(A) Encroachment permit. A franchisee shall be subject to and comply with the additional or supplementary terms and conditions of the city's "encroachment on rights-of-way permit," as may be amended from time to time, which is incorporated herein by reference and such provisions and the provisions of said encroachment permit shall be deemed a condition of any franchise.
(B) Additional facilities requirements; planned infrastructure. When a franchisee installs any new underground facilities, the franchisee shall, unless waived by the city, simultaneously install conduit provided by the city ("city conduit"). The city conduit shall be installed in accordance with city specifications. No communications franchise fee shall apply to any city conduit.
(C) Removal of facilities. Upon expiration of a franchise, whether by lapse of time, by agreement between the franchisee and the city, 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 the city. Notwithstanding the foregoing, the city may allow facilities to be left in place when the city determines in its sole discretion that it is not practical or desirable to require removal.
(D) Relocation of facilities. Whenever the city shall in its exercise of the public interest request of the franchisee the relocation or reinstallation of any of its facilities, the franchisee shall forthwith remove, relocate, or reinstall any such property as may be reasonably necessary to meet the request and the cost of such relocation, removal, or reinstallation of the facilities shall be the exclusive obligation of such franchisee. A franchisee shall, upon request of any other person requesting relocation of facilities and holding a validly issued building or moving permit of the city, temporarily raise, lower, or relocate its wires or other facilities as may be required for the person to exercise the rights under the permit within 48 hours prior to the date upon which said person intends to exercise its rights under said permit; provided, however, that the franchisee may require such permit holder to make payment in advance for any expenses incurred by said franchisee pursuant to such person's request.
(E) Franchisee responsible for costs. A franchisee shall be responsible for all reasonable costs incurred by the city 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 the city due to city requirements relating to maintenance and use of the rights-of-way for city 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. Nothing contained in this chapter shall limit a franchisee's liability to the city to the limits of insurance certified or carried.
(1) All persons submitting an application for a franchise in accordance herewith shall file with their applications performance bonds with a surety company or trust company or companies as surety or sureties solely for the protection of the city in an amount determined by the City Commission to be reasonable for the proposed scope of the system to be effective. The determination of the amount of the performance bond required shall be made in a nondiscriminatory manner. Said performance bond shall provide for the faithful performance of any and all provisions of this chapter and franchisee's franchise, including but not limited to construction and installation, maintenance, relocation, communications franchise fee payment, and/or removal of any abandoned facilities. Upon demonstration of the completion of the construction of the system by franchisee to the city, the city shall reduce the amount of the performance bond by 75%.
(2) Said performance bond shall indemnify the city 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 and any agreement and ordinance in connection herewith, including, but not limited to, the cost of removal of any construction.
(3) The failure of franchisee to comply with its obligations under this chapter or the franchise as determined by the city shall entitle the city to draw against said performance bond.
(4) The rights reserved to the city with respect to the performance bonds required hereunder are in addition to all other rights of the city, whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such performance bond shall affect any other rights the city may have.
(5) The performance bonds required hereunder shall not expire or be materially altered without 30 days written notice and without securing and delivering to the city a substitute, renewal and replacement bond in conformance with this chapter. In the event the city 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 bonds back to the applicable principal, where it shall continue to be maintained. The performance bonds required hereunder shall contain the following endorsements:
"It is hereby understood and agreed that this performance bond may not be reduced, altered or canceled by franchisee or the bonding company without 30 days written notice, by certified mail, to the City Clerk."
(6) Immediately upon the effective date of the resolution granting a franchise under this chapter, franchisee shall file with the City Clerk the following liability insurance policies issued by a company authorized to do business in the state and acceptable to the City Commission:
(a) General liability: $1,000,000 each occurrence, $5,000,000 aggregate, against bodily injury, death, or property damage.
(b) Automobile insurance: $1,000,000 each occurrence, and aggregate against bodily injury, death, or property damage for any of franchisee's owned or leased motor vehicles used in the construction/installation of any lines, facilities or equipment authorized by the franchise.
(c) Workers compensation: The amount required by Kentucky Revised Statutes.
(7) Franchisee shall maintain on file with the City Clerk a certified copy of the insurance policy(s) specifically endorsed to include all liability assumed by franchisee hereunder and a certificate of insurance certifying the coverage required under this chapter, which certificate shall be subject to the approval of the city as to the adequacy of the certificate and of the insurance certified under the requirements of this chapter. Such policy(s) and certificate shall be identified on their face by the name of franchisee, and shall be submitted to the City Clerk, 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) Franchisee shall maintain public liability, property damage and other insurance required by this chapter that protects franchisee and the city, its officers, agents, employees and appointed and elected officials from any and all claims for damages or personal injury including death, demands, actions, and suits brought against any of them arising from operations under the franchise or in connection therewith. This insurance coverage constitutes a minimum requirement and shall in no way be deemed to lessen, limit or define the liability of franchisee, related entities, its successors or assigns, under the terms of the franchise.
(9) The City Commission reserves the right to make increases in the amount of insurance coverage referred to in this section at any time.
(G) Permits. Prior to performing any construction or installation work in the public rights-of-way, franchisee shall apply to the city 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 public rights-of-way and provide other such information as required by the city.
(2) Franchisee shall coordinate any construction work within the public rights-of-way with the city and shall begin construction work only after approval of the city.
(3) All permits issued by the city shall be conspicuously displayed at all times at the indicated work site and shall be available for inspection by city personnel.
(H) Notification. Franchisee shall notify the Mayor, 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) Underground construction. Except as provided in division (J) of this section, all of franchisee's facilities shall be installed underground and all street crossings installation shall be made by trenchless technology.
(1) Franchisee shall register any and all underground line locations with the Richmond Municipal Utility and the local "Before You Dig" or "BUD" office for tracking specific underground line locations.
(2) All backfilling and replacement of pavement shall be done by franchisee:
(a) In accordance with city requirements and all restoration work shall be completed to the same or better condition than found; and
(b) To the satisfaction of the city, and, if not acceptable, may be completed by the city at franchisee's expense.
(3) At any time franchisee disturbs the yard, residence, or other real or personal property in the city, franchisee shall ensure that the yard, residence, or other personal property is returned, replaced, and/or restored to a condition that is sufficiently comparable to the condition that existed prior to the commencement of the work.
(4) The costs associated with both the disturbance and the return, replacement, and/or restoration shall be borne by franchisee.
(J) Aerial construction. Aerial construction of facilities must be specifically authorized by the city prior to construction and located to minimize interference with the other uses of the rights-of-way and other public properties, and interference with the rights and reasonable convenience of property owners whose property adjoins any of the rights-of-way and other public properties. The decision to authorize above ground construction shall be applied in a non-discriminatory manner. If other franchisees have facilities above ground and there is capacity available, above ground installations shall be permitted until such time as all franchisees are required to relocate underground. Aerial facilities shall be moved underground at franchisee's own cost upon request from the city or when other users of the same rights-of-way convert to underground facilities.
(K) 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 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 said utility, and the granting of a communications franchise by the city 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 the city.
(3) All construction, installation or maintenance by franchisee shall be completed with diligence and with respect to all property, contracts, persons, rights and the interests and rights of the public.
(4) During any phase of construction, installation, maintenance, and repair of the system, franchisee shall use materials of good and durable quality and all such work shall be performed in a safe, thorough, and reliable manner.
(L) 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 public 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 the city in accordance with the Manual on Uniform Traffic Control Devices.
(M) Delay. City required improvements to city rights-of-way shall not be delayed by work authorized by this chapter.
(N) Special exceptions. The city 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) Franchisee demonstrates that the increased economic burden and the potential adverse impact on franchisee's construction schedule resulting from the strict enforcement of the requirement actually or effectively prohibits the ability of franchisee to provide communications services in the city; and
(3) Franchisee demonstrates that the requirement unreasonably discriminates against franchisee in favor of another person.
(4) Any special exceptions shall be granted in a non-discriminatory manner.
(O) Inspections. All construction, installation and operation of franchisee's system in the rights-of-way are subject to inspection by the city.
(P) 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 the city, 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 the city, within such time period as may be specified by the city. If the pavement is not restored as specified by the city within the time period specified by the city, and unless delayed by a strike or conditions beyond franchisee's control, the city 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 the city, shall be assessed against franchisee.
(Ord. 05-13, passed 4-26-05)