A. Administrator's Responsibilities: The Administrator is responsible for enforcing and administering this chapter, and the Administrator is authorized to give any notice required by law or under any master permit, including, by way of example and not limitation, a notice required under 47 USC section 546. The Administrator is also authorized to seek information from any communications system operator, and to take all other actions necessary or appropriate to the administration of this chapter or any master permit. Master permits may be denied, issued or revoked only by the City Council. General administration of the master permit for the City is through the Office of the Administrator. However, the Administrator may delegate this authority and responsibility to other agents of the City. All questions of application, interpretation, conflict or ambiguity arising out of or in connection with a master permit may be determined through communications with the Administrator, except where otherwise specifically stated.
B. Minimum Contents Of Every Master Permit Or Right-Of-Way Permit: In addition to satisfying the other applicable requirements of this chapter, every master permit or right-of-way permit for a communications system shall contain the following provisions:
1. The master permit or right-of-way permit shall provide that neither the granting of any master permit or right-of-way permit, or any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the City as may exist at the time the master permit or license is issued or thereafter be obtained.
2. The master permit or right-of-way permit shall only authorize occupancy of the right-of-way to provide the services and for the purposes described in the master permit or license.
3. A master permit or right-of-way permit shall be a privilege that is held in the public trust and personal to the original grantee or permit holder. The master permit or right-of-way permit shall ensure that no transfer of the master permit or license may occur, directly or indirectly, without the prior consent of the City.
4. The master permit or license shall contain appropriate provisions for enforcement, and protection of the public, consistent with the other provisions of this chapter.
5. The master permit or license shall be for a specified term, set forth in the master permit or license. A master permit issued under this chapter shall be for a term of no longer than five (5) years, unless the City Council determines that a longer period would be in the City's interest. A right-of-way permit issued under this chapter shall be for a term of no longer than one year.
C. Penalties: Any person found to have occupied or carried out activities in the public rights-of-way without first having obtained or having in effect a valid master permit, license, or right-of-way permit as required by this chapter shall be guilty of a misdemeanor and shall be punished by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment not exceeding ninety (90) days or by both such fine and imprisonment. Each day that any such occupancy or activity shall continue in violation of this chapter shall constitute a separate offense.
D. Revocation, Reduction Of Term, Or Forfeiture Of Master Permit Or Right-Of-Way Permit:
1. Revocation Of Permits: A master permit or right-of-way permit may be revoked for violation of any terms and conditions of the master permit or other City ordinances, resolutions or policy including but not limited to the following:
a. Construction or operation in the public rights-of-way of the City or on City property in a manner in violation of a master permit or right-of-way permit;
b. Construction or operation at an unauthorized location in the public rights-of-way of the City or on City property;
c. Misrepresentation by or on behalf of the operator in any material respect in any application or written statements or documents to the City on which the City relies in making the decision to grant, review, or amend the master permit or right- of-way permit;
d. Abandonment of telecommunications facilities in the public rights-of-way or on City property;
e. Failure to relocate or remove facilities as required by this chapter, master permit, or right-of-way permit;
f. Failure to pay taxes, compensation, fees, or costs when and as due the City under this chapter;
g. Insolvency or bankruptcy of the operator; or
h. Violation of any material provision of this chapter or master permit which is not timely cured on notice to the operator by the City.
2. Written Notice: If the City believes that grounds exist for revocation of the master permit, the operator shall be given written notice of the apparent violation or noncompliance, providing a short and concise statement of the grounds for revocation. The notice shall provide the operator a reasonable period of time not exceeding thirty (30) days to furnish evidence:
a. That corrective action has been or is being actively and expeditiously pursued to remedy the violation or noncompliance;
b. That rebuts the alleged violation or noncompliance; or
c. That it would be in the public interest to impose some penalty or sanction less than revocation.
3. Administrator Actions: If the Administrator determines that the operator has failed to comply with the master permit, the Administrator shall enter a written order of violation and impose sanctions, including revocation of the master permit, a requirement for curative actions, and/or a fine not to exceed five thousand dollars ($5,000.00). The decision of the Administrator shall be based upon the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:
a. Whether the misconduct was egregious;
b. Whether substantial harm resulted;
c. Whether the violation was intentional;
d. Whether there is a history of prior violations of the same or other requirements;
e. Whether there is a history of overall compliance; and
f. Whether the violation was voluntarily disclosed, admitted or cured; provided, that no opportunity for cure is allowed for fraud, which shall be deemed incurable.
4. Appeals:
a. The operator may appeal any decision of the Administrator to the hearing examiner by filing a written notice of appeal with the City Clerk within ten (10) calendar days of the date of issuance of the Administrator's decision. The notice of appeal must include a copy of the Administrator's decision and a complete record originally submitted to the Administrator by the operator. The City Clerk shall forward the appeal and the record to the hearing examiner who shall set the matter for hearing as provided in the adopted rules for hearing examiner appeals.
b. The hearing examiner shall consider the record before the Administrator and written and oral argument based upon that record; provided, that the hearing examiner may, upon a showing of good cause, allow appellant to introduce additional evidence and the City shall be allowed to rebut such evidence. The operator shall have the burden of establishing that the Administrator's decision is not supported by a preponderance of the evidence.
c. The hearing examiner shall accord substantial weight to the Administrator's decision. The hearing examiner shall either affirm or reverse the Administrator's decision. The hearing examiner's decision shall be the final decision of the City.
5. Master Permit Forfeited: Notwithstanding the foregoing, the City may declare a master permit forfeited without opportunity to cure or the notice required by subsection D3 of this section where the operator fails to begin to exercise its rights under the master permit within a period specified in the master permit. However, an operator shall have the right to receive thirty (30) days' prior notice of intent to declare a master permit forfeited, and shall have the opportunity to show cause why the master permit should not be forfeited.
6. Automatic Termination: Notwithstanding the foregoing, a master permit or right-of-way permit will automatically terminate by force of law one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the operator, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the master permit or right-of-way permit may be reinstated within that 120-day period if: a) such assignment, receivership or trusteeship has been vacated; or b) such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the master permit or right-of- way permit and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the master permit or right-of-way permit. However, in the event of foreclosure or other judicial sale of any of the facilities, equipment or property of an operator, the City may revoke the master permit or right-of-way permit, following a public hearing before the City Council, by serving notice on the operator and the successful bidder at the sale, in which event the master permit or right-of- way permit and all rights and privileges of the master permit or right-of-way permit will be revoked and will terminate thirty (30) calendar days after serving such notice, unless: a) the City has approved the transfer of the master permit or right-of-way permit to the successful bidder; and b) the successful bidder has covenanted and agreed with the City to assume and be bound by the terms and conditions of the master permit or right-of-way permit and this chapter.
E. Sale, Lease, Assignment:
1. This master permit or license shall not be sold, leased, assigned, or otherwise alienated without the express consent of the City, and no rule of estoppel shall be invoked against the City in case the City shall assert the invalidity of any attempted transfer in violation of this section. The City agrees not to withhold consent where the operator demonstrates that the requested assignment is in the nature of a change of name or a change in the nature of a reorganization or merger of or with an entity controlled by, controlling, or under the common control of the operator, there being no other change in the resulting entity's ability to meet its master permit or license obligations.
2. The City reserves the right to invoke any or all provisions of this master permit or license upon the operator's successors or assigns, judgment creditors, or distributers of facilities or property used in enjoyment of privileges conferred herein, whether or not stated elsewhere, all without waiver of the right to withhold consent not expressly given of any such transfer and/or require a new master permit or license.
3. The operator shall not permit installations by others in the permitted areas, without written approval from the Administrator. Such approval shall not be in lieu of a master permit or license or other requirements of the City. Whether or not permitted, the operator shall remain responsible for all third party users permitted or allowed by the operator for compliance with the master permit or license. The intent of this provision is so third parties who might otherwise desire to use the operator's facilities are also required to comply with City requirements regarding master permit or right-of-way permit, as may apply.
F. Effect Of Termination Or Forfeiture: Upon termination or forfeiture of a license or master permit, whether by action of the City as provided above, or by passage of time, the operator shall be obligated to cease using the communications system for the purposes authorized by the master permit. The City may either take possession of some or all of the operator's facilities in the public rights-of-way or require the operator or its bonding company to remove some or all of the operator's facilities from the public rights-of-way and restore the public rights-of-way to its same, or better, condition. If the operator neglects, refuses, or fails to remove such facility, the City may remove the facility at the expense of the operator. The operator's obligation to remove shall survive the termination of the master permit or right-of-way permit for a period of two (2) years; provided, that this provision does not permit the City to take possession of, or require the operator to remove, any facilities that are used to provide another service for which the operator holds a valid master permit or right-of-way permit issued by the City.
G. Remedies Cumulative: All remedies under this chapter and any master permit or right-of-way permit are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a communications system operator of its obligations to comply with its master permit or license. Remedies may be used singly or in combination; in addition, the City may exercise any rights it has at law or equity. Recovery by the City of any amounts under insurance, the performance bond, the Security Fund or letter of credit, or otherwise, does not limit a communications system operator's duty to indemnify the City in any way; nor shall such recovery relieve a communications system operator of its obligations under a master permit, or right-of-way permit, limit the amounts owed to the City, or in any respect prevent the City from exercising any other right or remedy it may have.
H. Compliance With Laws: Each operator shall comply with all applicable laws heretofore and hereafter adopted or established during the entire term of its master permit or right-of-way permit.
I. Reservation Of Authority: The City may do all things that are necessary and convenient in the exercise of its jurisdiction under this chapter.
J. No Waiver - Performance Or Compliance: The failure of the City to insist on timely performance or compliance by any person holding a master permit or right-of-way permit shall not constitute a waiver of the City's right to later insist on timely performance or compliance by that person or any other person holding such a master permit or right-of-way permit.
K. Chapter Not A Contract: The City expressly reserves the right to amend this chapter and any master permit, right-of-way permit or license hereunder from time to time in the exercise of its lawful powers. The provisions of this chapter shall not be construed to create or to be a contract.
L. No Waiver - Enforcement: The failure of the City to enforce any provision of this chapter on any occasion shall not operate as a waiver or estoppel of this right to enforce any provision of this chapter on any other occasion, nor shall the failure to enforce any prior ordinance, law or contractual provision affecting communications facilities or communications system operators act as a waiver or estoppel against application of this chapter or any other provision of applicable law. (Ord. 2018-1031, 7-11-2018)