§ 16-177. Terms of the right-of-way permit.
(a)
Conditions of permit. All right-of-way permits granted are conditioned upon:
(1)
The applicant having obtained and submitted to the city council, prior to construction and installation of its new facilities, a bond as required in subsection (k)(2) hereafter;
(2)
Permit holders agreement to make any excess capacity of its facility available to other applicants on commercially practical and technically feasible terms;
(3)
To the extent feasible and subject to reasonable availability agreement between a telecommunications carrier and the city concerning price, maintenance, access and security, interconnection of the new telecommunications facility with public buildings; and
(4)
The execution and delivery of a City of Westfield right-of-way license agreement in form and substance satisfactory to the city council.
(b)
Permit term. Rights-of-way permits shall be valid for the period commencing on the date of filing of an application and ending upon the earlier to occur of (i) the expiration of the useful life of the facility as reasonably determined by the city council or (ii) 30 years from the data of the application. A permit holder desiring to continue to use the facility after the expiration of the permit term shall not more than 180 days nor less than 90 days before expiration of the current permit file an application with the city for a permit as though the existing facility were a proposed new facility. Each co-locator must also file for a new permit.
(c)
Revocation of permits. Except to the extent that a right-of-way permit also constitutes a statutory grant of location and current law limits the ability of the city council to revoke a grant of location, the city council during the permit term may revoke a right-of-way permit granted hereunder after notice and hearing if it shall reasonably determine that (i) the permit holder is in default, (ii) the permit holder fails to construct the facilities for which a permit was granted within 12 months of the granting of the permit, or (iii) the permit holder has failed to relocate its facility or attachment to a new location within the designated time following an order from the city council. The permit holder shall be given not less than ten days prior written notice of the time and place of the hearing on revocation and shall have the opportunity at the public hearing to present evidence.
(d)
Removal of facilities. Following revocation of the permit or the expiration of the permit term without an application to continue to use the facility unless then existing statutes shall requite a different result and, if ordered by the city, the permit holder shall cease using the right-of-way. The permit holder shall remove all of its overhead and underground facilities from the right-of-way and restore the area to its original condition within six months following expiration or revocation of the permit. In the event that the permit holder fails to remove in facilities, the city may treat such as abandoned property and, among other remedies, remove the facilities and restore the area at the owner's sole cost and expense.
(e)
Removal of unauthorized facilities.
(1)
With the exception of permits held by municipal departments and permits held by public utilities, within 30 days following written notice from the city, any person or entity that owns, controls or maintains any overhead or underground facilities located within the right-of-way for which a permit has not been obtained and which is not a grandfathered facility shall apply for a permit and may request a hearing before the city council and shall have the opportunity at the hearing to present evidence if the application for a permit is denied, applicant shall, at its own expense, remove such facilities from the right-of-way and restore the area to original condition within six months of the date of the denial of the permit.
(2)
In the event that the applicant fails to remove its facilities, the city council may treat such as abandoned property arid, among other remedies, remove the facility and restore the area at owner's sole cost and expense.
(f)
Re-location of facilities due to public necessity.
(1)
The location of any overhead or underground facility covered by a right-of-way permit may be changed by order of the city council if it determines in its reasonable discretion that public necessity requires relocation of the facility. Except for emergency repair work, applicant is required to notify all co-locators upon receiving an order to relocate the facility from the city council. Applicant and all co-locators shall, at their own expense, relocate their facilities to such location as shall have been approved by the city council within 90 days of the receipt of the order of the city council. Upon relocation applicant shall promptly supply city council with "as built' plans of the relocated facility. Following the transfer of the facility and any attachments from the existing facility to the new facility, the existing facility shall be removed from the site within 90 days from the date of the completion of the transfer.
(2)
Unless directly and proximately caused by the willful, intentional or malicious acts by the city, the city shall not be liable for any damage to or loss of any overhead or underground facility located in the right-of-way as a result of or in connection with any public works, public improvements, construction, excavations, grading, filling or work of any kind in the right-of-way by or on behalf of the city. Right-of-way permits and grants of location for facilities that have been ordered to be relocated will be amended to reflect the new location once the facilities have been re-located.
(g)
Assignment of facilities. Except in connection with a transaction to which M.G.L.A. c. 166, § 15B applies, a right-of way permit is not transferrable or assignable. If a permit-holder transfers ownership or use of its facilities to another entity, such entity must apply for and receive its own permit in accordance with this article.
(h)
Non-exclusive grant. No permit granted under this article shall confer an exclusive right, privilege, license or franchise to occupy or use the right-of-way of the city for delivery of services or any other purposes. No permit granted under this article shall convey any right, title or interest in the right-of-way but shall be deemed a license to use and occupy the right-of-way in accordance with the terms of this article and the City of Westfield right-of-way license agreement. No permit shall be construed as a warranty of title. A permit granted shall be limited to a license to use only that specific portion of a right-of-way as specified in the plan that accompanies the application and in any approved permit or license agreement.
(i)
Co-location of facilities. Issuance of a right-of-way permit is conditioned upon the agreement of the applicant to make excess capacity available to other co-locators on commercially practical and technically feasible terms. All new facilities for which a right-of-way permit has been issued shall be constructed, installed and located in accordance with the following terms and conditions:
(1)
Attachments shall be installed within existing underground or overhead facilities whenever excess capacity exists within such existing facility.
(2)
Whenever existing facilities have been required by the city to be located underground within a right-of way no permit will be granted for an overhead facility.
(3)
Whenever any existing facility is required by the city for reasons of public necessity to be relocated, each applicant owner shall relocate its facilities within a reasonable period of time and all co-locators who share the facility shall, absent extraordinary circumstances or undue hardship as determined by the city council, also relocate their attachments concurrently to minimize the disruption of the right-of-way.
(4)
Whenever new underground facilities must be constructed because the excess capacity of existing facilities has been exhausted, applicant shall anticipate its needs for at least 30 years and is encouraged to construct new underground facilities sufficient to meet its needs for this time period as well as provide excess capacity to co-locators on commercially practical and technically feasible terms.
(5)
The city reserves the right to place, free of charge, signal circuits, signal supply circuits and the equipment attached to these circuits belonging to the city and used by it exclusively for municipal purposes on or in all existing facilities with excess capacity and on or in new facilities then owned or controlled by an applicant which is a public utility and shall be allowed access whenever necessary to place, maintain or remove its wires and cables.
(j)
Insurance.
(1)
The permit holder shall acquire and continuously maintain, while it possesses a right-of-way permit, liability insurance coverage on all personnel and equipment used to construct, operate, maintain and repair the overhead and underground facilities located within the right-of-way. This insurance must be with insurance companies licensed to do business in the Commonwealth of Massachusetts and shall contain the following coverage's and be in the following minimum amounts:
a.
Commercial general liability insurance including operation, independent contractors, complete operations for a period of one year from completing the street opening work, XCU hazards, broad form property damage and personal injury.
General aggregate $1,500,000.00 b.
Products and complete operations.
Aggregate $1,000,000.00 Each occurrence $1,000,000.00 Combined single limit $1,000,000.00 c.
Automobile liability insurance (covers owned, non-owned and hired vehicles).
Bodily injury liability $500,000.00 each person $1,000,000.00 each accident Property damage liability $250,000.00 each accident Combined single limit $1,000,000.00 d.
Worker's compensation and employer's liability.
Each accident $100,000.00 Disease—Policy limit $100,000.00 Disease—Each Employee $100,000.00 (2)
Certificates of insurance shall provide for at least 30 days notice to the city council of cancellation or material change. The name of the municipality shall be listed as an additional insured on the certificate of insurance.
(k)
Construction requirements.
(1)
All permit holders are required to obtain a building and electrical permit (if applicable), and (except for poles and attachments thereto) a street opening permit from the board of public works. Once commenced, construction shall proceed at an uninterrupted and consistent pace so that the right-of-way work described in the permit will be completed within a reasonable time
(2)
Before commencing construction, permit holders shall submit to the city clerk a performance bond, with corporate surety satisfactory to the law department, in an amount equal to the value of the construction which shall assure:
a.
The satisfactory completion of installation and commencement of operation of the system in accordance with terms of the permit, the indemnity of the city from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction and installation of the facilities authorized pursuant to the permit, the satisfactory restoration of adjoining property and public property in accordance with the provisions of this article.
b.
This bond shall be maintained in force until one year after the completion of the construction work.
(3)
Construction of new facilities must conform to the plan accompanying the application and to the terms of the permit and license agreement. All right-of-way work must conform to the Americans with Disabilities Act and the architectural access board regulations as currently in effect.
Right-of-way work shall comply with the following:
a.
Working hours. Except for emergency repair work, right-of-way work shall occur between 7:00 a.m. and 5:00 p.m. The permit holder must give notice of the intended right-of-way work 72 hours in advance to the superintendent of public works and unless the requirement for a police detail is waived by the police chief of the city, must arrange for and pay for a police detail to be present throughout the period of time that the right-of-way work is being conducted.
b.
Obligation to locate existing facilities. The permit holder or contractor must inform itself as to the existence and location of all existing facilities located in the same general area as the new facilities are to be located and must confer with the owners thereof in order to obtain information as to the vertical and horizontal locations of the facilities and other conditions that might affect the right-of-way work.
c.
Non-interference with existing facilities. The permit holder or contractor shall not interfere with an existing facility without the written consent of the superintendent of public works or his designee and the owner of the existing facility. If it becomes necessary to relocate an existing facility to accommodate the new facility, its owner shall do this and the cost of such work shall be borne by the permit holder.
d.
DIG-SAFE. The permit holder shall, in accordance with M.G.L.A. c. 164, § 76D, notify all public utilities 72 hours in advance of making any excavation in a public way. Such notification shall be made by means of obtaining a DIG-SAFE number. Said number shall be provided on the street opening permit application.
e.
Protection of existing facilities. The permit holder or contractor shall adequately support and protect by timbers, sheeting, etc., all existing overhead or underground facilities which may be in any way affected by the right-of-way work and shall do everything necessary to support, sustain and protect them under, over, along or across such work area. Excavation work shall be performed and conducted in such manner that it shall not interfere with access to fire stations, fire hydrants, water gates, underground vaults, catch basins or any other public structure.
f.
Adjoining property. The permit holder or contractor shall, at all times at its own expense, preserve and protect from injury any adjoining property and shall take such precautions as may be necessary for this purpose. The permit holder shall be responsible for all damages to public or private property or streets resulting from its failure to properly protect and carry out the right-of-way work.
g.
Trees. The permit holder or contractor shall not remove, even temporarily, any trees or shrubs which exist in the right-of-way work area without first obtaining the consent of the superintendent of public works. In the event a tree is either a accidentally destroyed by the permit holder or contractor or is authorized for removal by the city, the permit holder or contractor shall remove the tree, stump and debris from the work site and replace the tree with a superintendent of public works approved species with a minimum caliper of two inches in the identical location.
h.
Excavated material. The permit holder or contractor shall remove all excess excavated materiel, surplus water, muck, silt, residue or other run-off pumped or removed from excavations from the right-of-way work site.
i.
Temporary repairs of underground facilities. At the end of each day, all trenches must be plated if repair work is not completed. No un-plated trenches are permitted overnight and work in plated trenches must be continually prosecuted to completion to minimize the time trenches are plated.
j.
Noise. The permit holder or contractor shall conform to the requirements of the city noise ordinance.
k.
Debris and litter. The permit holder or contractor shall remove all debris and litter remaining from the right-of-way work site in a timely manner.
l.
Lawn surfaces and plantings. All lawn surfaces, which are disturbed during right-of-way work, shall be replaced with sod or six inches of screened loam, lime, fertilized and re-seeded with good quality lawn seed. Any areas containing plantings shall be restored to their original condition with the same or similar plantings.
m.
Erosion control. The permit holder shall be responsible for all erosion control and for obtaining any necessary permits from the city. Permit holder or contractor shall protect drainage structures from siltation by whatever means required including but not limited to the installation of hay bales and/or filter fabric. In the event that a drainage structure becomes damaged from siltation as a result of the right-of-way work, permit holder or contractor shall clean the structure before completing the right-of-way work.
n.
As built plans. Within 30 days following completion of construction of new facilities, permit holder shall file with the city council complete as-built plans of the new facilities including an accurate map certifying the location of all facilities within the right-of-way prepared by a registered professional engineer or other qualified professional.
o.
Tree trimming. The permit holders who own and maintain overhead facilities are responsible for trimming trees or other vegetation growing in the right-at-way to prevent their branches or leaves from touching or otherwise interfering with the overhead facility. All trimming or pruning shall be at the sole expanse of the permit holder and performed under the supervision of the city.
(l)
Emergency repair work. When notified by the city, permit holder is required to respond to calls for emergency repair work within two hours of the notice and to commence repairs immediately upon arrival at the site.
(m)
Maintenance. The permit holder shall at all times employ ordinary and reasonable care and shall install and maintain nothing less than commonly accepted methods and devices for preventing failures of overhead or underground facilities and accidents which are likely to cause damage, injuries or nuisances to the public. Owners of poles shall, upon the receipt of written notice served by the appropriate city agency, promptly make such substitution or repairs of such poles, wires, posts, supports or attachments as may be required such agency.
(Ord. No. 1381, § 16-149, 6-3-04)