All facilities shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a franchise agreement:
A. 
All new telecommunication facilities shall be installed underground unless the Public Works Director determines that extraordinary circumstances require overhead installation.
B. 
A grantee shall install its utility facilities within an existing underground duct or conduit whenever excess capacity exists within such utility facility.
C. 
A grantee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if surplus space is available.
D. 
Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the City, a grantee with permission to occupy the same public way must also locate its utility facilities underground.
E. 
Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public way of the City, a grantee that currently occupies the same public way shall relocate its facilities underground within a reasonable period of time, which shall not be later than the end of the grant term. Absent extraordinary circumstances or undue hardship as determined by the City Engineer, such relocation shall be made concurrently to minimize the disruption of the public ways.
F. 
All new utility facilities shall be installed so as to have no adverse effect on motor vehicle or pedestrian safety and access, or on the operation, maintenance and aesthetic quality of the public ways system.
(Ord. 13-07, 2013)
All franchise grantees shall, before commencing any construction in the public ways, comply with all locate requirements of the Klamath Utilities Coordinating Council.
(Ord. 13-07, 2013)
All franchise grantees are required to obtain construction permits for utility facilities as required in Article 10. However, nothing herein shall prohibit the City and a grantee from agreeing to alternative plan review, permit and construction procedures in a franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
(Ord. 13-07, 2013)
No franchise grantee may locate or maintain its utility facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by the grantee, temporarily or permanently, as determined by the City Public Works Director.
(Ord. 13-07, 2013)
No franchise grantee or any person acting on a grantee's behalf shall take any action or permit any action to be done which may impair or damage any City property, public ways of the City or other property located in, on or adjacent thereto.
(Ord. 13-07, 2013)
Unless otherwise provided in a franchise agreement, no franchise grantee, nor any person acting on the grantee's behalf, shall commence any non-emergency work in or about the public ways of the City without 10 working days' advance written notice to the City Public Works Director.
(Ord. 13-07, 2013)
In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the K.U.C.C. in advance and the City Public Works Director as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable.
(Ord. 13-07, 2013)
Each franchise grantee shall maintain its facilities located in the public ways in good and safe condition and in a manner that complies with all applicable Federal, State and local requirements.
(Ord. 13-07, 2013)
Within 30 days following written notice from the City Public Works Director, a franchise grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any utility facilities within the public ways, at no cost to the City, whenever the City Public Works Director shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
A. 
The construction, repair, maintenance or installation of any City or other public improvement in or upon the public ways.
B. 
The operations of the City or other governmental entity in or upon the public ways.
(Ord. 13-07, 2013)
Within 30 days following written notice from the City Public Works Director, any grantee, or other person that owns, controls or maintains any unauthorized system, facility or related appurtenances within the public ways of the City shall, at its own expense, remove such facilities or appurtenances from the public ways of the City. A system or facility is unauthorized and subject to removal in the following circumstances:
A. 
Upon expiration or termination of the grantee's franchise.
B. 
Upon abandonment of a facility within the public ways of the City.
C. 
If the system or facility was constructed or installed without the prior grant of a franchise.
D. 
If the system or facility was constructed or installed without the prior issuance of a required construction permit.
E. 
If the system or facility was constructed or installed at a location not permitted by the grantee's franchise.
(Ord. 13-07, 2013)
The City retains the right and privilege to cut or move any utility facilities located within the public ways of the City, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency.
(Ord. 13-07, 2013)
Unless directly and proximately caused by the willful, intentional or malicious acts by the City, the City shall not be liable for any damage to or loss of any utility facility within the public ways of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public ways by or on behalf of the City.
(Ord. 13-07, 2013)
A. 
When a franchise grantee, or any person acting on its behalf, does any work in or affecting any public ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to as good a condition as existed before the work was undertaken, unless otherwise directed by the City Public Works Director.
B. 
If weather or other conditions do not permit the complete restoration required by this section, the grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the grantee's sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
C. 
A grantee or other person acting in its behalf shall use suitable barricades, flags, flaggers, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property.
(Ord. 13-07, 2013)
Each franchise grantee shall provide the City Public Works Director with an accurate map or maps in an electronic geographic information system (GIS) format certifying the location of all existing underground and all new utility facilities within the public ways. Each grantee shall provide updated maps annually.
(Ord. 13-07, 2013)
Within 10 days of a written request from the City Manager, each franchise grantee shall furnish the City with information sufficient to demonstrate:
A. 
That grantee has complied with all requirements of the Franchise Right-of-Way Act, Sections 7.370 to 7.499.
B. 
That all fees due the City in connection with the franchised services and utility facilities provided by the grantee have been properly collected and paid by the grantee.
C. 
All books, records, maps and other documents, maintained by the grantee with respect to its facilities within the public ways shall be provided to the City.
(Ord. 13-07, 2013)
Unless otherwise provided in a franchise agreement, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies or self-insurance insuring the grantee and the City, and its elected and appointed officers, officials, agents and employees as additional insureds:
A. 
Comprehensive general liability insurance or self-insurance with limits not less than is determined by the City Manager to be sufficient.
B. 
The self-insurance or liability insurance policies required by this section shall be maintained by the grantee throughout the term of the franchise, and such other period of time during which the grantee is operating without a franchise hereunder, or is engaged in the removal of its utility facilities. Each such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be cancelled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the City Manager of such intent to cancel or not to renew."
C. 
Within 60 days after receipt by the City of said notice, and in no event later than 30 days prior to said cancellation, the grantee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this section.
D. 
A certificate of self-insurance as filed with and approved of by the State of Oregon shall be filed with the City Manager.
(Ord. 13-07, 2013; Ord. 19-12 § 1, 2019)
Each franchise agreement shall include, to the extent permitted by law, grantee's express undertaking to defend, indemnify and hold the City and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its utility facilities, and in providing or offering services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this Act or by a grant agreement made or entered into pursuant to this Act.
(Ord. 13-07, 2013)
Before a franchise granted pursuant to this Act is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the City as may be required by this Act or by an applicable franchise agreement.
(Ord. 13-07, 2013)
Unless otherwise provided in a franchise agreement, a performance bond written by a corporate surety acceptable to the City equal to at least 100% of the estimated cost of constructing grantee's utility facilities within the public ways of the City shall be deposited before construction is commenced where such estimated construction cost exceeds $10,000.00.
A. 
The construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the City Public Works Director, including restoration of public ways and other property affected by the construction.
B. 
The construction bond shall guarantee, to the satisfaction of the City:
1. 
Timely completion of construction;
2. 
Construction in compliance with applicable plans, permits, technical codes and standards;
3. 
Proper location of the facilities as specified by the City;
4. 
Restoration of the public ways and other property affected by the construction;
5. 
The submission of "as-built" drawings after completion of the work as required by this Act;
6. 
Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.
C. 
The above bonding requirement shall be waived for those grantees that have a demonstrated five-year history of compliance with local rules and regulations in their use of the public ways. Such waiver shall continue until such time as they fail to demonstrate continued compliance.
(Ord. 13-07, 2013)
All grantees are required to cooperate with the City and with each other.
A. 
By February 1 of each year, grantees shall provide the City Public Works Director with a schedule of their proposed construction activities for the calendar year in, around or that may affect the public ways.
B. 
Each grantee shall meet with the City, other grantees and users of the public ways annually or as determined by the City Public Works Director to schedule and coordinate construction in the public ways.
C. 
All construction locations, activities and schedules shall be coordinated, as ordered by the City Public Works Director, to minimize public inconvenience, disruption or damages.
D. 
This section does not apply to on-demand construction in response to a single customer request for a service connection.
(Ord. 13-07, 2013)
A franchise granted by the City to use or occupy public ways of the City may be revoked for the following reasons:
A. 
Construction or operation in the City or in the public ways of the City without a franchise grant of authorization.
B. 
Construction or operation at an unauthorized location.
C. 
Misrepresentation or lack of candor by or on behalf of a grantee in any application to the City.
D. 
Abandonment of utility facilities in the public ways.
E. 
Failure to relocate or remove facilities as required in this Act.
F. 
Failure to pay compensation fees or costs when and as due the City.
G. 
Insolvency or bankruptcy of the grantee.
H. 
Violation of material provisions of this Act.
I. 
Violation of the material terms of a franchise agreement.
(Ord. 13-07, 2013)
In the event that the City Manager believes that grounds exist for revocation of a franchise, he or she shall give the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time not exceeding 30 days to furnish evidence:
A. 
That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.
B. 
That rebuts the alleged violation or noncompliance.
C. 
That it would be in the public interest to impose some penalty or sanction less than revocation.
(Ord. 13-07, 2013)
In the event that a grantee fails to provide evidence reasonably satisfactory to the City Manager as provided in Section 7.476, the Manager shall refer the apparent violation or non-compliance to the City Council. The City Council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.
(Ord. 13-07, 2013)
If persuaded that the grantee has violated or failed to comply with material provisions of this Act, or of a franchise agreement, the City Council shall determine whether to revoke the franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:
A. 
Whether the misconduct was egregious.
B. 
Whether substantial harm resulted.
C. 
Whether the violation was intentional.
D. 
Whether there is a history of prior violations of the same or other requirements.
E. 
Whether there is a history of overall compliance.
F. 
Whether the violation was voluntarily disclosed, admitted or cured.
(Ord. 13-07, 2013)