[HISTORY: Adopted by the Board of Commissioners of the City of Union City by Ord. No. 1999-20 (§ 8-15 of the 1996 Revised General Ordinances). Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
- COMMUNICATIONS SYSTEM
- A fiber-optic cable system for the transmission and distribution of communication signals, including any conduit, fiber-optic cable, splicing boxes, surface markers or other facilities located within the public right-of-way.
- Any person who purchases any services provided by a communications system.
- GROSS REVENUES
- All receipts collected by a licensee for all communications and communications-related operations and services within the City. Gross revenue includes, but is not limited to, revenue from the sale or lease of customer's premises, equipment, installation charges, access charges paid to the licensee by other communications systems or carriers, sales and occupation surcharges to customers, and the lease or resale of lines or circuit paths to third parties.
- The person who is issued a license in accordance with the provisions of this chapter.
- PUBLIC RIGHT OF WAY
- Any public street, highway, avenue, alley, bridge or sidewalk within the City.
No person may construct a fiber-optic system in any public right-of-way, in any easement granted to a third party within any public right-of-way, or within any existing conduit or structure within any public right-of-way without first obtaining a license pursuant to this chapter.
Application. An application for a license shall be filed with the City Engineer and shall include an engineering site plan showing:
The proposed location of the system;
Any manholes or overhead poles;
The size, type and proposed depth of any conduit or other enclosures;
The relationship of the system to all existing streets, sidewalks, poles, utilities and other improvements within the public right-of-way; and
Any additional information which the City Engineer may require.
Issuance. The City Engineer shall issue all licenses required by this chapter. The City Engineer shall review each application and shall grant a license if the application complies with the requirements of this chapter and any other applicable legal requirements. In granting a license, the City Engineer may change the proposed location of the system when necessary to avoid interference with other cables, wired conduits, pipes, sewers or other facilities placed within the public right-of-way.
Amendment to license. If a licensee proposes to expand, reduce, relocate or modify any portion of its system within the public right-of-way, the licensee shall file an application for an amendment of its license with the City Engineer. An application for an amendment shall include relevant new information of the type required for the initial application and shall be reviewed by the City Engineer in the same manner as the original application. If the amendment requires only one or more connections to the main system and if the new connections will run entirely through existing underground utility conduit or ducts so as not to require any excavation in the public right-of-way, or by means of overhead wires or cable between existing utility poles, the licensee shall not be required to pay an additional administrative fee for the amendment.
No license or amendment shall be granted for any system until the required fees have been paid and a completed application approved by the City Engineer.
The system shall be installed and constructed in accordance with the terms of the license granted by the City Engineer.
After installation, the licensee shall file with the City Engineer an as-built survey specifying the actual location of the system, including any manholes or overhead poles, and the licensee shall provide such signs or other economically feasible means of locating the system as may be reasonably required by the City Engineer, including a requirement that the licensee contract with a one-call locating service or similar locating service for location of the system by the service.
If it becomes necessary to dig into or in any manner break any public right-of-way to install, construct, reconstruct, repair, operate, disconnect or remove a system, the licensee shall first obtain a permit from the City to do so.
All technical standards governing installation, construction, reconstruction, repair, operation, disconnection and removal of a licensed system shall conform with applicable federal, state and City regulations.
The licensee shall be responsible for repairing or reimbursing other licensed or franchised utilities or communications systems for any damage to their property caused by negligence of the licensee or its agents, employees or contractors in connection with the installation, construction, reconstruction, repair, operation, disconnection or removal of the licensee's communications system.
No license required under this chapter shall be granted to install a system in any space for public use.
Failure by the licensee to comply with any of the requirements of the license or this chapter shall constitute grounds for termination of the license by the City.
Upon 90 days' notice from the City, the licensee shall protect, support or temporarily or permanently disconnect/relocate within the same or other public right-of-way, or remove any of its system when required to do so by the City because of street or other public excavation, construction, repair, grading, traffic conditions, installation of sewers, drains, water pipes or City-owned power or signal lines; vacation or relocation of public right-of-way; installation or construction of any other structure by the City or any other public agency or any improvement which promotes the public health, safety or welfare.
Fees. As consideration for use of municipal rights-of-way, the licensee shall pay the City the fees set forth in Chapter 155, Fees.
Increase of length of route. At the time of filing of each proposed amendment to the license increasing the length of route traversed by the communication line within the public right-of-way, the licensee shall pay to the City Engineer an additional use fee computed in accordance with Chapter 155, Fees.
Report. Each annual use fee payment shall be accompanied by a report on a form approved by the Business Administrator and the Corporation Counsel. Each such report shall contain a notarized verification by the Chief Financial Officer of the licensee and, upon request by the City, such report shall be verified by a certified public accountant at the expense of the licensee.
Audit; error in payment. Acceptance of any use fee shall not constitute an acknowledgment that the amount paid is correct nor shall acceptance constitute a release of any claim for additional sums due. Use fees shall be subject to audit by the Business Administrator and assessment or refund if the payment is found to be an error. If an audit results in an additional assessment, the additional payment shall be due immediately, together with interest at the rate of 8% per year calculated from the due date for the use fee in question.
License year. The annual use fee shall be based on a license year ending on June 30, and the use fee for each license year shall be due on June 30 of each year. Interest at the rate of 8% per year on any overdue use fee shall be calculated from the due date for the use fee.
Liability. Nothing in this chapter shall limit the liability of the licensee for applicable federal, state and local taxes, permits, registrations and approvals.
Change of fees. Nothing in this chapter shall be construed to prevent the City from changing any of the fees required by this section.
Liability claims. The licensee shall defend and indemnify the City from liability for damages to property or injury or death to any person, including payments made under workers' compensation laws, arising from installation, construction, reconstruction, repair, operation, disconnection or removal of the licensee's communications system. Upon receipt of written notice of litigation against the City, the licensee shall defend the same at its own expense. A judgment against the City on account of a claim shall be conclusive as against the licensee and shall entitle the City to recover the full amount thereof with interest and costs and attorneys' fees incurred by the City. A right of action shall accrue to the City as soon as judgment is rendered. The City shall cooperate with the licensee's defense of any such claim or action.
Liability insurance. The licensee shall purchase and maintain general liability insurance in an amount and coverage determined by the risk manager in conformity with written standards. The licensee shall maintain insurance coverage as long as the licensed communications remains within the public right-of-way. The City shall be named as an additional insured on the policy, which shall provide on its face that it may not be canceled, except after at least 30 days' written notice to the City. Immediately upon issuance of the required license, the licensee shall file with the City Engineer a certificate of insurance which clearly discloses on its face coverage in conformity with all of the foregoing requirements, and if requested by the Business Administrator, the licensee shall additionally submit a certified copy of the policy.
Surety bond. Immediately upon issuance of the required license, the licensee shall file with the City Engineer a surety bond of an approved surety in an amount and form approved by the City Engineer. The bond shall protect the City from damages and costs incurred by the City from any failure by the licensee to restore all public right-of-way and other public property affected by the installation, construction, reconstruction, repair, operation or removal of the licensed communications system to its proper condition in accordance with City standards. The bond shall be maintained by the licensee for as long as the system remains in place within public right-of-way and, thereafter, until the licensee has satisfied in full its obligations to the City, which arise out of or pertain to the licensed communications system.
Failure to secure license. Any person who fails to secure the license required under this chapter, or any licensee who fails to comply with the requirements of the license or this chapter or with the other applicable legal requirements, after notification of such violation by the City Engineer, shall immediately abate the violation or cause the licensee's communications system either to be removed or to be disconnected and rendered inoperative.
Removal of system. The City may remove or disconnect and render inoperative any communications system used or maintained contrary to this chapter.
Transfers and assignments. The licensee shall not transfer or assign all or any portion of its interest in any license granted pursuant to this chapter without prior written authorization of the City Engineer, which authorization shall not be unreasonably withheld, conditioned, delayed or denied. For purposes of this subsection, a merger or corporate reorganization shall not be deemed a transfer or assignment.
Notice. The City Engineer shall promptly send, by certified mail, return receipt requested, written notice advising each prospective licensee of any of the following:
Hearing on appeal. Within three business days after receipt of any such notice from the City Engineer, an applicant shall have the right to a hearing before the Business Administrator by filing a written appeal with the Business Administrator specifying the reasons for the appeal. At least 10 days before the date of the hearing, the Business Administrator shall notify the applicant of the hearing date. At the hearing, the applicant may be represented by legal counsel, may call witnesses and present evidence and may cross examine adverse witnesses. The Business Administrator's decision shall be final.