A. Location Of Facilities: All facilities shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a license or franchise agreement:
1. A grantee shall install its telecommunications facilities within an existing underground duct or conduit whenever excess capacity exists and is available within such utility facility.
2. A grantee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if surplus space is available.
3. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the city, a grantee with permission to occupy the same public way must also locate its telecommunications facilities underground.
4. Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public way of the city, a grantee that currently occupies the same public way shall relocate its facilities underground within a reasonable period of time, which shall not be later than the end of the grant term. Absent extraordinary circumstances or undue hardship as determined by the city engineer, such relocation shall be made concurrently to minimize the disruption of the public ways.
5. Whenever new telecommunications facilities will exhaust the capacity of a public street or utility easement to reasonably accommodate future telecommunications carriers or facilities, the grantee shall provide additional ducts, conduits, manholes and other facilities for nondiscriminatory access to future carriers.
B. Construction Permits: All license or franchise grantees are required to obtain construction permits for telecommunications facilities as required in section 8-3-32, "Construction Standards", of this chapter. However, nothing in this chapter shall prohibit the city and a grantee from agreeing to alternative plan review, permit and construction procedures in a license or franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
C. Interference With The Public Ways: No license or franchise grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the city, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by the grantee temporarily or permanently, as determined by the city engineer.
D. Damage To Property: No license or franchise grantee nor any person acting on a grantee's behalf shall take any action or permit any action to be done which may impair or damage any city property, public ways of the city, other ways or other property located in, on or adjacent thereto.
E. Notice Of Work: Unless otherwise provided in a license or franchise agreement, no license or franchise grantee, nor any persons acting on the grantee's behalf, shall commence any nonemergency work in or about the public ways of the city or other ways without ten (10) working days' advance notice to the city.
F. Repair And Emergency Work: In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the city as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable.
G. Maintenance Of Facilities: Each license or franchise grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements.
H. Relocation Or Removal Of Facilities: Within thirty (30) days following written notice from the city, a license or franchise grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways whenever the city council shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
1. The construction, repair, maintenance or installation of any city or other public improvement in or upon the public way.
2. The operations of the city or other governmental entity in or upon the public way.
I. Removal Of Unauthorized Facilities: Within thirty (30) days following written notice from the city, any grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public ways of the city shall, at its own expense, remove such facilities or appurtenances from the public ways of the city. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:
1. Upon expiration or termination of the grantee's telecommunications license or franchise.
2. Upon abandonment of a facility within the public ways of the city.
3. If the system or facility was constructed or installed without prior grant of a telecommunications license or franchise.
4. If the system or facility was constructed or installed without prior issuance of a required construction permit.
5. If the system or facility was constructed or installed at a location not permitted by the grantee's telecommunications license or franchise.
J. Emergency Removal Or Relocation Of Facilities: The city retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the city, as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency.
K. Damage To Grantee's Facilities: Unless directly and proximately caused by the wilful, intentional or malicious acts by the city, the city shall not be liable for any damage to or loss of any telecommunications facility within the public ways of the city as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public ways by or on behalf of the city.
L. Restoration Of Public Ways, Other Ways And City Property:
1. When a license or franchise grantee, or any person acting on its behalf, does any work in or affecting public ways, other ways or city property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to as good a condition as existed before the work was undertaken, unless otherwise directed by the city.
2. If weather or other conditions do not permit the complete restoration required by this section, grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the licensee's sole expense and the licensee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
3. A grantee or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required 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 ways of property.
M. Facilities Maps: Each license or franchise grantee shall provide the city with an accurate map or maps certifying the location of all telecommunications facilities within the public ways. Each grantee shall provide updated maps annually.
N. Duty To Provide Information: Within ten (10) days of a written request from the city clerk, each license or franchise grantee shall furnish the city with information sufficient to demonstrate:
1. That grantee has complied with all requirements of this chapter.
2. That all taxes, fees and/or charges due to the city in connection with the telecommunications services and facilities provided by the grantee have been properly collected and paid by the grantee.
3. All books, records, maps and other documents, maintained by the grantee with respect to its facilities within the public ways shall be made available for inspection by the city at reasonable times and intervals.
O. Leased Capacity: A license or franchise grantee shall have the right, without prior city approval, to offer or provide capacity or bandwidth to its customers; provided:
1. Grantee shall furnish the city with a copy of any such lease or agreement.
2. The customer or lessee has complied, to the extent applicable, with the requirements of this chapter.
P. Grantee Insurance: Unless otherwise provided in a license or franchise agreement, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both of grantee and the city, and its elected and appointed officers, officials, agents and employees as coinsureds:
1. Comprehensive general liability insurance with limits not less than:
a. Five million dollars ($5,000,000.00) for bodily injury or death to every person.
b. Five million dollars ($5,000,000.00) for property damage resulting from any one accident; and
c. Five million dollars ($5,000,000.00) for all other types of liability.
2. Automobile liability for owned, nonowned and hired vehicles with a limit of three million dollars ($3,000,000.00) for each person and three million dollars ($3,000,000.00) for each accident.
3. Workers' compensation within statutory limits and employer's liability insurance with limits of not less than one million dollars ($1,000,000.00).
4. Comprehensive form premises operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than three million dollars ($3,000,000.00).
5. The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the telecommunications license or franchise, and such other period of time during which the grantee is operating without a franchise or license hereunder, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsements:
It is hereby understood and agreed that this policy may not be cancelled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, or a written notice addressed to the City Clerk of such intent to cancel or not to renew.
6. Within sixty (60) days after receipt by the city of said notice, and in no event later than thirty (30) days prior to said cancellation, the grantee shall obtain and furnish to the city replacement insurance policies meeting the requirements of this section.
Q. General Indemnification: Each license or franchise agreement shall include, to the extent permitted by law, grantee's express undertaking to defend, indemnify and hold the city and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expense, including reasonable attorney fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a grant agreement made or entered into pursuant to this chapter.
R. Performance And Construction Surety: Before a license or franchise granted pursuant to this chapter is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the city as may be required by this chapter or by an applicable license or franchise agreement.
S. Construction And Completion Bond: Unless otherwise provided in a license or franchise agreement, a performance bond written by a corporate surety acceptable to the city equal to at least one hundred percent (100%) of the estimated cost of constructing grantee's telecommunications facilities within the public ways of the city shall be deposited before construction is commenced.
1. The construction bond shall remain in force until sixty (60) days after substantial completion of the work, as determined by the city engineer, including restoration of public ways and other property affected by the construction.
2. The construction bond shall guarantee, to the satisfaction of the city:
a. Timely completion of construction;
b. Construction in compliance with applicable plans, permits, technical codes and standards;
c. Proper location of the facilities as specified by the city;
d. Restoration of the public ways and other property affected by the construction;
e. The submission of "as-built" drawings after completion of the work as required by this chapter;
f. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.
T. Coordination Of Construction Activities: All grantees are required to cooperate with the city and with each other.
1. By February 1 of each year, grantees shall provide the city with a schedule of their proposed construction activities in, around or that may affect the public ways.
2. Each grantee shall meet with the city, other grantees and users of the public ways annually or as determined by the city to schedule and coordinate construction in the public ways.
3. All construction locations, activities and schedules shall be coordinated, as ordered by the city engineer, to minimize public inconvenience, disruption or damages.
U. Assignments Or Transfers Of Grants: Ownership or control of a telecommunications system, license or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior consent of the city, which consent shall not be unreasonably withheld or delayed, as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein.
1. No grant shall be assigned or transferred in any manner within twelve (12) months after the initial grant of the license or franchise, unless otherwise provided in a license or franchise agreement.
2. Absent extraordinary and unforeseeable circumstances, no grant, system or integral part of a system shall be assigned or transferred before construction of the telecommunications system has been completed.
3. Grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the city not less than one hundred fifty (150) days prior to the proposed date of transfer:
a. Complete information setting forth the nature, terms and conditions of the proposed transfer or assignment;
b. All information required of a telecommunications license or franchise applicant pursuant to subsection 8-3-5A or 8-3-17A of this chapter with respect to the proposed transferee or assignee;
c. Any other information reasonably required by the city.
4. No transfer shall be approved unless the assignee or transferee has the legal, telecommunications, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant to this chapter.
5. Unless otherwise provided in a license or franchise agreement, the grantee shall reimburse the city for all direct and indirect fees, costs, and expenses reasonably incurred by the city in considering a request to transfer or assign a telecommunications license or franchise.
6. Any transfer or assignment of a telecommunications grant, system or integral part of a system without prior approval of the city under this section or pursuant to a license or franchise agreement shall be void and is cause for revocation of the grant.
V. Transactions Affecting Control Of Grant: Any transactions which singularly or collectively result in a charge of ten percent (10%) or more of the ownership or working control of the grantee, of the ownership or working control of a telecommunications license or franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth of grantee's telecommunications system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring city approval pursuant to subsection U of this section. Transactions between affiliated entities are not exempt from city approval.
W. Revocation Or Termination Of Grant: A license or franchise granted by the city to use or occupy public ways of the city may be revoked for the following reasons:
1. Construction or operation in the city or in the public ways of the city without a license or franchise grant of authorization.
2. Construction or operation at an unauthorized location.
3. Unauthorized substantial transfer of control of the grantee.
4. Unauthorized assignment of a license or franchise.
5. Unauthorized sale, assignment or transfer of grantee's franchise or license assets, or a substantial interest therein.
6. Misrepresentation or lack of candor by or on behalf of a grantee in any application to the city.
7. Abandonment of telecommunications facilities in the public ways.
8. Failure to relocate or remove facilities as required in this chapter.
9. Failure to pay taxes, compensation, fees or costs when and as due the city.
10. Insolvency or bankruptcy of the grantee.
11. Violation of material provisions of this chapter.
12. Violation of the material terms of a license or franchise agreement.
X. Notice And Duty To Cure: In the event that the city clerk believes that grounds exist for revocation of a license or franchise, he shall give the grantee written notice of the apparent violation or noncompliance, and providing the grantee a reasonable period of time not exceeding thirty (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.
3. That it would be in the public interest to impose some penalty or sanction less than revocation.
Y. Hearing: In the event that a grantee fails to provide evidence reasonably satisfactory to the city clerk as provided in subsection X of this section, the city clerk shall refer the apparent violation or noncompliance to the city council. The city council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter following the same procedure as used in quasi judicial hearings.
Z. Standards For Revocation Or Lesser Sanctions: If persuaded that the grantee has violated or failed to comply with material provisions of this chapter, or of a franchise or license agreement, the city council shall determine whether to revoke the license or franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:
1. Whether the misconduct was egregious.
2. Whether substantial harm resulted.
3. Whether the violation was intentional.
4. Whether there is a history of prior violation of the same or other requirements.
5. Whether there is a history of overall compliance.
6. Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 549, 10-12-2000)