(a) 
In the exercise of governmental functions, the city has first priority over all other uses of the public rights-of-way. The city reserves the right to lay sewer, gas, water, and other pipe lines or cables and conduits, and to do underground and overhead work, and attachments, restructuring, or changes in aerial facilities in, across, along, over, or under a public street, alley, or public rights-of-way occupied by a person, and to change the curb, sidewalks, or the grade of streets or rights-of-way.
(b) 
The city shall assign the location in or over the public rights-of-way among competing users of the public rights-of-way with due consideration to the public health and safety considerations of each user type, and to the extent the city can demonstrate that there is limited space available for additional users, may limit new users, as allowed under state or federal law.
(c) 
If the city authorizes abutting landowners to occupy space under the surface of any public street, alley, or public rights-of-way, the grant to an abutting landowner shall be subject to the rights of the previously authorized user of the public rights-of-way. If the city closes or abandons a public right-of-way that contains a portion of a user’s facilities, the city shall close or abandon such public right-of-way subject to the rights of the user, provided the user has a current registration.
(d) 
If the city gives written notice, a right-of-way user shall, at its own expense, temporarily or permanently, remove, relocate, change, or alter the position of user’s facilities that are in the public rights-of-way within one hundred twenty (120) days, unless a different schedule is approved by the city administrator. For projects expected by the city to take longer than 120 days to remove, change or relocate, the city will confer with the User before determining the alterations to be required and the timing thereof. The city shall give notice whenever the city has determined that removal, relocation, change, or alteration is reasonably necessary for the construction, operation, repair, maintenance, or installation of a city governmental public improvement in the public rights-of-way. This section shall not be construed to prevent a right-of-way user’s recovery of the cost of relocation or removal from private third parties who initiate the request for relocation or removal, nor shall it be required if improvements are solely for beautification purposes without prior joint deliberation and agreement with the person.
(e) 
If the user fails to relocate facilities in the time allowed by the city in this section, the user may be subject to liability to the city for such delay and as set forth in this city code, now or hereafter enacted. Additionally, the user may be denied any new permits until the relocation is complete.
(f) 
Notwithstanding anything in subsection (d) above, the city administrator and a person may agree in writing to different time frames than those provided above if circumstances reasonably warrant such a change.
(g) 
Any right-of-way user trimming trees in the city’s right-of-way shall apply for and receive a permit from the city before performing any tree trimming. All tree trimming shall be in compliance with article 24.04 and all other ordinances and regulations of the city. The user shall be required to remove trimmings within 24 hours; provided, however, if any trimmings affect right-of-way use, said trimmings must be removed immediately. If said trimmings are not removed, the city may remove the trimmings or have them removed, and upon receipt of a bill from the city, the person shall promptly reimburse the city for all costs incurred within thirty (30) calendar days. Users shall not be responsible for tree trimming or removal, except as to the work required to construct, maintain, or restore utility service.
(h) 
Users shall temporarily remove, raise, or lower its aerial facilities to permit the moving of houses or other bulky structures, if the city gives written notice of not less than 48 hours. The expense of these temporary rearrangements shall be paid by the party or parties requesting and benefiting from the temporary rearrangements. The person may require prepayment or prior posting of a bond from the party requesting the temporary move.
(i) 
To the extent applicable, directions of the city shall be followed, including but not limited to “standard details” and “standards for right-of-way easement construction” as those requirements currently exist or as may be amended, updated or supplemented from time to time.
(j) 
To the extent applicable, all of the requirements or conditions for construction and occupancy of the right-of-way shall continue during the entire time that the installed facilities remain in the right-of-way.
(Ordinance 352 adopted 2/14/18)
(a) 
A person shall obtain and maintain insurance in the amounts reasonably prescribed by the city with an insurance company licensed to do business in the state reasonably acceptable to the city. As a condition of registration and prior to construction, an applicant must provide, and users must maintain, acceptable proof of liability insurance in the total amount of six million dollars ($6,000,000.00); one million dollars ($1,000,000.00) primary plus five million dollars ($5,000,000.00) umbrella, or other provisions as acceptable to the city administrator. The city reserves the right to review the insurance requirements and to reasonably adjust insurance coverage and limits when the city administrator determines that changes in statutory law, court decisions, or the claims history of the industry or the person require adjustment of the coverage.
(b) 
The coverage must be on an “occurrence” basis and must include coverage for personal injury, contractual liability, premises liability, medical damages, underground, explosion and collapse hazards, and worker’s compensation as required by law.
(c) 
Each policy must include a cancellation provision in which the insurance company is required to notify the city in writing not fewer than thirty (30) days before canceling, failing to renew, or reducing policy limits.
(d) 
For purposes of this section, the city will accept certificates of self-insurance issued by the state or letters written by the person in those instances where the state does not issue such letters, which provide the same coverage as required herein. However, for the city to accept such letters, the person must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the city, based on financial information requested by and furnished to the city.
(e) 
A person shall furnish, at no cost to the city, copies of certificates of insurance evidencing the coverage required by this section to the city, unless the city requires another form of legally binding proof of insurance. If the city requests a deletion, revision or modification, a person shall exercise reasonable efforts to pay for and to accomplish the change.
(f) 
An insurance certificate shall contain the following required provisions:
(1) 
Name the city and its officers, employees, board members, and elected representatives as additional named insureds for all applicable coverage;
(2) 
Provide for 30 days’ notice to the city for cancellation, nonrenewal, or material change; and
(3) 
Provide that notice of claims shall be provided to the city administrator by certified mail.
(g) 
All persons utilizing the right-of-way shall file and maintain proof of insurance with the city administrator. An insurance certificate obtained in compliance with this section is subject to city approval. The city may require the certificate to be changed to reflect changing liability limits. A person shall immediately advise the city attorney of actual or potential litigation that may develop which may affect an existing carrier’s obligation to defend and indemnify.
(h) 
An insurer has no right of recovery against the city. The required insurance policies shall protect the person and the city. The insurance shall be primary coverage for losses covered by the policies.
(i) 
The policy clause “other insurance” shall not apply to the city if the city is an insured under the policy.
(j) 
Person shall pay premiums and assessments. A company which issues an insurance policy has no recourse against the city for payment of a premium or assessment. Insurance policies obtained by a person must provide that the issuing company waives all right of recovery by way of subrogation against the city in connection with damage covered by the policy.
(Ordinance 352 adopted 2/14/18)
(a) 
To the extent authorized by law, each person placing facilities in the public rights-of-way shall agree to, promptly defend, indemnify, and hold the city harmless from and against all damages, costs, losses, or expenses (1) for the repair, replacement, or restoration of city’s property, equipment, materials, structures and facilities which are damaged, destroyed, or found to be defective as a result of the person’s acts or omissions, (2) from and against any and all claims, demands, suits, causes of action, and judgments for (A) damage to or loss of the property of any person (including, but not limited to the person, its agents, officers, employees, and subcontractors, city’s agents, officers, and employees, and third parties); and/or (B) death, bodily injury, illness, disease, loss of services, or loss of income or wages to any person (including, but not limited to the agents, officers, and employees of the person, person’s subcontractors and city, and third parties), arising out of, incident to, concerning, or resulting from the negligent or willful act or omissions of the person, its agents, employees, and/or subcontractors, in the performance of activities pursuant to this article.
(b) 
This indemnity provision shall not apply to any liability resulting from the negligence or willful misconduct of the city, its officers, employees, agents, contractors, or subcontractors.
(c) 
The provisions of this indemnity are solely for the benefit of the city and is not intended to create or grant any rights, contractual or otherwise, to any other person or entity.
(Ordinance 352 adopted 2/14/18)
(a) 
Any person doing work in the city right-of-way shall properly install, repair, upgrade and maintain facilities.
(b) 
Facilities shall be considered to be improperly installed, repaired, upgraded or maintained if:
(1) 
The installation, repairs, upgrade or maintenance endangers people or property;
(2) 
The facilities do not meet the applicable city code;
(3) 
The facilities are not capable of being located using standard practices;
(4) 
Underground facilities that are installed less than twenty-four (24) inches in depth;
(5) 
Facilities, or construction in regard to placement of said facilities, that remains incomplete or hazardous after construction work is finished or time for completion has passed, including but not limited to holes in paved areas or ground, handholes or manholes that are improperly sealed, and broken equipment or any other incomplete or hazardous condition.
(6) 
The facilities are not located in the proper place at the time of construction in accordance with the approved permit or directions provided by the city administrator;
(7) 
The facilities were not properly and timely relocated in accordance with the requirements of this chapter; or
(8) 
The facilities are unsightly, dangerous or in violation of any city code.
(c) 
Facilities will be considered improperly installed if said facilities cause any interference with city public safety radio system, traffic signal light system, city traffic observation video cameras or other communications components.
(Ordinance 352 adopted 2/14/18)
(a) 
Users of the right-of-way shall restore property affected by construction of facilities to a condition that is equal to or better than the condition of the property prior to the performance of the work. Restoration must be approved by the city administrator.
(b) 
Restoration must be to the reasonable satisfaction of the city administrator and the property owner. The restoration shall include, but not be limited to:
(1) 
Replacing all ground cover with the type of ground cover damaged during work or better either by sodding or seeding, as directed by city administrator;
(2) 
Installation of all manholes and handholes, as required;
(3) 
Backfilling and compacting all bore pits, potholes, trenches or any other holes shall be filled in daily, unless other safety requirements are approved by the city administrator;
(4) 
Leveling of all trenches and backhoe lines;
(5) 
Restoration of excavation site to city specifications; and
(6) 
Restoration of all landscaping, ground cover, and sprinkler systems.
(c) 
All locate flags and markings shall be removed during the clean-up progress by the permittee or contractor at the completion of the work.
(d) 
Restoration must be made in a timely manner as specified by approved city schedules and to the satisfaction of city administrator. If restoration is not satisfactory and performed in a timely manner all work in progress, except that related to the problem, including all work previously permitted but not complete may be halted and a hold may be placed on any permits not approved until all restoration is complete.
(e) 
If a person fails to restore property as set out in this section, the city shall give five (5) days written notice to the person at the address shown on the permit. If the person does not initiate repairs during the five-day period, or fails to complete the repairs within thirty (30) days, thereafter the city may elect to repair such portion of the right-of-way as may have been disturbed by the person, its contractors, or agents at the cost of the person performing the right-of-way work. These time periods may be shortened or waived in cases of a threat to public health, safety or welfare. Upon receipt of an invoice from the city, the person will reimburse the city for the costs so incurred no later than thirty (30) calendar days from the date of the city invoice.
(f) 
Should the city reasonably determine, within two (2) years from the date of the completion of the repair work, that any of the said restoration work failed to meet the existing standards of the city, the person shall perform such additional restoration work to the satisfaction of the city, subject to all city remedies.
(g) 
Notwithstanding any of the above sections, if the city determines that the failure of the person to properly repair or restore the right-of-way constitutes a threat to the public health, safety or welfare, the city may undertake emergency repairs and restoration efforts. The city may attempt to provide emergency notice to the person responsible, but is not obligated to do so. The right-of-way user shall promptly reimburse the city for all costs incurred by the city within thirty (30) calendar days from the date of the city invoice.
(Ordinance 352 adopted 2/14/18)
(a) 
If any of the provisions of this chapter are not followed, a permit may be revoked by the city administrator. If a person has not followed the terms and conditions of this chapter in work done pursuant to a prior permit, new permits may be denied or additional terms required.
(b) 
If a permit is denied upon initial submission for incompleteness or for an issue which is capable of correction, the applicant may complete or correct the application and resubmit the application. Applications not resubmitted within thirty-one (31) calendar days shall be considered withdrawn.
(Ordinance 352 adopted 2/14/18)
(a) 
An Applicant may appeal a denial or revocation of permit to the city administrator. Appeal shall be filed with the city administrator within five (5) calendar days from the date of the decision being appealed.
(b) 
A denial or revocation will be upheld unless a person can show that there is an error and that the person was following all of the requirements of this chapter and all right-of-way engineering requirements.
(Ordinance 352 adopted 2/14/18)
The city may perform inspections of any right-of-way work, including installations, maintenance, modifications or any other right-of-way work, whether such work is subject to permit requirements or allowed to be done without a permit. The city may perform visual inspections of any right-of-way work located in the right-of-way as the city deems appropriate without notice. If the inspection requires physical contact with right-of-way work, the city may provide the right-of-way user with notice prior to said inspection. Right-of-way user may have a representative present during such inspection. In the event of an emergency, the city may, but is not required to, notify the right-of-way user prior to the inspection. The city may take any needed action to remediate an emergency. The city shall notify the right-of-way user as soon as practical after said remediation.
(Ordinance 352 adopted 2/14/18)
(a) 
Duty to remove.
A person that has placed facilities in the right-of-way shall remove said facilities and related equipment when such facilities are abandoned regardless of whether or not it receives notice from the city. If removal of facilities would cause damage, particularly in regard to underground facilities, this requirement may be waived by the city.
(b) 
Time for removal.
(1) 
The city may notify the person that said facilities must be removed immediately when necessary to ensure public health, safety, and welfare.
(2) 
If immediate removal is not required, the removal must be completed within the time set forth in the written notice to remove from the city and if no time is set out, then within ninety (90) days for the facilities and related equipment being abandoned.
(3) 
If the facilities are not removed after the ninety (90) day notice to remove, the city may remove the facilities thirty (30) days after notice of a final finding of abandonment.
(4) 
When a person removes, or abandons permanent structures in the right-of-way, the person shall notify the city secretary in writing of such removal or abandonment and shall file with the city secretary the location and description of each facility and ground equipment removed or abandoned.
(5) 
The city administrator may require the person to complete additional remedial measures necessary for public safety and the integrity of the right-of-way.
(6) 
If in the judgment of the city, removal of underground facilities would cause damage, this requirement may be waived.
(c) 
Deemed abandoned.
Facilities may be deemed abandoned as set out in this Chapter. Additionally, facilities may be deemed abandoned if:
(1) 
A person does not relocate facilities as set out in section 34.05.001 “conditions of public right-of-way occupancy.”
(2) 
A person does not correct or abate improperly installed facilities as set out in section 34.05.004 “improperly installed facilities.”
(3) 
A person fails to maintain the registration requirements set forth in this chapter.
(4) 
A person utilizing the right-of-way cannot be found or contacted.
(5) 
A person utilizing the right-of-way fails to pay the required compensation.
(6) 
A person utilizing the right-of-way fails to comply with the requirements of this chapter after being given due notice of any deficiencies. The notice requirement shall only apply to persons who have maintained the required registration as set out in this chapter and are capable of being contacted.
(Ordinance 352 adopted 2/14/18)
(a) 
The underground placement of facilities is encouraged.
(b) 
Facilities shall be installed underground where existing utilities are already underground.
(c) 
Underground conduits and ducts shall be installed in the public rights-of-way between the adjacent property line and curbline unless otherwise directed by the city.
(d) 
Conduits and ducts shall be installed parallel with the curbline and cross the public rights-of-way perpendicular to the public rights-of-way centerline unless otherwise directed by the city.
(e) 
Ducts and conduits shall be installed by trenchless excavation or directional boring. Trenchless excavation shall be used to place facilities under paved public rights-of-way centerline unless otherwise directed by the city.
(Ordinance 352 adopted 2/14/18)
User shall make citizen satisfaction a priority in using the right-of-way. User shall train its employees to be customer service-oriented and to positively and politely interact with citizens when dealing with issues pertaining to its facilities and related ground equipment in the right-of-way. User’s employees shall be clean, courteous, efficient, and neat in appearance and committed to offering the highest quality of interaction with the public. If, in the opinion of the city administrator, user is not interacting in a positive and polite manner with citizens, the city administrator may request user to take all remedial steps to conform to these standards.
(Ordinance 352 adopted 2/14/18)
(a) 
User shall post and maintain legible identification showing its name, location identifying information, and emergency telephone number on each installed facility, node, pole, including in an area on a cabinet of a facility that is visible to the public. Signage required under this section shall not exceed 4" x 6", unless otherwise required by law (e.g. RF ground notification signs) or the city administrator.
(b) 
Except as required by laws or by the utility pole owner, user shall not post any other signage or advertising on the facilities or equipment.
(Ordinance 352 adopted 2/14/18)
As soon as practical, but not later than fourteen (14) calendar days from the date user receives notice thereof, user shall remove all graffiti on any of its facilities and related ground equipment located in the right-of-way. The foregoing shall not relieve the user from complying with any city graffiti or visual blight ordinance or regulation.
(Ordinance 352 adopted 2/14/18)
(a) 
A person may file a request with the city council to use alternate means or methods in right-of-way construction or maintenance. In determining whether any requirement under this section may be waived or if an alternate method or means may be used, the city council may consider all reasonable factors, including but not limited to:
(1) 
Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable increase in risk;
(2) 
Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable increase of service interruption;
(3) 
Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable increase in potential for liability for accidents;
(4) 
Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable delay in construction;
(5) 
Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable delay in availability of services; or
(6) 
To any other unreasonable technical or economic burden.
(b) 
There shall be no right to receive permission to use an alternative means or method and denial by the city council shall be final.
(Ordinance 352 adopted 2/14/18)
The city may institute all appropriate legal action to prohibit any person from knowingly using the public rights-of-way unless person has complied with the terms of this article.
(Ordinance 352 adopted 2/14/18)