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All licenses required by this chapter shall be granted by the City Manager. The City Manager shall review each application and shall grant each license which he or she determines to be in compliance with the requirements of this chapter and any other applicable legal requirements. In granting a license, the City Manager may change the proposed location of the communications system where necessary to avoid interference with other cables, wires, conduits, pipes, sewers or other facilities placed within the public right-of-way.
In the event that a licensee with a current license proposes to expand, reduce, relocate or modify any portion of its communications system within the public right-of-way, the licensee shall file an application for an amendment to its current license with the City Manager. 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, and it shall be considered and granted by the City Manager in the same manner as the original license application. However, if the amendment involves only one or more new hook-on connections to the main licensed communications system, and if the new connections will be made entirely through existing underground utility conduit or ducts so as not to require any excavation in the public right-of-way, or by means of overhead wires or cables between existing utility poles, then the licensee shall not be required to pay an additional administrative fee as part of the application for amendment.
1. No license required under this chapter, or amendment to such license, shall be granted for any communications system until the required fees have been paid, and until a complete application has been filed with and approved by the City Manager.
2. The system shall be installed or constructed in accordance with the terms of the license granted by the City Manager.
3. Once the system is in place, the licensee shall file with the City Manager an as-built survey specifying the actual location of the system, including any manholes or overhead poles, and the licensee shall provide such signs or other economically feasible means of locating the system as may be reasonably required by the City Manager, including in the case of underground systems, a requirement that the licensee contract with a one-call locating service or similar locating service for inclusion of the system by the service.
4. If it becomes necessary to dig into, excavate in or in any manner break up any public right-of-way in connection with the installation, construction, reconstruction, repair, operation, disconnection or removal of the system, the licensee shall first obtain a permit from the City to do so in accordance with Chapter 135 of this Code of Ordinances.
5. All technical standards governing installation, construction, reconstruction, repair, operation, disconnection and removal of a communications system licensed hereunder shall be in accordance with all applicable Federal Communications Commission and other Federal, state and City laws and regulations.
6. The licensee shall maintain all parts of the system in good condition, order and repair.
7. The licensee shall be responsible for repairing or reimbursing other licensed or franchised utilities or communications systems 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 communications system.
8. Any license required under this chapter need not be granted to authorize placement of a communications system in any space which the City Manager reasonably believes will be required for public use.
9. Failure by the licensee to comply with any of the requirements of the license or this chapter shall constitute grounds for termination of the license by the City.
The licensee shall, upon sixty (60) days’ notice from the City and at no cost to the City, protect, support, or temporarily or permanently disconnect, relocate within the same or other public right-of-way, or remove any or all of its communications system when required to do so by the City because of street or other public excavation, construction, repair, grading or regrading; traffic conditions; installation of sewers, drains, water pipes, or City-owned power or signal lines; vacation or relocation of public right-of-way; installation or construction of any other type of structure by the City or any other public agency; or any other type of structure by the City or any other public agency; or any other type of improvement which promotes the public health, safety or welfare. In case of an emergency, the City shall have the ability to direct the licensee to temporarily protect, support or disconnect or relocate their communications system until the emergency condition subsides so that the public health, safety or welfare is no longer under threat of the emergency.
1. It shall be a term and condition of any license issued pursuant to this chapter that, as part of the consideration supporting the issuance of such license and the City’s permission thereby to occupy and use the public right-of-way of the City, the licensee shall pay to the City fees computed as follows:
A. An administrative fee of fifty dollars ($50.00) shall be due and payable to the City Manager at the time of filing of the initial license application and at the time of filing of each proposed amendment to the license.
B. If the licensed communications system serves no customers other than the licensee itself, then, in addition to the above mentioned administrative fee, the licensee shall pay a fee to the Director of Building and Planning at the time of filing of the initial license application. The amount of the use fee shall be the greater of the following two amounts: (i) $100.00; or (ii) $1.00 per lineal foot of route traversed by the communication line within any public right-of-way in a C-2 zone and $.50 per lineal foot in any other part of the City. At the time of filing of each proposed amendment to the license involving an increase in the length of route traversed by the communication line within public right-of-way, the licensee shall pay to the City Manager an additional fee computed at the rate of $1.00 per lineal foot of additional route traversed within any public right-of-way.
C. If the licensed communications system serves customers other than the licensee itself, then, in addition to the above mentioned administrative fee, the licensee shall pay an annual use fee to the City Manager. The annual use fee shall be based on a license year ending on March 31 of each year, and the use fee for each license year shall be due and payable at the end of such year on March 31, or if the license has terminated during such year, on the date of termination. The amount of the annual use fee shall be the greater of the following two amounts: (i) $100.00; or (ii) three percent of the gross revenues derived by the licensee from the sale or exchange of communications services in connection with the operation of the licensee’s communications system within the public right-of-way during the license year. Each annual use fee payment shall be accompanied by a report from the licensee in a form approved by the City Manager and the City legal department showing the basis for the computation of the fee and such other relevant data as may be required by the City Manager and the City legal department. Each such report shall contain a notarized verification by the chief financial officer of the licensee, and upon request by the City, such reports shall be verified by a certified public accountant at the expense of the licensee.
2. The following communications systems shall be exempt from the use fee requirements:
A. Local exchange systems either operated pursuant to authority granted by the State of Iowa or operated in competition with another local exchange system provided the other system is operated pursuant to authority granted by the State of Iowa. For the purpose of this subsection, the term “competition” shall have the meaning ascribed to the term in the Code of Iowa.
B. Long distance systems.
C. Communications systems franchised by the City or used for a purpose accessory and subordinate to the conduct of a utility franchised by the City.
3. Upon receipt of payment of any of the fees required under this chapter, and recording of same in his or her files, the City Manager shall deliver same to the City Treasurer.
4. The acceptance of any use fee payment by the City shall not be construed as an acknowledgement 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. All use fee payments shall be subject to audit by the City Manager and assessment or refund if the payment is found to be in error. In the event that such audit results in an assessment by and an additional payment to the City, such additional payment shall be due and payable immediately, together with interest at the rate of eight percent (8%) per year calculated from the due date for the use fee in question.
5. The licensee shall pay interest at the rate of 8% per year on any overdue use fee calculated from the due date for the use fee.
6. Nothing in this chapter shall be construed to prevent the Council from exercising the right of the City to change the amount of any of the fees required by this section.
It shall be a term and condition of any license issued pursuant to this chapter that, as a part of the consideration supporting the issuance of such license and the City’s permission thereby to occupy and use the public right-of-way of the City, the licensee shall assume the following obligations:
1. The licensee shall indemnify, protect, save and hold harmless and defend the City from and against any and all liability, losses and damages to property, or bodily injury or death to any person, including payments made under worker’s compensation laws, arising out of or in any way connected with the installation, construction, reconstruction, repair, operation, disconnection or removal of the licensee’s licensed communications system. The licensee shall pay all reasonable expenses incurred by the City in defending itself with regard to any of the aforementioned claims, including all out-of-pocket expenses such as attorney’s fees and the value of any services rendered by the City legal department or any other officers or employees of the City. If any litigation on account of any such claims shall be commenced against the City and upon receipt by the licensee of written notice of such litigation from the City, the licensee shall defend the same at its own cost and expense. The record of any judgment rendered against the City on account of such claims shall be conclusive as against the licensee and shall entitle the City to recover the full amount thereof with interest and costs and attorney’s fees incurred by the City. The right of action therefor shall accrue to the City as soon as judgment shall have been rendered. The City shall fully cooperate with the licensee’s defense of any such claim or action.
2. Immediately upon issuance of the required license, the licensee shall purchase such general liability insurance as is required by the City Manager in conformity with such written standards relative to the amount of insurance coverage and deductible, the type of insurance policy and the qualifications of the insurer as shall be promulgated, and as may be amended from time to time, by the City Manager with the approval of the City legal department. The licensee shall maintain such insurance coverage for as long as the licensed communications system remains in place within the public right-of-way. The City shall be named as an additional insured on the insurance policy, and the policy shall provide on its face that it may not be cancelled except after at least thirty days’ written notice to the City. Immediately upon issuance of the required license, the licensee shall file with the City Manager a certificate of insurance which clearly discloses on its face coverage in conformity with all of the foregoing requirements, and if requested by the City Manager, the licensee shall additionally submit a certified copy of the policy.
3. Immediately upon issuance of the required license, the licensee shall file with the City Manager such bond as is required by the City Manager in conformity with such written standards relative to the amount of the bond and the qualifications of the surety as shall be promulgated, and as may be amended from time to time, by the City Manager with the approval of the City legal department. The purpose for such bond shall be to protect the City from any and all damages and costs suffered or incurred by the City from any failure by licensee to restore all public right-of-way and other public property affected by the installation, construction, reconstruction, repair, operation or removal of the licensed communications system to its proper condition in accordance with City standards. The bond provided hereunder shall be in lieu of the deposit required for a street excavation permit under Section 135.09.
Any person who fails to secure the license required under this chapter or any licensee who fails to comply with the requirements of this chapter or with any other applicable legal requirements shall, upon notification of such violation by the City Manager, immediately act either to abate the violation or to cause the licensee’s communications system either to be removed or to be disconnected and rendered inoperative. The City reserves the right either to remove or to disconnect and render inoperative any communications system used or maintained contrary to the provisions of this chapter.
The licensee shall not transfer or assign all or any portion of its interest in any license granted pursuant to this chapter without prior written authorization of the City Manager, which authorization shall not be unreasonably withheld, conditioned, delayed or denied. For purposes of this section, a merger or corporate reorganization shall not be deemed a transfer or assignment.
1. The City Manager shall promptly send by certified mail with return receipt requested a written notice advising each prospective licensee or licensee of action by the City Manager in granting or denying an application for a license.
2. Within three (3) business days after receipt of any such notice from the City Manager, an aggrieved prospective licensee or licensee shall have the right to a hearing before the Council by filing a written appeal with the City Manager specifying the reasons therefor. At least ten (10) days prior to the date of the Council hearing, the City Manager shall send written notice of same to the appellant by certified mail with return receipt requested. At the Council hearing, the appellant may be represented by legal counsel, may call witnesses and present evidence on his or her behalf, and may cross-examine witnesses.
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