Here is the current law:
Bookmark§ 116.72 RIGHTS-OF-WAY MANAGEMENT AND FACILITIES REQUIREMENTS.
(A) Encroachment permit. A franchisee shall be subject to and comply with the additional or supplementary terms and conditions of Louisville Metro'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 Louisville Metro, simultaneously install conduit provided by Louisville Metro (“Louisville Metro Conduitâ€). Louisville Metro shall reimburse franchisee for any marginal or additional costs incurred by franchisee in connection with installation of the Louisville Metro Conduit. Louisville Metro Conduit shall be installed in accordance with Louisville Metro specifications and consistent with sound engineering practice. No Communications Franchise Fee shall apply to any Louisville Metro Conduit.
(C) Removal of facilities. Upon expiration of a franchise, whether by lapse of time, by agreement between the franchisee and Louisville Metro, 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 Louisville Metro. Notwithstanding the foregoing, Louisville Metro may allow facilities to be left in place when Louisville Metro determines in its sole discretion that it is not practical or desirable to require removal.
(D) Relocation of facilities. Whenever Louisville Metro 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 Louisville Metro, 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 Louisville Metro 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 Louisville Metro due to Louisville Metro requirements relating to maintenance and use of the rights-of-way for Louisville Metro 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 subchapter. Nothing contained in this subchapter shall limit a franchisee's liability to Louisville Metro to the limits of insurance certified or carried.
(1) Upon being awarded a franchise, Franchisee shall immediately file a Franchise bond in the amount of $1,000,000, and a performance bond in an amount to be determined by the Director of the Department of Public Works and Assets. In no event shall the amount required by the Department of Public Works and Assets exceed the reasonable costs of repairing the rights of way in the event of non-performance by the franchisee. Said performance bond shall provide for the faithful performance of construction and installation of franchisee's system. Two years after demonstration of the completion of the construction of the system by franchisee to Public Works and Assets Department, Public Works and Assets Department shall release the performance bond.
(2) Said performance bond shall indemnify Louisville Metro 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 subchapter.
(3) The failure of franchisee to comply with its obligations under this subchapter or the franchise as determined by Louisville Metro shall entitle Louisville Metro to draw against either or both of Franchisee's performance or franchise bonds .
(4) The rights reserved to Louisville Metro with respect to the performance and franchise bonds required hereunder are in addition to all other rights of Louisville Metro, whether reserved by this subchapter or authorized by law, and no action, proceeding or exercise of a right with respect to such performance or franchise bonds shall affect any other rights Louisville Metro may have.
(5) The performance or franchise bonds required hereunder shall not expire or be materially altered without 30 days written notice and without securing and delivering to Louisville Metro a substitute, renewal and replacement bond in conformance with this subchapter. In the event Louisville Metro 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 and/or franchise bonds back to the applicable principal, where it shall continue to be maintained. The performance and franchise bonds required hereunder shall contain the following endorsements:
“It is hereby understood and agreed that this bond may not be reduced, altered or canceled by Franchisee or Surety without 30 days written notice, by certified mail, to Louisville Metro. Such termination or cancellation shall have no effect on any liability incurred or accrued under this bond prior to the effective date of such termination or cancellation.â€
(6) Immediately upon the effective date of the resolution granting a franchise under this subchapter, franchisee shall file with Louisville Metro the following proof of liability insurance issued by a company(ies) authorized to do business in the Commonwealth with an AM Best Rating of A- or better:
(a) General Liability Insurance , via an occurrence form, covering bodily injury, including death, personal injury and property damage, and including completed operations, contractual liability, independent contractors protective liability and personal injury liability protection. The minimum acceptable limit of liability amount is $5,000,000 per occurrence and aggregate under a combined single limit. This policy must include the Louisville/Jefferson County Metro Government, including its Mayor and Metro Council members, as Additional Insureds as respects all operations of the Insured Franchisee. This policy must cover Metro Government for damages resulting from the transmission of any communication over the cable communications system. The Metro Government reserves the right to make reasonable increases in the required amount of insurance coverage herein at anytime. Nothing herein is intended as a limitation on the extent of any legal liability of the franchisee.
(b) Copyright Infringement Liability insurance covering any alleged infringement of patent or copyright of any other legal infringement in the transmission of materials through the cable franchise system. This coverage may be written as part of the General liability Insurance, or through a stand-alone policy, however, if written separately, it must have a minimum limit of liability amount of $5,000,000 per occurrence and aggregate under a combined single limit and include the Louisville/Jefferson County Metro Government, including its Mayor and Metro Council members, as Additional Insureds as respects all operations of the Insured Franchisee. The Metro Government reserves the right to make reasonable increases in the required amount of insurance coverage herein at anytime. Nothing herein is intended as a limitation on the extent of any legal liability of the franchisee.
(7) Franchisee shall maintain on file with Louisville Metro a certificate of insurance certifying the coverage required under this subchapter, which certificate shall be subject to the approval of Louisville Metro as to the adequacy of the certificate and of the insurance certified under the requirements of this subchapter. Metro may at its sole discretion require a certified copy of the insurance policy(s) required under this subchapter, specifically endorsed to include all liability assumed by franchisee hereunder. Such policy(s) and certificate shall be identified on their face by the name of franchisee, and shall be submitted to Louisville Metro, in accordance with the terms and conditions of this subchapter. Failure to maintain adequate insurance as required under this subchapter shall be deemed a breach of the franchise.
(8) Metro Louisville 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 Public Works and Assets Department 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 Louisville Metro.
(2) Franchisee shall coordinate any construction work within the public rights-of-way with the Public Works and Assets Department and shall begin construction work only after approval of the Public Works and Assets Department.
(3) All permits issued by Louisville Metro shall be conspicuously displayed at all times at the indicated work site and shall be available for inspection by Louisville Metro personnel.
(H) Notification. Franchisee shall notify Public Works and Assets Department, 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 § 116.72(J), 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 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 Louisville Metro requirements and all restoration work shall be completed to the same or better condition than found; and
(b) To the satisfaction of Public Works and Assets Department, and, if not acceptable, may be completed by Louisville Metro at franchisee's expense.
(3) At any time franchisee disturbs the yard, residence, or other real or personal property in Louisville Metro, 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 Louisville Metro 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 Louisville Metro or when other users of the same rights-of-way convert to underground facilities.
(K) Standards. Any work required or performed pursuant to this subchapter 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 Louisville Metro 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 Louisville Metro.
(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 Louisville Metro in accordance with the Manual on Uniform Traffic Control Devices.
(M) Delay. Louisville Metro required improvements to Louisville Metro rights-of-way shall not be delayed by work authorized by this subchapter.
(N) Special exceptions. Louisville Metro may grant a special exception to the requirements of this subchapter 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 Louisville Metro; 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 Public Works and Assets Department.
(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 Public Works and Assets Department, 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 Public Works and Assets Department, within such time period as may be specified by Public Works and Assets Department. If the pavement is not restored as specified by Public Works and Assets Department within the time period specified by Public Works and Assets Department, and unless delayed by a strike or conditions beyond franchisee's control, Louisville Metro 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 Louisville Metro, shall be assessed against franchisee.
(1994 Jeff. Code, § 116A.03) (Jeff. Ord. 10-2002, adopted and effective 3-12-2002; Lou. Metro Am. Ord. No. 152-2003, approved 8-29-2003; Lou. Metro Am. Ord. No. 277-2007, approved 12-20-2007; Lou. Metro Am. Ord. No. 36-2014, approved 3-19-2014)
Bookmark§ 116.73 MISCELLANEOUS.
(A) Administration of franchise. Louisville Metro shall be responsible for the continued administration of this subchapter and any franchises granted hereunder.
(B) Non-enforcement by Louisville Metro. A franchisee shall not be relieved of its obligation to comply with any of the provisions of this subchapter or its applicable franchise by reason of any failure of Louisville Metro to enforce prompt compliance.
(C) Publication of notices. A franchisee shall be responsible for all costs of publication that may be required with respect to its franchise or any amendments or renewals thereto.
(D) Severability. If any material provision of this subchapter or of any franchise 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 this subchapter or the franchise, and, to the extent possible, such holding shall not affect the validity and enforceability of all other provisions herein or therein.
(1994 Jeff. Code, § 116A.04) (Jeff. Ord. 10-2002, adopted and effective 3-12-2002; Lou. Metro Am. Ord. No. 152-2003, approved 8-29-2003; Lou. Metro Am. Ord. No. 277-2007, approved 12-20-2007)
Bookmark§ 116.74