Chapter 20.06 CONDITIONS OF GRANT OF LICENSE, FRANCHISE OR CABLE FRANCHISE

(1) All grantees, before commencing any construction in public ways, shall comply with all requirements of the Des Moines Municipal Code or other ordinances of the city.

(2) All grantees shall provide written confirmation sufficient for customary land survey and land title insurance purposes concerning the location of its facilities in public ways and disclaiming any interest in public ways where it has no license or franchise to construct or operate its facilities. [Ord. 1316 § 44, 2003.]

20.06.020 Interference with the public ways.

No grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the city, by the general public or other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the city. [Ord. 1316 § 45, 2003.]

20.06.030 Damage to property.

No grantee or any person acting on a grantee’s behalf shall take any action or permit any action to be done which may impair or damage any public ways, or other property located in, on or adjacent thereto except in accordance with DMMC 20.06.120. [Ord. 1316 § 46, 2003.]

20.06.040 Notice of work.

Unless otherwise provided in a license or franchise agreement, no grantee, or any person acting on the grantee’s behalf, shall commence any nonemergency work involving undergrounding, excavation or obstructing in or about the public ways without five working days’ advance written notice to the city. Any private property owner whose property will be affected by a grantee’s work shall be afforded the same notice. [Ord. 1316 § 47, 2003.]

20.06.050 Repair and emergency work.

In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the city manager as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable. [Ord. 1316 § 48, 2003.]

20.06.060 Maintenance of facilities.

Each grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. [Ord. 1316 § 49, 2003.]

20.06.070 Relocation or removal of facilities.

Within 30 days following written notice from the city, a grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways whenever the city manager or designee shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

(1) The construction, repair, maintenance or installation of any city or other public improvement in or upon the public ways.

(2) The operations of the city or other governmental entity in or upon the public ways.

(3) The vacation of a public street or the release of a utility easement. [Ord. 1316 § 50, 2003.]

20.06.080 Removal of unauthorized facilities.

Within 30 days following written notice from the city, any grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public ways shall, at its own expense, remove such facilities or appurtenances from the public ways. If such grantee fails to remove such facilities or appurtenances, the city may cause the removal and charge the grantee for the costs incurred. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

(1) Upon expiration or termination of the grantee’s license or franchise.

(2) Upon abandonment of a facility within the public ways.

(3) If the system or facility was constructed or installed without the prior grant of a license or franchise.

(4) If the system or facility was constructed or installed without the prior issuance of a required construction permit.

(5) If the system or facility was constructed or installed at a location not permitted by the grantee’s license or franchise; provided, however, that the city may, in its sole discretion, allow a grantee, franchisee, or other such persons who may own, control, or maintain cable or telecommunications facilities within the public ways of the city to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the city. Any plan for abandonment or removal of a grantee or franchisee’s facilities must be first approved by the public works director, and all necessary permits must be obtained prior to such work. Upon permanent abandonment of the property of such persons in place, the property shall become that of the city, and such persons shall submit to the city an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. The provisions of this section shall survive the expiration, revocation, or termination of an authorization or franchise granted under this title.

(6) Any such other reasonable circumstances affecting public health, safety and welfare deemed necessary by the city manager or designee. [Ord. 1316 § 51, 2003.]

20.06.090 Failure to relocate.

If a grantee is required to relocate, change or alter the telecommunications facilities hereunder and fails to do so, the city may cause such to occur and charge the grantee for the costs incurred. [Ord. 1316 § 52, 2003.]

20.06.100 Emergency removal or relocation of facilities.

The city retains the right and privilege to cut or move any telecommunications facilities located within the public ways as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The city shall not be liable to any cable operator, telecommunications carrier or provider, or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the city’s actions under this section. [Ord. 1316 § 53, 2003.]

20.06.110 Damage to grantee’s facilities.

Unless directly and proximately caused by the willful, intentional or malicious acts of the city, the city shall not be liable for any damage to or loss of any telecommunications facility within the public ways as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public ways by or on behalf of the city. [Ord. 1316 § 54, 2003.]

20.06.120 Restoration of public ways.

Restoration shall comply with the following:

(1) When a grantee, or any person acting on its behalf, does any work in or affecting any public way, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to the same condition which existed before the work was undertaken. As used in this section, “promptly” shall mean as required by the city’s public works director in the reasonable exercise of the director’s discretion.

(2) If weather or other conditions do not permit the complete restoration required hereunder, the grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the grantee’s sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

(3) A grantee or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required 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 way.

(4) The public works director shall be responsible for inspection and final approval of the condition of the public ways following any construction and restoration activities therein. Further, the provisions of this section shall survive the expiration, revocation, or termination of an authorization, franchise, lease, or other agreement granted pursuant to this title. [Ord. 1316 § 55, 2003.]

20.06.130 Facilities maps.

Each grantee shall provide the city with an accurate map or maps certifying the location of all telecommunications facilities within public ways. Each grantee shall provide updated maps annually or upon request of the city. [Ord. 1316 § 56, 2003.]

20.06.140 Duty to provide information.

Within 10 days of a written request from the city manager or designee, each grantee shall furnish the city manager or designee with information sufficient to demonstrate:

(1) That grantee has complied with all requirements of this title.

(2) That all taxes and fees due the city in connection with the telecommunications services and facilities provided by the grantee have been properly collected and paid by the grantee.

(3) That all books, records, maps and other documents maintained by the grantee with respect to its facilities within the public ways shall be made available for inspection by the city manager or designee at reasonable times and intervals. [Ord. 1316 § 57, 2003.]

20.06.150 Leased capacity.

Subject to the provisions of DMMC 20.06.230, a grantee shall have the right to offer or provide capacity or bandwidth to another telecommunications provider; provided, that:

(1) Grantee shall furnish the city in advance with a copy of any such proposed lease or agreement.

(2) The proposed lessee or person shall comply with all of the requirements of this title. [Ord. 1316 § 58, 2003.]

20.06.160 Grantee insurance.

Unless otherwise provided by franchise or license, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the grantee and the city, and its elected and appointed officers, officials, agents, representatives and employees as additional insureds:

(1) Comprehensive general liability insurance with limits not less than:

(a) Five million dollars for bodily injury or death to each person;

(b) Five million dollars for property damage resulting from any one accident; and

(2) Automobile liability for owned, nonowned and hired vehicles with a limit of $3,000,000 for each person and $3,000,000 for each accident.

(3) Worker’s compensation within statutory limits and employer’s liability insurance with limits of not less than $1,000,000.

(4) Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000.

(5) The liability insurance policies required by this section shall be maintained at all times by the grantee. Each such insurance policy shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until sixty (60) days after receipt by the City, by registered mail, of a written notice addressed to the City Manager of such intent to cancel or not to renew.

(6) Within 30 days after receipt by the city of said notice, and in no event later than 15 days prior to said cancellation, the grantee shall obtain and furnish to the city replacement insurance policies meeting the requirements of this title. [Ord. 1316 § 59, 2003.]

20.06.170 General indemnification.

In addition to and distinct from the insurance requirements of this title, each grantee hereby agrees to defend, indemnify and hold the city and its officers, officials, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorneys’ fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the acts, omissions, failure to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this title or by a grant agreement made or entered into pursuant to this title. [Ord. 1316 § 60, 2003.]

20.06.180 Performance and financial guarantees.

Before a license or franchise granted pursuant to this title is effective, and as necessary thereafter, the grantee shall provide and deposit such moneys, bonds, letters of credit or other instruments in form and substance acceptable to the city as may be required by this title, or by an applicable license or franchise agreement or other applicable code, ordinance or rules and regulations of the city. [Ord. 1316 § 61, 2003.]

20.06.190 Security fund.

Each grantee shall establish a permanent security fund with the city by depositing the amount of up to $50,000 with the city in cash, an unconditional letter of credit, or other instrument acceptable to the city, which fund shall be maintained at the sole expense of grantee so long as any of grantee’s telecommunications facilities are located within the public ways. This security fund shall be separate and distinct from any other bond or deposit required.

(1) The fund shall serve as security for the full and complete performance of grantee’s obligations under this title, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the city.

(2) Before any sums are withdrawn from the security fund, the city manager or designee shall give written notice to the grantee:

(a) Describing the act, default or failure to be remedied, or the damages, cost or expenses which the city has incurred by reason of the grantee’s act or default;

(b) Providing a reasonable opportunity for the grantee to first remedy the existing or ongoing default or failure, if applicable;

(c) Providing a reasonable opportunity for the grantee to pay any moneys due the city before the city withdraws the amount thereof from the security fund, if applicable;

(d) That the grantee will be given an opportunity to review the act, default or failure described in the notice with the city manager or designee.

(3) Grantee shall replenish the security fund within 14 days after written notice from the city manager or designee that there is a deficiency in the amount of the fund. [Ord. 1316 § 62, 2003.]

20.06.200 Construction and completion bond.

Unless otherwise provided in a license or franchise agreement, a bond written by a surety acceptable to the city equal to at least 100 percent of the estimated cost of constructing the grantee’s telecommunications facilities within the public ways shall be deposited before a construction permit is issued.

(1) The construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the city manager or designee, including restoration of public ways and other property affected by the construction.

(2) The construction bond shall guarantee, to the satisfaction of the city:

(a) Timely completion of construction;

(b) Construction in compliance with applicable plans, permits, technical codes and standards;

(d) Restoration of the public ways and other property affected by the construction;

(e) The submission of “as-built” drawings after completion of the work as required by this title;

(f) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. [Ord. 1316 § 63, 2003.]

20.06.210 Acts at grantee’s expense.

Any act that a grantee is or may be required to perform under this title, a license, franchise, or cable franchise or applicable law shall be performed at the grantee’s expense. [Ord. 1316 § 64, 2003.]

20.06.220 Coordination of construction activities.

All grantees are required to cooperate with the city and with each other as follows:

(1) By February 1st of each year, grantee shall provide the city manager or designee with a nonbinding schedule of their proposed construction activities which may affect the public ways for that year. Grantees shall promptly file modified schedules with the city as their construction plans change.

(2) Each grantee shall meet with the city, other grantees and users of the public ways annually or as determined by the city to schedule and coordinate construction.

(3) All construction locations, activities and schedules shall be coordinated, as ordered by the city manager or designee, to minimize public inconvenience, disruption or damages. [Ord. 1316 § 65, 2003.]

20.06.230 Assignments or transfers of grant.

(1) Ownership or control of a telecommunications license or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without prior written notice to the city. The grantee and the proposed assignee or transferee of the grant or system shall provide to the city manager or designee information required of a license or franchise applicant pursuant to this title with respect to the proposed transferee or assignee.

(2) The grantee shall reimburse the city for all direct and indirect fees, costs and administrative expenses incurred by the city in processing a request to transfer or assign a license or franchise.

(3) Upon receipt of all information required herein, the city shall have 120 days to review and approve or deny the requested assignment or transfer, unless such period is extended by agreement of the city and grantee. [Ord. 1316 § 66, 2003.]

20.06.240 Transactions affecting control of grant.

Any transaction which results in any change of the ownership or in any manner the working control of the grantee, of the ownership or working control of a license or franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth or any part of the transmission capacity of the grantee’s telecommunications system, facilities or any parts thereof, all defined as five percent or more ownership or control, shall be considered an assignment or transfer requiring notice to the city. Transactions between affiliated entities are not exempt from this notice requirement. [Ord. 1316 § 67, 2003.]

20.06.250 Revocation or termination of grant.

A license or franchise granted by the city to use or occupy public ways may only be revoked for one or more of the following reasons:

(1) Construction or operation at an unauthorized location.

(2) Misrepresentation of a material fact by or on behalf of a grantee in any franchise or license application to the city.

(3) Abandonment of telecommunications facilities in public ways.

(4) Failure to relocate or remove facilities as required in this title.

(5) Failure to pay taxes, compensation, fees or costs when and as due the city.

(6) Insolvency or bankruptcy of the grantee.

(7) Violation of a material provision of this title.

(8) Violation of a material term of a license or franchise. [Ord. 1316 § 68, 2003.]

20.06.260 Notice and duty to cure.

In the event that the city manager or designee believes that grounds exist for revocation of a license or franchise, the grantee shall be given written notice of the apparent violation or noncompliance, be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and be given a reasonable period of time not exceeding 30 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.

(3) That it would be in the public interest to impose some monetary damages, penalty or sanction less than revocation. [Ord. 1316 § 69, 2003.]

20.06.270 Hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory to the city manager or designee as provided hereunder, the city manager or designee shall refer the apparent violation or noncompliance to the city’s hearing examiner. The city shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. [Ord. 1316 § 70, 2003.]

20.06.280 Standards for revocation or lesser sanctions.

If persuaded that the grantee has violated or failed to comply with a material provision of this title or of a franchise or license or applicable codes, ordinance, statutes, or rules and regulations, the hearing examiner shall determine whether to revoke the license or franchise, and issue a written decision relating thereto, or to establish some monetary damages, penalty, lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

(1) Whether the misconduct was egregious.

(2) Whether substantial harm resulted.

(3) Whether the violation was intentional.

(4) Whether there is a history of prior violations of the same or other requirements.

(5) Whether there is a history of overall compliance.

(6) Whether the violation was voluntarily disclosed, admitted or cured. [Ord. 1316 § 71, 2003.]

20.06.290 Ownership and removal of improvements.

In the event that the city requires removal of facilities from the rights-of-way, such removal shall be accomplished at the sole expense of the grantee and completed within 30 days after receiving notice from the city requiring removal. In the event that telecommunications facilities or other equipment are left upon city property after expiration or termination of the lease, they shall become the property of the city if not removed by the grantee upon 30 days’ written notice from the city. No grant shall be issued under this title unless it contains a provision which states that all buildings, landscaping, and all other improvements, except telecommunications equipment, shall become the property of the city upon expiration or termination of the grant. [Ord. 1316 § 72, 2003.]

20.06.300 Incorporation by reference.

The provisions of this title shall be incorporated by reference in any authorization, grant, franchise, or license issued hereunder. The provisions of any proposal submitted and accepted by the city shall be incorporated by reference in the applicable authorization, grant, franchise, or license. However, in the event of any conflict between the proposal, this title, and the authorization, grant, franchise, or license, the authorization, grant, franchise, or license shall be the prevailing document. [Ord. 1316 § 73, 2003.]