[Ord. No. 1681 §1(4.1), 12-17-2001]
A provider shall be subject to and comply with the additional or supplementary terms and conditions of the "ROW Ordinance", as may be amended from time to time, which is incorporated herein by reference and such provisions and the provisions of this Code shall be deemed a condition of any franchise and agreement. The provisions of this Article IV shall apply as provided herein to providers and, to the full extent permitted by law, additionally to all construction activities in public utility easements.
[Ord. No. 1681 §1(4.2), 12-17-2001]
A.
At least
thirty (30) days before the beginning of any installation, removal
or relocation of its facilities, the provider shall submit detailed
plans of the proposed action to the Community Development Director.
The Community Development Director shall, within thirty (30) days
of receipt of such plans, either approve the plans or inform the provider
of the reasons for disapproval. The provider shall designate a responsible
contact person with whom representatives of the Community Development
Director can communicate with on all matters relating to facilities
installation and maintenance.
1.
Prior
to any excavation within the rights-of-way, the provider shall obtain
a permit, pay all applicable fees and perform such work in accordance
with applicable provisions of the City ROW Ordinance and any subsequent
ordinances or regulations that may be adopted by the City regarding
excavation work.
2.
The
provider shall post a bond with the City in accordance with the City's
ordinances in an amount determined by the Community Development Director
to guarantee the timeliness and quality of any construction, repair
and restoration work, including damage to public or private property,
and to guarantee the removal of its facilities from the City's rights-of-way
should such removal be required upon the expiration of an agreement.
3.
Prior
to the commencement of any construction or alteration of its facilities
located in the rights-of-way, the provider shall furnish to the Community
Development Director a subsurface utility engineering study on the
proposed route of construction, expansion or alteration, which shall
consist of the following tasks:
a.
All
available plans, plats and other location data indicating the existence
and approximate location of all facilities along the proposed construction
route;
b.
Completion
of a visual survey and written record of the location and dimensions
of any above-ground features of any underground facilities along the
proposed construction route including, but not limited to, manholes,
valve boxes, utility boxes, post and visible street cut repairs;
c.
Plot
and incorporate the data obtained from completion of task (1) and
(2) above onto the provider's proposed system route maps, plan sheets
and computer aided drafting and design (CADD) files; and
d.
Provide
all such data collected into a CADD file, or other format as may be
identified by the Community Development Director, compatible with
that used by the Community Development Director and deliver a copy
to the Community Development Director.
[Ord. No. 1681 §1(4.3), 12-17-2001]
Each licensee or franchisee shall maintain and file with the
City updated maps, in such form as may be required by the Community
Development Director, providing the location and sufficient detail
of all existing and new facilities in the rights-of-way and such other
related information as required by the Community Development Director.
Such maps shall be updated and kept current with the City.
[Ord. No. 1681 §1(4.4), 12-17-2001]
Provider shall construct and maintain its facilities so as not
to interfere with other users of the rights-of-way. Except as may
otherwise be provided, the provider shall, prior to commencement of
work, execute a City-approved resident notification plan to notify
residents affected by the proposed work. All construction and maintenance
by provider or its subcontractors shall be performed in accordance
with industry standards.
[Ord. No. 1681 §1(4.5), 12-17-2001]
Provider shall not place or cause to be placed any sort of signs,
advertisements or other extraneous markings, whether relating to provider
or any other person or entity, on the public right-of-way except such
necessary minimal markings as approved by the City as are reasonably
necessary to identify the facilities for service, repair, maintenance
or emergency purposes or as may be otherwise required to be affixed
by applicable law or regulation.
[Ord. No. 1681 §1(4.6), 12-17-2001]
Unless otherwise approved in writing by the City in the attachment,
installation, removal, reattachment, reinstallation, relocation or
replacement or otherwise of the facilities, provider shall neither
remove, cut nor damage any trees or their roots in and along the streets,
alleys and public places of the City. Tree trimming and pruning may
be permitted to occur only after prior written notice to the City
and in conformance with the City's tree ordinance. The type and extent
of trimming and pruning shall be in accordance with the requirements
of the City.
[Ord. No. 1681 §1(4.7), 12-17-2001]
Prior to its installation of any facilities in the rights-of-way
and after it provides the City with its proposed plans for the facilities,
the City may in its discretion designate certain locations or facilities
in the rights-of-way to be excluded from use by provider for its facilities
including, but not limited to, ornamental or similar specially designed
street lights, or other facilities or locations which, in the reasonable
judgment of the Community Development Director, do not have electrical
service adequate or appropriate for the provider's facilities or cannot
safely bear the weight or wind loading thereof, or any other facility
or location that in the reasonable judgment of the Community Development
Director is incompatible with the proposed facilities or would be
rendered unsafe or unstable by the installation. The Community Development
Director may further exclude certain other facilities that have been
designated or planned for other use or are not otherwise available
for use by provider due to engineering, technological, proprietary,
legal, or other limitations or restrictions as may be reasonably determined
by the City. In the event such exclusions conflict with the reasonable
requirements of the provider, the City will cooperate in good faith
with provider to attempt to find suitable alternatives, if available,
provided that the City shall not be required to incur financial cost
nor require the City to acquire new locations for provider.
[Ord. No. 1681 §1(4.8), 12-17-2001]
The design, location and nature of all facilities shall be subject
to the review and approval of the Community Development Director.
Such review shall be based on non-discriminatory basis in application
of City policy and approvals shall not be unreasonably withheld. Except
as provided herein, all facilities constructed after the date of an
agreement shall be placed underground and in conduit, where capable.
Antenna or other facilities may be located above ground only if approved
by the Community Development Director for good cause and including
as may be specifically authorized in an exhibit, which shall be on
file in the City offices. Unless extraordinary circumstances exist,
good cause shall not include authorization for above-ground facilities
requiring new poles or major modification to existing above-ground
structures. Above-ground pedestals, vaults, antennae or other facilities
may be installed only if approved by the City where alternative underground
facilities are not feasible or where underground requirements are
otherwise waived pursuant to the provisions of this Subsection. Existing
conduit shall be used where feasible and available. Where reasonable
and appropriate and where adequate public rights-of-way exists, the
provider shall place above-ground facilities underground in conjunction
with City capital improvement projects and/or at specific locations
requested by the City provided that such placement is practical, efficient
and economically feasible. Unless specifically authorized herein or
otherwise by the City, wired access point antennae/towers located
on the rights-of-way or other City-owned or controlled property shall
not be authorized by an agreement but shall require a separate lease
or use agreement with the City. City height limitations, applicable
zoning restrictions, and general City policy with regard to all users
of the rights-of-way shall also be applicable to all facilities. The
Community Development Director may establish such regulations or policies
as may be deemed necessary or appropriate to effect this provision.
[Ord. No. 1681 §1(4.9), 12-17-2001]
Provider shall, prior to any excavation or installation within
the rights-of-way, provide sufficient notification and joint installation
opportunity on a shared-cost basis to potential users of the rights-of-way
as may be provided for by separate City policy. Such notification
and adopted policies shall be designed to maximize collocation of
providers, to minimize the disturbance to the rights-of-way, and maximize
its useable capacity. Provider shall not install new conduit or other
facilities in the rights-of-way where existing conduit is available
to provider that would reasonably avoid the need for new excavation
or overhead installations. Provider shall identify by mapping, as
required by the Community Development Director, the location and specifications
of all conduit available or dedicated for collocation.
[Ord. No. 1681 §1(4.10), 12-17-2001]
If any provider chooses to make its facilities physically available
for use by any other provider, it shall do so only under terms that
are fair and reasonable, competitively neutral and non-discriminatory,
and which do not prohibit or have the effect of prohibiting the ability
of any entity to provide any interstate or intrastate telecommunications
service under the circumstances. Provider shall further comply with
the facilities attachment requirements of Federal law codified at
Section 47 U.S.C. 224.
[Ord. No. 1681 §1(4.11), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]
Except if contrary to governing law, when provider installs
any new conduit, the provider shall simultaneously install sufficient
additional conduit or other related facilities ("excess conduit")
as may be determined by the Community Development Director and in
order to reasonably meet the needs of existing and future users of
the rights-of-way. The criteria for when such conduit will be required,
the amount of conduit to be required, management and ownership of
the excess conduit and financing of the excess conduit and related
matters shall be established by a separate City policy. Such policy
shall be publicly available and each agreement shall be deemed subject
to such applicable policies adopted or as may be amended. The excess
conduit shall be designed and installed in accordance with City specifications.
The City may reserve for its own purposes a portion of any excess
conduit dedicated to the City but shall make available any portion
not so reserved to any and all subsequent providers, or others as
determined by the City, on a non-discriminatory basis for fair and
reasonable compensation that shall be paid in addition to the franchise
or use fees. When sections of provider's conduit is installed simultaneously
with another provider, the cost of such sections of excess conduit
shall also be cost shared among each provider as may be established
by policy. The requirements herein shall be administered and applied
on a competitively neutral and non-discriminatory basis to maximize
the available space in the rights-of-way and designed to minimize
the total number of excavations and cost of total communications infrastructure
installation. No linear foot charge shall apply to any excess conduit
installed by provider and dedicated to the City.
[Ord. No. 1681 §1(4.12), 12-17-2001]
Upon expiration of an agreement, whether by lapse of time, by
agreement between the provider and the City, or by forfeiture thereof,
the provider shall remove, at its sole cost, from public property
any and all of its facilities that are the subject of an agreement
within a reasonable time after such expiration, not to exceed ninety
(90) days, and it shall be the duty of provider immediately upon such
removal to restore the right-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 the City. Notwithstanding the foregoing,
upon request of provider, the City may allow underground facilities
to be left in place when it is not practical or desirable to require
removal.
[Ord. No. 1681 §1(4.13), 12-17-2001]
Whenever the City shall in its exercise of the public interest
request of the provider the relocation or reinstallation of any of
its facilities, provider 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 said provider. Provider
shall, upon request of any other person requesting relocation of facilities
and holding a validly issued building or moving permit of the City,
and within forty-eight (48) hours prior to the date upon which said
person intends to exercise its rights under said permit, thereupon
temporarily raise, lower or relocate its wires or other facilities
as may be required for the person to exercise the rights under the
permit, and provider may require such permit holder to make payment
in advance for any expenses incurred by said provider pursuant to
said person's request.
[Ord. No. 1681 §1(4.14), 12-17-2001]
The provider shall have no remedy or recourse whatsoever against
the City for any loss, cost, expense or damage arising from any of
the provisions or requirements of any agreement or franchise, or because
of the enforcement thereof by said City, or for the failure of said
City to have the authority to grant all or any part of the herein
granted; provided, that said provider expressly acknowledges that
it accepted the rights herein granted in reliance upon its independent
and personal investigation and understanding of the power of authority
of said City to enter into the agreement or franchise herein with
provider; provided further, that the provider acknowledges by its
acceptance of said agreement that it has not been induced to enter
into an agreement or franchise upon any understanding or promise,
whether given verbally or in writing by or on behalf of said City,
or by any other person concerning any term or condition of an agreement
or franchise not expressed herein; provided further, that the provider
acknowledges by the acceptance of an agreement or franchise that it
has carefully read the provisions, terms and conditions hereof and
is willing to, and does accept, all of the risk attendant to said
provisions, terms and conditions.
[Ord. No. 1681 §1(4.15), 12-17-2001]
The provider shall be responsible for all reasonable costs borne
by the City that are directly associated with its installation, maintenance,
repair, operation, use and replacement of its facilities within the
rights-of-way that are not otherwise accounted for as part of the
permit fee established pursuant to the ROW Ordinance. All such costs
shall be itemized and the City's books and records related to these
costs shall be made available upon request to the provider. Provider
shall be responsible for its own costs incurred removing or relocating
its facilities when required by the City due to City requirements
relating to maintenance and use of the rights-of-way for City purposes.
[Ord. No. 1681 §1(4.16), 12-17-2001]
During the term of an agreement, the provider shall obtain and
maintain, at the provider's sole expense, all insurance and bonds
required by the ROW Ordinance or applicable agreement or franchise.
Nothing contained in this Code shall limit the provider's liability
to the City to the limits of insurance certified or carried.
