[Ord. No. 2195 §2, 8-1-2005]
A.
The
right-of-way user shall coordinate the placement of facilities in
a manner that minimizes adverse impact on any public improvement or
other users as reasonably determined by the City. Notwithstanding
any other provision to the contrary, to the full extent permitted
by law, all right-of-way users shall be subject to zoning, safety
and other ordinances of the City irrespective of their status as a
regulated public utility.
B.
The
City, through its Public Works Director, shall have the right to review
the location, design and nature of the facility prior to installation.
C.
The
right-of-way user shall not interfere with or alter the facilities
and structures of the City or other right-of-way users without their
permission. Such permission shall be obtained in writing prior to
work or disturbance in any manner and shall be applied for in written
application to the Public Works Director at least thirty (30) days
prior to anticipated work associated with such request. If and when
the City requires or negotiates to have a right-of-way user cease
using its existing poles and to relocate its facilities underground,
all other right-of-way users using the same poles shall also relocate
their facilities underground at the same time. The cost of such relocation
shall be borne in accordance with this Chapter and the PSC approved
applicable tariff governing that right-of-way user.
D.
The
right-of-way user shall cooperate promptly and fully with the City
and take all reasonable measures necessary to provide accurate and
complete on-site information regarding the nature and location of
its facilities within the right-of-way, both underground and overhead,
when requested by the City or its authorized agent for a public improvement.
Such location and identification shall be at the sole expense of the
right-of-way user without any expense to the City, its employees,
agents or authorized contractors.
E.
Unless
otherwise agreed to by the City and the right-of-way user by license,
agreement or permit, the City shall not be liable for any damage to
or loss of any of the right-of-way user's facilities within the right-of-way
unless the damage is the result of the sole negligence or willful,
intentional or malicious acts or omissions of the City.
[Ord. No. 2195 §2, 8-1-2005]
In the event that the right-of-way user shall sell, lease, assign,
sublet or dispose of its facilities, or any portion thereof, that
are located in the right-of-way or any right, title or interest in
the same, or transfer any rights granted by the City to any person
either by forced or involuntary sale, or by ordinary sale, consolidation
or otherwise, the right-of-way user shall notify the Public Works
Director in writing at least thirty (30) days prior to such sale,
lease, assign, consolidation, transfer, sublet or disposition of its
facilities. In such case, the buyer, transferee, lessee or assignee
shall be subject to all provisions of this Chapter, including the
registration requirements. This provision shall not apply to the transfer
of facilities or rights subject to a franchise which may only be transferred
with the consent of the City. A right-of-way user may permit and has
the authority to sell, sublet or lease any use of excess capacity
and sell services for resale to any reseller service provider providing
service within the City, including the right-of-way user's subsidiary
or affiliate.
[Ord. No. 2195 §2, 8-1-2005]
A.
A right-of-way
user shall promptly remove, relocate or adjust any facilities located
in the right-of-way as directed by the City for a public improvement
or as necessary to eliminate a threat to public safety. Such removal,
relocation or adjustment shall be performed by the right-of-way user
at the right-of-way user's sole expense without expense to the City.
B.
If
any facilities are not relocated in accordance with this Section,
the City or its contractors may relocate the facilities. The right-of-way
user shall be liable to the City for any and all costs incurred by
the City.
[Ord. No. 2195 §2, 8-1-2005]
A.
A right-of-way
user owning abandoned facilities in the right-of-way must notify the
City of its intent to abandon the facilities and must either:
1.
Remove its facilities and replace or restore any damage or disturbance
caused by the removal at its own expense. The Public Works Director
may allow underground facilities, or portions thereof, to remain in
place if the Public Works Director determines that it is in the best
interest of public safety to do so. At such time the City may take
ownership and responsibility of such abandoned facilities left in
place; or
2.
Provide information satisfactory to the City that the right-of-way
user's obligations for its facilities in the right-of-way have been
lawfully assumed by another authorized right-of-way user; or
3.
Submit to the City a proposal and instruments for transferring ownership
of its facilities to the City. If the right-of-way user proceeds under
this Subsection, the City may, at its option, purchase the equipment,
require the right-of-way user, at its own expense, to remove it or
require the right-of-way user to post a bond in an amount sufficient
to reimburse the City for reasonable anticipated costs to be incurred
to remove the facilities, except as otherwise provided herein.
B.
If
the City discovers abandoned facilities in its right-of-way and the
owner of the abandoned facilities fails to respond within thirty (30)
days to a written notice sent by the City stating that the City considers
the facilities abandoned, or the City is unable to locate the owner
of the abandoned facilities after reasonable attempts, the City shall
deem the facilities to be abandoned, unless the City receives confirmation
that the right-of-way user intends to use the facilities. Abandoned
facilities are deemed to be a nuisance. The City may exercise any
remedies or rights it has at law or in equity including, but not limited
to:
[Ord. No. 2195 §2, 8-1-2005]
Communications antennae, antennae structures and ground-mounted
communications equipment (other than poles, wires and underground
conduit) shall not be placed in the right-of-way except as may be
permitted by the City's ordinances and regulations relating to placement
of communications antennae, structures and towers, and further provided
that the terms and conditions of such antennae, including design,
number and location, and compensation or reimbursement of costs, if
any, and other reasonable considerations are approved by agreement
approved by the Board of Aldermen. All such decisions shall be made
on a competitively neutral and non-discriminatory manner.
[Ord. No. 2195 §2, 8-1-2005]
A.
The
right-of-way user shall be liable for any damages to facilities due
to excavation or work performed prior to obtaining the location of
all facilities in the area in which the excavation or work is to be
performed or for any damage to facilities that have been properly
identified prior to excavation or work. The right-of-way user shall
not make or attempt to make repairs, relocation or replacement of
damaged or disturbed facilities without the approval of the owner
of the facilities. The right-of-way user shall immediately notify
the owner of the facilities and the Public Works Director or the Police
Department in the event of such damage to facilities.
B.
The
right-of-way user shall be responsible for removing debris from the
right-of-way. If the right-of-way user fails to remove debris from
the right-of-way, the right-of-way user shall be responsible for damages
to the City or its contractors resulting from such failure and shall
indemnify the City and its contractors as provided herein and pay
the costs for remedying such failure.
C.
In
the event the right-of-way user severely disturbs or damages the root
structure of any tree in the right-of-way to the detriment of the
health and safety of the tree and having a noticeable impact upon
the health of the tree as determined by the designated City arborist,
the right-of-way user shall be required to remove and replace the
tree with another tree of a type and size acceptable to the Public
Works Director at the right-of-way user's cost. Further, in review
of the right-of-way user's plan, the Public Works Director, in his
or her discretion, may require the right-of-way user to directionally
bore around any tree in the right-of-way.
D.
After
any excavation or work, the right-of-way user shall, at its expense,
restore all portions of the right-of-way to the same condition or
better condition than it was prior to the excavation or work. If the
right-of-way user fails to restore the right-of-way in the manner
and to the condition required by the Public Works Director or fails
to satisfactorily and timely complete all restoration, the City, at
its option, may perform its own restoration excavation or work and
prosecute same to completion, by contract or otherwise. The right-of-way
user and its surety shall be liable to the City for its actual costs
of such restoration, including the value of any time or overtime incurred
through the labor of City employees, the value of the use of City
equipment and the cost of City materials used in the restoration project.
E.
In
restoring the right-of-way, the right-of-way user shall guarantee
its excavation or work and shall maintain it for a period of forty-eight
(48) months or for the maximum period of time allowed by law, whichever
is greater, following its completion. During said guarantee period
the right-of-way user shall, upon notification from the Public Works
Director, correct all restoration excavation or work to the extent
necessary using any method as required by the Public Works Director.
Said excavation or work shall be completed within a reasonable time,
not to exceed thirty (30) calendar days, of the receipt of notice
from the Public Works Director (not including days during which work
cannot be done because of circumstances constituting force majeure
or days when work is prohibited as unseasonable or unreasonable).
In the event the right-of-way user is required to perform new restoration
pursuant to the foregoing guarantee, the Public Works Director shall
have the authority to extend the guarantee period for such new restoration
for up to an additional forty-eight (48) months, or other greater
period allowed by law, from the date of the new restoration, if the
Public Works Director determines there was action by the right-of-way
user not to comply with the conditions of the right-of-way permit
and any restoration requirements. The guarantee period shall be applicable
to failure of the pavement surface as well as failure below the pavement
surface.
