[R.O. 2010 §461.450; Ord. No. B2-01 §4.1, 2-19-2001]
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. (Insert ROW ordinance provisions in this Chapter at option of City.) 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.
[R.O. 2010 §461.460; Ord. No. B2-01 §4.2, 2-19-2001]
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 City Engineer. The City Engineer 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 City Engineer can communicate with on all matters relating to facilities installation and maintenance.
B. 
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.
C. 
The provider shall post a bond with the City in accordance with the City's ordinances in an amount determined by the City Engineer 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.
D. 
Prior to the commencement of any construction or alteration of its facilities located in the rights-of-way, the provider shall furnish to the City Engineer a subsurface utility engineering study on the proposed route of construction, expansion or alteration, which shall consist of the following tasks:
1. 
All available plans, plats and other location data indicating the existence and approximate location of all facilities along the proposed construction route;
2. 
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, posts and visible street cut repairs;
3. 
Plot and incorporate the data obtained from completion of Subsections (B) and (C) above, onto the provider's proposed system route maps, plan sheets and computer aided drafting and design (CADD) files; and
4. 
Provide all such data collected into a CADD file (or other format as may be identified by the City Engineer) compatible with that used by the City Engineer and deliver a copy to the City Engineer.
[R.O. 2010 §461.470; Ord. No. B2-01 §4.3, 2-19-2001]
Each licensee or franchisee shall maintain and file with the City updated maps, in such form as may be required by the City Engineer, providing the location and sufficient detail of all facilities existing in the rights-of-way on the effective date of any agreement or franchise, and those reasonably anticipated to be installed in each six (6) month period subsequent to the initial and updated filing, and such other related information as required by the City Engineer. Such maps shall be updated and kept current with the City.
[R.O. 2010 §461.480; Ord. No. B2-01 §4.4, 2-19-2001]
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.
[R.O. 2010 §461.490; Ord. No. B2-01 §4.5, 2-19-2001]
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.
[R.O. 2010 §461.500; Ord. No. B2-01 §4.6, 2-19-2001]
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 of the extent of trimming and pruning to be performed and the prior written approval thereof by the City. The type and extent of trimming and pruning shall be in accordance with the requirements of the City.
[R.O. 2010 §461.510; Ord. No. B2-01 §4.7, 2-19-2001]
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 City Engineer, 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 City Engineer is incompatible with the proposed facilities or would be rendered unsafe or unstable by the installation. The City Engineer 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.
[R.O. 2010 §461.520; Ord. No. B2-01 §4.8, 2-19-2001]
The design, location and nature of all facilities shall be subject to the review and approval of the City Engineer. Such review shall be based on non-discriminatory bases in application of City policy and approvals shall not be unreasonably withheld. (Option 1: 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 City Engineer for good cause and including as may be specifically authorized in an Exhibit attached hereto. 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. Option 2: Except as provided herein, all facilities constructed after the date of an agreement shall be placed underground and in conduit, where capable, unless existing above ground structures requiring no major modification are available. Major modifications of above ground structures to accommodate facilities or antenna or erection of new poles will be allowed only if approved by the City Engineer for good cause or as may be specifically authorized in an Exhibit attached hereto.) 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. The location, design and requirements for antennae in the rights-of-way shall additionally be subject to all specific ordinances, regulations or policies of the City generally applicable to the siting of antennae. Where reasonable and appropriate and where adequate public rights-of-way exist 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, antennae/towers having a height of forty (40) feet or greater located on the rights-of-way or antennae on 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 policies with regard to all users of the rights-of-way shall also be applicable to all facilities. The City Engineer may establish such regulations or policies as may be deemed necessary or appropriate to effect this provision.
[R.O. 2010 §461.530; Ord. No. B2-01 §4.9, 2-19-2001]
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 City Engineer, the location and specifications of all conduit available or dedicated for collocation. Any person unreasonably failing to respond to collocation opportunities or otherwise comply with this provision or policies adopted hereunder shall, unless good cause is found by the City, be precluded from use of the rights-of-way for a period of thirty (30) months at such locations that would reasonably have been accommodated by the collocation opportunity that was declined.
[R.O. 2010 §461.540; Ord. No. B2-01 §4.10, 2-19-2001]
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 47 U.S.C. Section 224.
[R.O. 2010 §461.550; Ord. No. B2-01 §4.11, 2-19-2001]
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 City Engineer 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 so as not to create an obstacle to entry in the market and 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.
[R.O. 2010 §461.560; Ord. No. B2-01 §4.12, 2-19-2001]
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. Provider shall further, unless otherwise consented to by the City, remove all facilities that have not been used for a period of more than one (1) year. 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.
[R.O. 2010 §461.570; Ord. No. B2-01 §4.13, 2-19-2001]
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.
[R.O. 2010 §461.580; Ord. No. B2-01 §4.14, 2-19-2001]
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 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 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 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 not expressed herein; provided further, that the provider acknowledges by the acceptance of an agreement 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. Nothing herein shall preclude provider from seeking injunctive or declaratory judgment relief against the City where such relief is otherwise available and the requirements therefor are otherwise satisfied; provided however, that the validity of an executed agreement shall not be subject to challenge.
[R.O. 2010 §461.590; Ord. No. B2-01 §4.15, 2-19-2001]
The provider shall be responsible for all reasonable costs borne by the City that are directly associated with provider's 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.
[R.O. 2010 §461.600; Ord. No. B2-01 §4.16, 2-19-2001]
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.