(A) Encroachment permit. A franchisee shall be subject to and comply with the additional or supplementary terms and conditions of Louisville Metro's "Encroachment on Rights-Of-Way Permit," as may be amended from time to time, with these terms and conditions being incorporated herein by reference and those terms and conditions of franchisee's encroachment permit deemed a condition of that franchisee's franchise.
(B) Additional facilities requirements; planned infrastructure. When a franchisee installs any new underground facilities, the franchisee shall, unless waived by Louisville Metro, simultaneously install conduit provided by Louisville Metro ("Louisville Metro Conduit"). Louisville Metro shall reimburse franchisee for any marginal or additional costs incurred by franchisee in connection with installation of the Louisville Metro Conduit. Louisville Metro Conduit shall be installed in accordance with Louisville Metro specifications and consistent with sound engineering practice. No franchise fee shall apply to any Louisville Metro Conduit.
(C) Removal of facilities. Upon expiration of a franchise, whether by lapse of time, by agreement between the franchisee and Louisville Metro, or by forfeiture thereof, the franchisee shall remove, at its sole cost, from the rights-of-way any and all of its facilities that are the subject of such franchise within a reasonable time after such expiration, not to exceed 90 days, and, it shall be the duty of the franchisee immediately upon such removal to restore the rights-of-way from which the facilities are removed to as good condition as the same were before the removal was effected and as required by Louisville Metro. Notwithstanding the foregoing, Louisville Metro may allow facilities to be left in place when Louisville Metro determines in its sole discretion that it is not practical or desirable to require removal.
(D) (1) Relocation of facilities. Whenever Louisville Metro shall in its exercise of the public interest request of the franchisee to relocate or reinstall any of its facilities, the franchisee shall, within ten days remove, relocate, or reinstall any such facilities as may be reasonably necessary to meet the request. The cost of such relocation, removal, or reinstallation of the facilities shall be the exclusive obligation of the franchisee. Upon request of any other person requesting relocation of facilities and holding a validly issued building or moving permit of Louisville Metro, a franchisee shall, within ten days, temporarily raise, lower, or relocate its wires or other facilities as may be required for the person to exercise the rights under the permit; provided, however, that the franchisee may require such permit holder to make payment to franchisee in advance for any expenses incurred by the franchisee to temporarily move its facilities pursuant to such person's request.
(2) Existing Facilities.
(a) Notwithstanding any provision of this chapter to the contrary, the provisions of § 116.03(D)(2) shall not apply to (i) Facilities located in or above the "Communication Worker Safety Zone" as such term is defined in the National Electrical Safety Code, or (ii) any electric supply Facilities wherever located. Make-Ready Costs that are to be paid by New Attacher include, without limitation, all costs and expenses to relocate, rearrange, transfer, or alter the attachments or Facilities of any Pre-Existing Attacher as may be necessary to accommodate New Attacher's attachment.
(b) Upon the Pole Owner's approval of an Attachment Application, New Attacher shall notify an affected Pre-Existing Attacher of the need to relocate, rearrange, transfer, or alter the attachments or Facilities of such Pre-Existing Attacher as may be necessary to accommodate New Attacher's attachment, specifying the work to be performed. Upon request from the New Attacher, a Pole Owner shall provide to the New Attacher any existing information the Pole Owner has with respect to all Existing Attachers' contact information.
(c) For purposes of this subsection, a relocation, rearrangement, transfer, or alteration that would cause or would reasonably be expected to cause a service outage to a Pre-Existing Attacher (taking into account the amount of available slack or tension on its lines and the impact on its Facilities during any relocation, including specifically the need for adherence to safety principles outlined under Applicable Standards) includes any work that requires the cutting, splicing, or other disconnection of a Pre-Existing Attacher's Facilities; work on Facilities that cross an interstate (i.e., a roadway that comprises the Dwight D. Eisenhower National System of Interstate and Defense Highways and other interstates as designated by the U.S. Secretary of Transportation) or a non-interstate roadway with access points limited to on-ramp and off-ramp locations and directional travel lanes usually separated by a physical barrier; work on Facilities that cross a railroad; work on Facilities that are located on a bridge; or work involving vertical risers, power supplies, double framed poles, or locations that would not allow access to Pre-Existing Attacher's Facilities for maintenance or installation after the work is complete.
(d) For purposes of this subsection, a Pre-Existing Attacher shall maintain a list of approved contractors, and shall make the list available to New Attachers within five (5) days of New Attacher's written request for such list. A Pre-Existing Attacher shall not unreasonably restrict the number of contractors it approves, or unreasonably refuse to approve a contractor a New Attacher requests to be approved. A New Attacher seeking approval of a contractor shall identify the contractor and request it be approved at the time it provides the notice required by § 116.03(D)(2)(b). The Pre-Existing Attacher shall approve or deny approval of the New Attacher's proposed contractor within twenty (20) days of such notice. If the Pre-Existing Attacher denies approval of the proposed contractor, it shall identify its reasons for doing so in writing. The fact that the Pre-Existing Attacher does not have a contract with the New Attacher's proposed contractor shall not, without more, be a reasonable basis for refusing to approve a New Attacher's proposed contractor.
(e) Upon notice from a New Attacher described in § 116.03(D)(2)(b), all Pre-Existing Attachers shall have thirty (30) days, running concurrently, from receipt of such notice either to (i) relocate, rearrange, transfer, or alter its Facilities, (ii) authorize the New Attacher to relocate, rearrange, transfer, or alter its Facilities using contractors approved by the Pre-Existing Attacher, or (iii) provide a written response stating that the work will cause a service outage and why, or stating any other reason why its Facilities cannot be reasonably relocated, rearranged, transferred, or altered. In the event any affected Pre-Existing Attacher does not perform such work or provide a written response within thirty (30) days, New Attacher may perform the work using contractors approved by the Pre-Existing Attacher.
(f) If Pre-Existing Attacher provides a written response stating that the work will cause a service outage or stating any other reason why its Facilities cannot be reasonably relocated, rearranged, transferred, or altered pursuant to § 116.03(D)(2)(c), the Pre-Existing Attacher shall have sixty (60) days, running concurrently, from receipt of the notice required by § 116.03(D)(2)(b) either to relocate, rearrange, transfer, or alter its Facilities, or otherwise coordinate with New Attacher to effectuate the relocation, rearrangement, transfer, or alteration of its Facilities. In the event any affected Pre-Existing Attacher does not perform such work or coordinate with New Attacher within sixty (60) days for such work to be completed, New Attacher may perform the work using contractors approved by the Pre-Existing Attacher, provided, however, that with respect to make-ready work on the Pre-Existing Attacher's Facilities that would cause or would reasonably be expected to cause a service outage, New Attacher shall provide a minimum of ten (10) days' prior notice identifying with specificity where and when it will perform such work.
(g) For large projects where the New Attacher will attach to poles involving a Pre-Existing Attacher where the average rate of new Attachment installations will be 100 poles or more per week, the New Attacher must notify all Pre-Existing Attachers affected by the project at the same time the New Attacher submits to a Pole Owner its first Attachment Application related to the project, and must reach mutual agreement with each Pre-Existing Attacher on a timeline for relocating, rearranging, transferring, or altering the Pre-Existing Attacher's Facilities. In the event the parties are unable to reach mutual agreement prior to the notice required by § 116.03(D)(2)(b), the procedures described in § 116.03(D)(2)(f) shall apply to such work, except that the Pre-Existing Attacher shall have one hundred and five (105) days, running concurrently, from receipt of the notice required by § 116.03(D)(2)(b) either to relocate, rearrange, transfer, or alter its Facilities.
(h) Within thirty (30) days of the completion of any relocation, rearrangement, transfer, or alteration performed by the New Attacher, New Attacher will send notice of the move and as-built reports to the Pre-Existing Attacher, the Pole Owner, and the owner(s) of any other structures on which such work was performed. The as-built reports will include a unique field label identifier, and an address or coordinates. Upon receipt of the as-built reports, the Pre-Existing Attacher and Pole Owner or other structure owner(s) may conduct an inspection within thirty (30) days. New Attacher will pay the actual, reasonable, and documented expenses incurred by the Pre-Existing Attacher and Pole Owner or structure owner(s) for the inspection. If any such relocation, rearrangement, transfer, or alteration results in the Facilities of the Pre-Existing Attacher on the pole or other structure failing to conform with Applicable Standards, the Pre-Existing Attacher will notify New Attacher within seven (7) days of the inspection. In the notice, the Pre-Existing Attacher will elect to either (i) perform the correction itself and bill the New Attacher for the actual, reasonable, and documented costs of the correction, or (ii) instruct the New Attacher to correct such conditions at New Attacher's expense, using contractors approved by the affected Pre-Existing Attacher. Any post-inspection corrections performed by the New Attacher must be completed within seven (7) days of such notification.
(i) Nothing in this subsection shall be construed to limit or preempt liability under applicable law for damages suffered by any party as a result of work performed pursuant to this subsection that does not conform with Applicable Standards.
(j) As a condition of exercising the ability to relocate, rearrange, transfer, or alter a Pre-Existing Attacher's Facilities pursuant to § 116.03(D)(2), New Attacher shall indemnify, defend, and hold harmless the affected Pre-Existing Attacher and the Pole Owner or other structure owner(s) on which such relocation, rearrangement transfer, or alteration takes place, the Affiliates of such Pre-Existing Attacher and Pole Owner or other owners, and the officers, directors, and employees of such Pre-Existing Attacher and Pole Owner or other owners and their Affiliates (each an "Indemnitee") from and against all third party damage, loss, claim, demand, suit, liability, penalty, or forfeiture of every kind and nature, including, but not limited to, costs and expenses of defending against the same, payment of any settlement or judgment therefor and reasonable attorney's fees that are actually and reasonably incurred by an Indemnitee by reason of any claim arising from such relocation, rearrangement, transfer, or alteration.
(k) In the event New Attacher fails to pay Pre-Existing Attacher's Make-Ready Costs, fails to correct non-compliant work according to the time frames specified in § 116.03(D)(2)(h), fails to compensate Pre-Existing Attacher for damage caused by New Attacher's work, or otherwise fails to meet its obligations to the Pre-Existing Attacher in this subsection, Pre-Existing Attacher shall have the right to refuse New Attacher's requests to relocate, rearrange, transfer, or alter the Pre-Existing Attacher's Facilities until such time as New Attacher complies with its obligations under this subsection.
(l) A Pre-Existing Attacher and New Attacher may mutually agree to modify any of the rights and obligations specified herein, and shall work in good faith to modify any time periods specified herein to account for unforeseen circumstances, including, but not limited to, weather events and high volumes of make-ready work.
(E) Franchisee responsible for costs. A franchisee shall be responsible for all reasonable costs incurred by Louisville Metro that are directly associated with the franchisee's erecting, installing, maintaining, operating, repairing, replacing, removing or restoring its facilities in the rights-of-way. A franchisee shall be responsible for its own costs incurred in removing or relocating its facilities when required by Louisville Metro due to Louisville Metro requirements relating to maintenance and use of the rights-of-way for Louisville Metro purposes.
(F) Insurance and bonds. During the term of any franchise, a franchisee shall obtain and maintain at its sole expense, all insurance and bonds required by this chapter. It is expressly understood that Louisville Metro does not in any way represent that the specified limits of liability or coverage or policy forms are sufficient or adequate to protect the interest or liabilities of franchisee.
(1) Franchisee shall file with the Director of Public Works and Assets (a) a franchise bond in the amount of $1,000,000 which shall be required to be in place for the entire term of the franchise, and (b) a performance bond in an amount to be determined by the Director of Public Works and Assets. In no event shall the amount of the performance bond required by Public Works and Assets exceed the reasonable costs of repairing the rights-of-way in the event of non-performance by the franchisee. The performance bond shall provide for the faithful performance of construction and installation of franchisee's system. Two years after demonstration of the completion of the construction of the system by franchisee to Public Works and Assets, Public Works and Assets shall release the performance bond.
(2) The performance bond shall indemnify Louisville Metro in its own right and as trustee, from any damages or losses arising out of the failure of franchisee to faithfully perform and satisfactorily complete construction of the system in accordance with this chapter.
(3) The failure of franchisee to comply with its obligations under this chapter or the franchise as determined by Louisville Metro shall entitle Louisville Metro to draw against either or both of franchisee's performance or franchise bonds.
(4) The rights reserved to Louisville Metro with respect to the performance and franchise bonds required hereunder are in addition to all other rights of Louisville Metro, whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such performance or franchise bonds shall affect any other rights Louisville Metro may have.
(5) Unless otherwise released by Louisville Metro, the performance or franchise bonds required hereunder shall not expire or be materially altered without 30 days written notice and without securing and delivering to Louisville Metro a substitute, renewal and replacement bond in conformance with this chapter. In the event Louisville Metro does draw monies against the performance bonds required hereunder, within ten days thereafter, franchisee shall pay such funds to the bonding company as necessary to bring said performance and/or franchise bonds back to the applicable principal, where it shall continue to be maintained. The performance and franchise bonds required hereunder shall contain the following endorsements: "It is hereby understood and agreed that this bond may not be reduced, altered or canceled by Franchisee or Surety without thirty (30) days written notice, by certified mail, to Louisville Metro. Such termination or cancellation shall have no effect on any liability incurred or accrued under this bond prior to the effective date of such termination or cancellation."
(6) Immediately upon the effective date of the resolution granting a franchise under this chapter, franchisee shall file with Louisville Metro the following proof of liability insurance issued by a company(ies) authorized to do business in the Commonwealth with an AM Best Rating of A- or better:
(a) General Liability Insurance, via an occurrence form, covering bodily injury, including death, personal injury and property damage, and including completed operations, contractual liability, independent contractors protective liability and personal injury liability protection. The minimum acceptable limit of liability amount is $5,000,000 per occurrence and aggregate under a combined single limit. This policy must include the Louisville/Jefferson County Metro Government, including its Mayor and Metro Council members, as additional insureds as respects all operations of the insured franchisee. This policy must cover Louisville Metro for damages resulting from any transmission over a System. Louisville Metro reserves the right to make reasonable increases in the required amount of insurance coverage herein at any time. Nothing herein is intended as a limitation on the extent of any legal liability of the franchisee.
(b) Automobile Liability, insuring all owned, non-owned and hired motor vehicles. The minimum coverage liability limit is $5,000,000 combined single limit for any one accident. The limit of liability may be subject to increase according to any applicable state or federal transportation regulations.
(c) Workers' Compensation (if applicable), insuring the employers' obligations under KRS Chapter 342 at statutory limits, and Employers' Liability, $100,000 each accident/$500,000 disease - policy limit/$100,000 disease - each employee.
(7) Franchisee shall maintain on file with Louisville Metro a certificate of insurance certifying the coverage required under this chapter, which certificate shall be subject to the approval of Louisville Metro as to the adequacy of the certificate and of the insurance certified under the requirements of this chapter. Louisville Metro may at its sole discretion require a certified copy of the insurance policy(s) required under this chapter, specifically endorsed to include all liability assumed by franchisee hereunder. Such policy(s) and certificate shall be identified on their face by the name of franchisee, and shall be submitted to Louisville Metro, in accordance with the terms and conditions of this chapter. Failure to maintain adequate insurance as required under this chapter shall be deemed a breach of the franchise.
(8) Louisville Metro reserves the right to make increases in the amount of insurance coverage referred to in this section at any time.
(9) The following clause shall be added to franchisee's (and subcontractors) Commercial General Liability Policies: "The Louisville/Jefferson County Metro Government, its elected and appointed officials, employees, agents and successors are added as an "additional insured" as respects operations of the Named Insured performed relative to the contract."
(G) Permits. Prior to performing any construction or installation work in the public rights-of-way, franchisee shall apply to Public Works and Assets for a permit, and shall include descriptive information about the specific location of any lines, facilities, boxes, or related equipment. All terms and conditions of the permit application shall apply and be adhered to.
(1) Franchisee shall furnish detailed plans of the work to be done within the rights-of-way and provide other such information as required by Louisville Metro.
(2) Franchisee shall coordinate any construction work within the rights-of-way with Public Works and Assets and shall begin construction work only after approval of Public Works and Assets.
(3) All permits issued by Louisville Metro shall be conspicuously displayed at all times at the indicated work site and shall be available for inspection by Louisville Metro personnel.
(H) Notification. Franchisee shall notify Public Works and Assets, in writing, at least 15 days prior to construction. Such written notification shall contain the location of the construction, the starting date and the estimated completion date.
(I) Standards. Any work required or performed pursuant to this chapter shall be done in accordance with federal, state and local law, and the National Electric Safety Code.
(1) In the event that franchisee leases space on the poles or in the conduits of an electric or other utility, franchisee shall abide by the construction and other requirements of that utility, and the granting of a franchise by Louisville Metro shall not be construed or interpreted in any way to alleviate franchisee's responsibilities and obligations to the pole or conduit owner.
(2) Franchisee, its contractors, sub-subcontractors and anyone directly or indirectly employed by franchisee shall conduct such operations so as to promote and preserve the public safety and general welfare of the citizens of Louisville Metro.
(3) All construction, installation or maintenance by franchisee shall be completed with diligence and with respect to all interests and rights of the public.
(J) Traffic. Franchisee's work in the rights-of-way shall be accomplished with a minimum of disruption and interference to the free flow of vehicular and pedestrian traffic on the rights-of-way or public land.
(1) Franchisee shall maintain lanes of vehicular traffic in each direction at all times during construction, installation or maintenance activity.
(2) Traffic control devices to protect and control pedestrian and vehicular traffic in any construction, maintenance or installation areas may be prescribed by Louisville Metro in accordance with the Manual on Uniform Traffic Control Devices.
(K) Delay. Improvements to Louisville Metro rights-of-way conducted by Louisville Metro or its contractors shall not be delayed by any franchisee work authorized by this chapter.
(L) Special exceptions. Louisville Metro may grant a special exception to the requirements of this chapter if a franchisee, upon application, demonstrates with written evidence that:
(1) The exception will not create any threat to the public health, safety or welfare;
(2) The increased economic burden and the potential adverse impact on franchisee's construction schedule resulting from the strict enforcement of the requirement would actually or effectively prohibits the ability of franchisee to provide Communications Service in Louisville Metro; and
(3) The requirement unreasonably discriminates against franchisee in favor of another comparable Communications Service provider. Any special exceptions shall be granted in a non-discriminatory manner.
(M) Inspections. All construction, installation and operation of franchisee's system in the rights-of-way are subject to inspection by Public Works and Assets.
(N) Repair of sunken pavement over excavation. In case the pavement or the surface of the rights-of-way over any excavation should become depressed or broken at any time within five years after the excavation has been completed and before resurfacing of the rights-of-way, natural wear of the surface excepted, franchisee shall, upon written notice from Public Works and Assets, immediately proceed to inspect the depressed or broken area over the excavation to ascertain the cause of the failure. Franchisee shall make repairs to the installation or backfill and have the pavement restored as specified by Public Works and Assets, within such time period as may be specified by Public Works and Assets. If the pavement is not restored as specified by Public Works and Assets within the time period specified by Public Works and Assets, and unless delayed by a strike or conditions beyond franchisee's control, Louisville Metro may cause the work to be done after giving franchisee 24 hours final notice. The cost thereof, including, but not limited to, any inspection costs and administrative overhead incurred by Louisville Metro, shall be assessed against franchisee.
(O) In the event that the use of any part of the system is discontinued for any reason by any franchisee for a continuous period of 12 months, or in the event such system or facility has been installed in rights-of-way without complying with requirements of this chapter, or the rights granted hereunder have been terminated, cancelled or have expired, the franchisee shall promptly remove from the rights-of-way all such facilities of such system, other than any which Louisville Metro may permit to be abandoned in place. In the event of such removal, the franchisee shall promptly restore the rights-of-way from which such facilities have been removed to a condition satisfactory to Louisville Metro. Any facilities of a franchisee to be abandoned in place, shall be abandoned in such manner as Louisville Metro may prescribe. Upon a permanent abandonment of the facilities of a franchisee in place, the franchisee shall submit to Louisville Metro an instrument to be approved by Louisville Metro, transferring to Louisville Metro the ownership of such facilities.
(P) During any phase of construction, installation, maintenance, or repair of the system, the franchisee shall use materials of good and durable quality. All such work shall be performed in a safe, thorough and reliable manner and in compliance with Louisville Metro's Public Access and Utility Policy, as amended.
(Lou. Metro Ord. No. 77-2018, approved 5-29-2018; Am. Lou. Metro Ord. No. 28-2019, approved 3-8-2019)