(a) Nonexclusive Permit. No use permit granted under Section 1016.03 shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the City for delivery of services or any other purposes.
(b) Rights Permitted. No use permit granted under this section shall convey any right, title or interest in the public ways, but shall be deemed a permit only to use and occupy the public ways for the limited purposes and term stated in the grant. Further, no permit shall be construed as any warranty of title.
(c) Public Way Route. An outside services use permit granted under Section 1016.03(a)(1) shall be limited to a grant to occupy the specific public ways and defined portions thereof. An inside services use permit granted under Section 1016.03(a)(2) shall be limited to the specific geographic area of the City to be served by the permit holder, and the specific public ways and defined portions thereof necessary to provide service to such areas.
(d) Location of Facilities. All facilities shall be constructed, reconstructed, installed and located in accordance with the following terms and conditions:
(1) Facilities shall be installed within an existing underground duct or conduit whenever excess capacity exists within such facility.
(2) A permit holder with permission to install overhead facilities shall install its 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, telecommunications facilities or other facilities are located underground within a public way of the City, a permit holder with permission to occupy the same public way must also locate its facilities underground.
(4) Whenever any new or existing electric utilities, cable facilities, telecommunications facilities or other facilities are located or relocated underground within a public way of the City, a permit holder 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 expiration date of the permit of the service provider initiating the location or relocation of such facilities underground. Absent extraordinary circumstances or undue hardship as determined by the City Manager, such relocation shall be made concurrently to minimize the disruption of the public ways and shall be carried out at the permit holder's expense.
(5) Except for overhead facilities as provided herein, no facilities shall be located above ground in a public way.
(6) The City reserves the right to require a permit holder to provide excess capacity in the public way at the time of construction, reconstruction, installation, location or relocation of facilities.
(e) Construction Permits. Prior to commencing any construction, reconstruction, installation, maintenance or repair of facilities or any excavation of the public ways, all use permit holders are required to obtain construction permits from the City Manager for facilities as required in Section 1016.05, provided that any service provider who began constructing, reconstructing, installing, maintaining or repairing facilities or any excavation of public ways prior to the effective date of this chapter shall have ninety days to apply for a construction permit.
(f) Compensation to the City. The City reserves the right in the future to require reasonable compensation from existing and future service providers for the use of its public ways by an ordinance of City Council.
(g) Service Within the City. An outside services use permit holder may be permitted to offer or provide services to persons or areas within the City upon submitting a new application for approval of an inside services use permit.
(h) Nondiscrimination. An inside services use permit holder shall make its services available to any customer within the designated service area who shall request such service, without discrimination as to the terms, conditions, rates or charges for the permit holder's services, provided, however, that nothing in this section shall prohibit a permit holder from making any reasonable classifications among differently-situated customers.
(i) Service to the City; Schools; Libraries; Health Care Providers. An inside services use permit holder providing telecommunications or cable services shall make its telecommunications or cable services available to the City, schools, libraries and health care providers at its most favorable rate.
(j) Interference With the Public Ways. No use permit holder may locate or maintain its 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 permit holder, temporarily or permanently, as determined by the City Manager.
(k) Damage to Property. No use permit holder, nor any person acting on the permit holder's behalf, shall take any action or permit any action to be done which may impair or damage any City property, public ways, other ways or other property located in, on or adjacent thereto.
(l) Notice of Work. Except as provided in subsection (m) hereof, no use permit holder, nor any person acting on the permit holder's behalf, shall commence any nonemergency work in or about the public ways of the City, or other ways, without ten working days advance notice to the City and obtaining a construction permit pursuant to Section 1016.05.
(m) Repair or Emergency Work. In the event of the need for any unexpected repair or emergency work, a use permit holder may commence such repair and emergency response work as required under the circumstances, provided the use permit holder shall notify the City as promptly as possible before such repair or emergency work is commenced, or within twenty-four hours after commencing such repair or emergency work if advance notice is not practicable. The permit holder shall apply for a construction permit within five days of commencing such repair or emergency work.
(n) Maintenance of Facilities. Each permit holder shall maintain its facilities in good and safe condition and in a manner that complies with all applicable Federal, State and local requirements.
(o) Relocation or Removal of Facilities. Within thirty days following written notice from the City, a use permit holder shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any facilities within the public ways whenever the City shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
(1) The construction, reconstruction, repair, maintenance or installation of any City or other public improvement in or upon the public ways; or
(2) The operations of the City or other governmental entity in or upon the public ways.
(p) Removal of Unauthorized Facilities. Within thirty days following written notice from the City, any permit holder, service provider or other person that owns, controls or maintains any unauthorized 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 or shall arrange to sell said facilities or appurtenances to the City. After the thirty days have expired, the City may remove the facilities or appurtenances from the public ways at the other party's expense. A system or facility is unauthorized and subject to removal in the following circumstances:
(1) Upon termination of the permit holder's use permit;
(2) Upon abandonment of a facility within the public ways of the City;
(3) If the system or facility was constructed, reconstructed, installed, operated, located or maintained without the prior grant of a use permit;
(4) If the system or facility was constructed, reconstructed, installed, operated, located or maintained, or any excavation of a public way was performed, without prior issuance of a required construction permit, except as otherwise provided by this chapter; or
(5) If the system or facility was constructed, reconstructed, installed, operated, located or maintained, or any excavation of a public way was performed, at a location not permitted by the permit holder's use permit or construction permit; provided that any service provider who constructed, reconstructed, installed, operated, located or maintained or began constructing, reconstructing, installing, locating, operating or maintaining the system or facility, or began any excavation of a public way, prior to the effective date of this chapter shall have ninety days from the effective date of this chapter, to apply for the appropriate permit.
(q) Emergency Removal or Relocation of Facilities. The City retains the right and privilege to cut or move any facilities, or stop work on any construction, reconstruction, installation, operation or excavation, located within the public ways of the City, as the City may determine to be necessary, appropriate or useful in response to any need to protect the public health, safety or welfare.
(r) Damage to Permit Holder's Facilities. Unless directly and proximately caused by the willful, intentional or malicious acts of the City, the City shall not be liable for any damage to or loss of any 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.
(s) Restoration of Public Ways, Other Ways and City Property.
(1) When a permit holder, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, it shall, after the work is completed and at its own expense, promptly remove any obstructions therefrom and restore such ways or property, within ten to thirty 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 do not permit the complete restoration required by this section, the permit holder shall temporarily restore the affected ways or property. Such temporary restoration shall be at the permit holder's sole expense and the permit holder shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
(3) A permit holder 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 ways or property.
(t) Facilities Maps. Each permit holder shall provide the City with an accurate map or maps on a medium and in a format compatible with the City's computer system, both hardware and software, and certifying the location of all facilities within the public ways. Each permit holder shall provide updated maps and digital information annually at the time of registration.
(u) Duty to Provide Information.
(1) Within ten days of a written request from the City Manager, each permit holder shall furnish the City with the following information:
A. Information sufficient to demonstrate that the permit holder has complied with all requirements of this chapter.
B. That all Municipal sales, message and/or utility taxes due the City in connection with the services and facilities provided by the permit holder have been properly collected and paid by the permit holder.
C. All books, records, maps and other documents, maintained by the permit holder with respect to its facilities within the public ways shall be made available for inspection by the City at reasonable times and intervals.
(v) Leased Capacity. A permit holder shall have the right, without prior City approval, to offer or provide capacity or bandwidth to its customers, provided that:
(1) The permit holder shall furnish the City with a copy of any such lease or agreement; and
(2) The customer or lessee has complied, to the extent applicable, with the requirements of this chapter.
(w) Permit Holder Insurance. As a condition of the use permit, a use permit holder must secure and maintain the following liability insurance policies insuring both the permit holder and the City, and its elected and appointed officers, officials, agents and employees as additional insureds:
(1) Comprehensive general liability insurance with limits not less than:
A. Five million dollars ($5,000,000) for bodily injury or death to each person;
B. Five million dollars ($5,000,000) for property damage resulting from any one accident; and
C. Five million dollars ($5,000,000) for all other types of liability.
(2) Automobile liability for owned, non-owned and hired vehicles with a limit of three million dollars ($3,000,000) for each person and three million dollars ($3,000,000) for each accident.
(3) Worker's compensation within statutory limits and employer's liability insurance with limits of not less than one million dollars ($1,000,000).
(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).
The liability insurance policies required by this subsection shall be maintained by the permit holder throughout the term of a use permit, and such other period of time during which the permit holder is operating without a permit hereunder, or is engaged in the removal of its facilities. Each such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until ninety days after receipt by the City, by registered mail, of a written notice addressed to the City Manager of such intent to cancel or not to renew."
Within sixty days after receipt by the City of said notice, and in no event later than thirty days prior to said cancellation, the permit holder shall obtain and furnish to the City replacement insurance policies meeting the requirements of this subsection.
(x) General Indemnification. Each permit application shall include, to the extent permitted by law, the permit holder'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 expenses, including reasonable attorney's 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 permit holder or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, reconstruction, installation, operation, maintenance, repair or removal of its facilities, and in providing or offering services over the facilities or system, 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.
(y) Performance and Construction Surety. Before a use permit granted pursuant to this chapter is effective, and as necessary thereafter, the permit holder 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.
(z) Security Fund. Each permit holder shall establish a permanent security fund with the City by depositing the amount of fifty thousand dollars ($50,000) with the City in cash, an unconditional letter of credit, or other instrument acceptable to the City, which fund shall be maintained at the sole expense of the permit holder so long as any of the permit holder's facilities are located within the public ways of the City.
(1) The fund shall serve as security for the full and complete performance of this chapter, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the permit holder to comply with the codes, ordinances, rules, regulations or permits of the City.
(2) Before any sums are withdrawn from the security fund, the City shall give written notice to the permit holder:
A. Describing the act, default or failure to be remedied, or the damages, cost or expenses which the City has incurred by reason of the permit holder's act or default;
B. Providing a reasonable opportunity for the permit holder to first remedy the existing or ongoing default or failure, if applicable;
C. Providing a reasonable opportunity for the permit holder to pay any monies due the City before the City withdraws the amount thereof from the security fund, if applicable; and
D. That the permit holder will be given an opportunity to review the act, default or failure described in the notice with the City Manager.
(3) Permit holders shall replenish the security fund within fourteen days after written notice from the City that there is a deficiency in the amount of the fund.
(aa) Construction and Completion Bond. A construction bond written by a corporate surety acceptable to the City equal to at least 100 percent of the estimated cost of constructing, reconstructing, installing or repairing the permit holder's facilities or excavation within the public ways of the City shall be deposited before construction is commenced.
(1) The construction bond shall remain in force until eighteen months after substantial completion of the work, as determined by the City Manager, 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 record drawings, in both written and digital format, after completion of the work as required by this chapter; and
F. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.
(bb) Coordination of Construction Activities. All permit holders are required to cooperate with the City, including its service and safety forces, and with each other. All construction, reconstruction, installation, excavation, locations, activities and schedules shall be coordinated, as ordered by the City Manager, to minimize public inconvenience, disruption or damages.
(cc) Assignment or Transfer of Permits. Ownership or control of a use permit may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the permit holder, by operation of law or otherwise, without the prior consent of the City Council as expressed by ordinance, 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 months after the initial grant of the permit.
(2) Absent extraordinary and unforeseeable circumstances, no grant, system or integral part of a system shall be assigned or transferred before construction of the facilities has been completed.
(3) The permit holder and the proposed assignee or transferee of the grant shall provide and certify the following information to the City not less than 120 days prior to the proposed date of transfer:
A. Complete information setting forth the nature, terms and condition of the proposed transfer or assignment;
B. All information required of a use permit applicant pursuant to Section 1016.03 with respect to the proposed transferee or assignee; and
C. Any other information reasonably required by the City Manager.
(4) Any transfer or assignment of a use permit without prior approval of the City under this subsection shall be void and is cause for revocation of the grant.
(dd) Transactions Affecting Control of Permit. Any transactions which singularly or collectively result in a change of ten percent or more of the ownership or working control of a use permit holder, of the ownership or working control of the permit holder or of a facility, or of control of the capacity or bandwidth of the permit holder's system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring City approval pursuant to subsection (cc) hereof. Transactions between affiliated entities are not exempt from City approval.
(ee) Revocation or Termination of Permit. A use permit granted by the City to use or occupy public ways of the City may be revoked for any one of the following reasons:
(1) Construction, reconstruction, installation, location, operation or excavation in the City or in the public ways of the City without a use permit.
(2) Construction, reconstruction, installation, location, operation or excavation at an unauthorized location.
(3) Construction, reconstruction, installation, location, operation or excavation in violation of City safety and/or construction requirements.
(4) Unauthorized substantial transfer of control of the permit holder.
(5) Misrepresentation or lack of candor by or on behalf of a permit holder in any permit application or registration required by the City.
(6) Abandonment of facilities in the public ways.
(7) Failure to relocate or remove facilities, or failure to restore public ways, as required in this chapter.
(8) Failure to pay taxes, compensation, fees or costs when and as due the City.
(9) Insolvency or bankruptcy of the permit holder.
(10) Violation of material provisions of this chapter.
(ff) Notice and Duty to Cure. In the event that the City Manager believes that grounds exist for revocation of a use permit, he or she shall give the permit holder 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 permit holder a reasonable period of time not exceeding thirty 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 it would be in the public interest to impose some penalty or sanction less than revocation.
(gg) Hearing. In the event that a permit holder fails to provide evidence reasonably satisfactory to the City Manager as provided in subsection (ff) hereof, the City Manager shall refer the apparent violation or noncompliance to the Utilities Committee of City Council. The Utilities Committee shall provide the permit holder with notice and a reasonable opportunity to be heard concerning the matter.
(hh) Standards for Revocation or Lesser Sanctions. If persuaded that the permit holder has violated or failed to comply with material provisions of this chapter, the Utilities Committee of City Council shall determine whether to revoke a use permit, 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 violations 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.
The Utilities Committee's decision shall be final.
(Ord. 96-149. Passed 5-7-97.)