(a) Rights Conveyed. Consent granted to or initially presumed of a service provider to occupy or use the right-of-way under Section 1022.02
:
(1) Shall be limited to a grant to occupy or use the specific right-of-way and defined portions thereof including the specific system or facilities and location along the right-of-way;
(2) Shall not confer any exclusive right, privilege, license or franchise to occupy or use the right-of-way of the City to operate a system for delivery of services or any other purposes; and
(3) Shall not convey any right, title or interest in the right-of-way, but shall be deemed consent only to occupy or use the right-of-way for the limited purposes granted by the consent. Further, no consent shall be construed as any warranty of title.
(b) Nondiscrimination. A public service provider providing service to the public in the City 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 public service provider's services; provided, however, that nothing in this division (b) shall prohibit a public service provider from making any reasonable classifications among differently-situated customers.
(c) Maintenance of Facilities, Landscaping and Other Aesthetic Requirements. Each service provider shall maintain its system or facilities in good and safe condition and in a manner that complies with all applicable Federal, State and local requirements. A service provider with a construction permit that includes a landscaping, screening and/or other aesthetic requirement in connection with the placement of any structure or item above the ground in the right-of-way, shall maintain the landscaping, screening and/or other aesthetic requirement, on a continuing basis, in the manner specified in the construction permit or other manner as approved in writing by the City Engineer.
(d) Safety Procedures. A service provider 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 public right-of-way or property.
(e) Interference with the Public Rights-of-Way. No service provider may locate or maintain its facilities so as to unreasonably interfere with the use of the public right-of-way by the City, by the general public or by other persons authorized to use or be present in or upon the public right-of-way. All such facilities shall be moved by the service provider, temporarily or permanently, as determined by the City Engineer.
(f) Damage to Public and Private Property. No service provider nor any person acting on the service provider's behalf shall take any action or permit any action to be done which may impair or damage any City property, public right-of-way, other ways or other public or private property located in, on or adjacent thereto.
(g) Restoration of Public Right-of-Way, Other Ways and City Property.
(1) When a service provider, or any person acting on its behalf, does any work in or affecting any public right-of-way, 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 Engineer'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 service provider shall temporarily restore the affected ways or property as directed by the City Engineer. Such temporary restoration shall be at the service provider's sole expense and the service provider shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
(h) Duty to Provide Information.
(1) Within ten days of a written request from the City Engineer each service provider shall furnish the City with documentation sufficient to show that the service provider has complied with all requirements of this chapter.
(2) In addition, within ten days of a written request from the City Engineer, each service provider shall make available for inspection by the City at reasonable times all books, records, maps and other documents, maintained by the service provider with respect to its facilities in the public right-of-way.
(i) Leased Capacity. A service provider shall have the right, without prior City approval, to lease capacity or bandwidth to an unaffiliated service provider, provided that when a lessee has physical access to the leased facilities:
(1) The service provider shall notify the City of the lease agreement within thirty days of such lease agreement; and
(2) The lessee has complied, to the extent applicable, with the requirements of this chapter.
(j) Assignments or Transfers of Consent. Consent to occupy or use the public right- of-way may be, directly or indirectly, transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the service provider, by operation of law or otherwise, without consent of the City, so long as:
(1) The City is notified of the proposed transfer on or before the date of transfer; and
(2) The transferee fully complies with this chapter within sixty days of the transfer, including, but not limited to:
B. Any other information reasonably required by the City.
(k) Transactions Affecting Control of Consent. Any transactions that singularly or collectively result in a change of twenty-five percent or more of the ownership or ultimate working control of a service provider, of the ownership or working control of the service provider's facility, or of control of the capacity or bandwidth of the service provider's system, Facilities or substantial parts thereof, shall be considered an assignment or transfer pursuant to this division (k). Transactions between affiliated entities are not exempt from this division (k).
(l) Revocation of Consent. Consent granted by the City to occupy or use the public right-of-way of the City may be revoked for any one of the following reasons unless revocation is clearly prohibited by State or Federal law:
(1) Construction, reconstruction, installation, location, operation or excavation at an unauthorized location.
(2) Construction, reconstruction, installation, location, operation or excavation in violation of City safety and/or construction requirements.
(3) Material misrepresentation or lack of candor by or on behalf of a service provider in any permit application or registration required by the City.
(4) Failure to relocate or remove facilities, or failure to restore the public right-of-way, as required by this chapter.
(5) Failure to pay fees, costs, taxes or compensation when and as due the City.
(6) Insolvency or bankruptcy of the service provider.
(7) Violation of material provisions of this chapter.
(m) Notice and Duty to Cure. In the event that the City Engineer believes that grounds exist for revocation of consent to occupy or use the public right-of-way, he shall give the service provider 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 service provider 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.
(n) Identification of Facilities. When the City determines that identification of facilities is necessary to begin planning for right-of-way improvement projects, service providers, upon receipt of notice by the City, are required to use reasonable efforts to field identify their facilities. In identifying facilities, customary industry standards must be adhered to and markings must identify the service provider responsible for the facilities. All markings must also be clearly readable from the ground and include the service provider's name, logo and identification numbering or tracking. Advertising is not permitted and all marking colors shall be those approved by the City.
(o) Waiver of Requirements. It is within the City Engineer's reasonable discretion to waive a portion or portions of this chapter where such requirements, in the City Engineer's judgment, are not necessary or appropriate to protect the City's interests and the purposes and intent of this chapter.
(p) New or Additional Facilities When the Right-of-Way is Full. The City shall have the power to prohibit or limit the placement of new or additional facilities within the public right- of-way if the right-of-way is full. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the right-of-way, but shall be guided primarily by considerations of the public health, safety and welfare, the condition of the right-of-way, the time of year with respect to essential utilities, the protection of existing facilities in the right-of-way, future City and county plans, if applicable, for public improvements, development projects which have been determined to be in the public interest and nondiscriminatory and competitively neutral treatment among service providers.
(Ord. 2017-O-04, passed 4-11-17.)