment permit agreement, the City does not agree to restrict the number of permit agreements to be executed that cover ail or any part of the City for any person in the same business, a competing business, or a related business to the applicant.
G. Any encroachment permit agreement only authorizes the use of the public rights-of-way and the use of any other public property, whether located within or outside a public rights-of-way, is strictly prohibited unless authorized by a separate lease or license agreement with the City.
H. Any privilege claimed by the recipient of an encroachment permit agreement ire any public rights-of-way shall be subordinate to any prior lawful occupancy of the public rights-of-way, and subordinate to any uses by the City.
I. To the maximum extent permitted by applicable law, a permit agreement permittee shall at all times, defend, indemnify, protect, save harmless and exempt the City, the City Council, its officers, agents, servants, attorneys and employees, from any, and all, penalty, damage or charges arising out of claims, suits, demands, causes of action, or award of damages whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which arise out of, or are caused by, the construction, erection, location, performance, operation, maintenance, repair, installation, replacement, removal or restoration of telecommunications facilities within the City based upon any act or omission of the permit recipient, its agents or employees, contractors, subcontractors, independent contractors, or representatives. Reasonable attorney's fees, consultants' fees, and expert witness fees are included as those costs that shall be recovered by the City from the permit recipient.
J. A permit agreement permittee shall secure and maintain, public liability, property damage insurance, and umbrella coverage in at least the following amounts:
1. Public liability. Five million dollars ($5,000,000) per person per occurrence;
2. Property damage. Five million dollars ($5,000,000) per any one claim;
3. Umbrella liability. Ten million dollars ($10,000,000).
The public and personal liability and property damage insurance policy shall specifically include the City, the City Council, the City's employees and agents as additional insured, and shall be issued by an agent or representative of an insurance company licensed to do business in the state and which has one of the three highest or best ratings from the Alfred M. Best Company. The public liability and property damage insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least thirty (30) days written notice in advance of the cancellation of the policy.
Evidence of self-insurance in the amounts required herein may be substituted for the insurance policy. Thirty (30) day notification of any changes in self-insurance status shall be required.
K. Prior to issuance of any encroachment permit agreement, applicant shall furnish proof of the posting of a faithful performance bond in favor of the City, with corporate surety approved by the City in the sum specified in the permit, and conditioned that the applicant shall well and truly observe, fulfill, and perform each term and condition of the permit; provided, however, that such bond shall not be required after certification by the City of the completion of construction. During the course of construction, the amount of the bond may, from time to time, be reduced as provided in the permit.
L. Upon written request, any permit recipient shall provide to the City, in a format specified by the City, on a computer disk or other data storage device requested by the City, the details of all the permittee's equipment and facilities and their geographic location in the City. The permittee shall maintain a complete and up-to-date set of as-built maps and drawings upon completion of construction or reconstruction.
M. In addition to all other rights and power retained by the City, the City shall have the right to revoke any encroachment permit agreement granted and to terminate all rights and privileges of the permit in the event of a substantial breach of the terms and conditions of said permit, or of any rule or regulation of the City. A substantial breach shall include, but not be limited to, the following:
1. Violation of any material provision of this Chapter or any permit granted or renewed pursuant thereto;
2. Any attempt to evade any material provision of the permit agreement or to practice any fraud or deceit or deception upon the City;
3. The failure to begin or complete construction as provided under this Chapter and under the permit agreement;
4. Material misrepresentation of fact in the application or negotiation of the permit agreement;
5. Conviction of any director, officer, employee, or agent of a permittee of the offense of bribery or fraud connected with or resulting from the awarding of the permit agreement;
6. Failure to pay an permit fee or other payment required by this Chapter, or required by any permit grated pursuant to this Chapter, to the City when due. Failure to pay said fee shall also require the permittee to pay interest on any past-due fee or compensation to the City at the rate of one and one-half percent (1.5%) per month compounded on the unpaid amount.
7. The revocation of any federal or state authorization upon which the grant of the encroachment permit agreement was based.
N. By accepting any permit agreement issued pursuant to this Chapter, the permittee acknowledges that notice is and was given pursuant to Cal. Revenue and Taxation Code § 107.6 that use or occupancy of any public property may cause certain taxes to be levied upon such interest. The permittee shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against its right to possession, occupancy or use of the public rights-of-way or public property pursuant to any right of possession, occupancy or use created by any permit agreement.
(Ord. No. 2001-007 § 1)