The City shall be responsible on a nondiscriminatory
and competitively neutral basis for the continued administration of
this ordinance and any use agreements and/or associated GOL's granted
hereunder. The City may delegate this authority from time to time
in any manner consistent with applicable law; provided, however, that
the City shall not delegate enforcement authority.
Any rights granted pursuant to this ordinance
and pursuant to any use agreement authorized hereunder are subject
to the authority of the City to adopt and enforce ordinances necessary
to the health, safety, and welfare of the public. Providers shall
be subject to and comply with all applicable laws enacted by the City
pursuant to its Charter, to the extent not in conflict with Massachusetts
or federal law. Nothing in this ordinance shall be deemed to waive
a right, if any, that any party may have to seek judicial or regulatory
review as to any provisions of the ordinance or as to actions of the
parties under applicable federal, state, or local law currently in
effect or as may hereinafter be amended.
The provisions of this ordinance shall be deemed
incorporated in each use agreement granted subsequent to the adoption
of this ordinance. Nothing in this ordinance or amendments thereto
shall be interpreted to unilaterally deprive any person of any rights
or obligations imposed by any binding and existing valid franchise,
use agreement, contract, GOL or other authorization during the term
thereof, whether entered into before or after enactment of this ordinance,
and shall impose obligations on any such person additional to those
included in such franchise, use agreement contract or other authorization
only to the extent permitted by law and to the extent not inconsistent
with such franchise, use agreement, contract or authorization; provided
that the failure of the City to enforce any provision herein or the
failure of any person to comply with any provision herein shall not
be a waiver of the City's right to enforce such provisions, nor shall
it in any way constitute evidence or agreement by the City that such
person has a valid existing franchise, use agreement contract or other
authorization.
Certain information required to be filed with the City pursuant to this ordinance may be subject to inspection and copying by the public pursuant to the provisions of the Massachusetts General Statutes related to access to open records. Notwithstanding any ordinance or provision to the contrary, the City must disclose any proposed facilities locations of providers pursuant to the grant of location process codified at MGL c. 166, §§ 21 and 22.
As a condition of use of the rights-of-way,
providers, at their sole cost and expense, shall indemnify, protect,
defend (with legal counsel representing the City that is acceptable
to the City, such approval not to be unreasonably withheld) and hold
harmless the City, its elected officials, officers, employees, and
agents, from and against any and all claims, demands, losses, damages,
liabilities, fines, charges, penalties, administrative and judicial
proceedings and orders, judgments, remedial actions of any kind, and
all costs and expenses of any kind, including, without limitation,
reasonable attorney's fees and costs of defense arising, directly
or indirectly, in whole or in part, out of the fact that the City
approved a use agreement with provider, the rights granted to provider,
or the activities performed, or failed to be performed, by provider
under the use agreement or use of the rights-of-way, or otherwise,
except to the extent arising from or caused by the sole or gross negligence
or willful misconduct of the City, its elected officials, officers,
employees, agents or contractors. This indemnification shall survive
the expiration or termination of any use agreement or use of the rights-of-way
for a period of two years after the effective date of expiration or
termination or satisfactory removal of all facilities from the rights-of-way
as reasonably determined by the City, including the restoration of
property to its condition immediately prior to the removal activity.
Providers shall have no cause of action whatsoever
against the City for damages of any kind arising from any of the provisions
or requirements of an agreement granted pursuant to this ordinance,
or because of the enforcement thereof by said City.
In performing activities and exercising its rights and obligations under any use agreement, providers shall comply with all applicable federal, state and local laws, ordinances, regulations and policies, including, but not limited to, all laws, ordinances, regulations and policies relating to construction and use of public property. This ordinance incorporates and does not supplant the existing procedures, including public hearings and notice to abutters for grants of new locations for wires, poles, conduits and similar facilities pursuant to MGL c. 166, §§ 21 and 22.
The City shall be entitled to enforce this ordinance
and any agreement through all remedies lawfully available.
Under no circumstances shall any use agreement
authorized by this ordinance be construed to create any relationship
of agency, partnership, joint venture, or employment between the parties.
Unless otherwise provided herein or by MGL c. 249, § 4, a provider may appeal any decision of the City pursuant to this ordinance or applicable use agreement to the governing body of the City within 15 calendar days of such decision where, upon written request of the provider specifying this provision and including the details of the alleged claim, an evidentiary hearing shall be held on such appeal.
A provider shall not be relieved of its obligation
to comply with any of the provisions of this ordinance or its applicable
agreement by reason of any failure of the City to enforce prompt compliance.
All public notices or ordinances required to
be published by law shall be published in the official newspaper of
the City. A provider shall be responsible for all costs of publication
that may be required with respect to its use agreement or any amendments
thereto.
If any material section of this ordinance or
of any use agreement granted pursuant to it is held by a governmental
authority of competent jurisdiction to be invalid or unlawful as conflicting
with applicable laws now or hereafter in effect, or is held by a court
or competent governmental authority to be modified in any way in order
to conform to the requirements of any such applicable laws, such provision
shall be considered a separate, distinct, and independent part of
the ordinance or use agreement, and, to the extent possible, such
holding shall not affect the validity and enforceability of all other
provisions herein or in the applicable use agreement.
