City of Grand Junction, CO General Right-of-Way Use and Construction

City Codes.

Grantee shall comply with all applicable City codes, including, without limitation, the International Building Code, International Fire Code, facilities in the right-of-way ordinance and applicable mechanical, zoning codes and development and regulations.

Tower Specifications.

Antenna supporting structures (towers) shall be designed for the proper loading as minimally specified by the Electronics Industries Association (EIA), as those specifications may be amended from time to time and City regulations. Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable City, State and federal codes and regulations.

Safety Codes.

Grantee shall comply with all applicable federal, State and City safety requirements, rules, regulations, laws and practices, and employ all necessary devices as required by applicable law during construction, operation and repair of its cable system. By way of illustration and not limitation, grantee shall comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards.

Sec. 10.8 Mapping.

Grantee shall comply with any generally applicable ordinances, rules and regulations of the City regarding mapping systems for users of the rights-of-way.

Sec. 10.9 Minimal interference.

Work in the right-of-way, on other public property, near public property, or on or near private property shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners and residents. Grantee’s cable system shall be constructed and maintained in such manner as not to interfere with sewers, water pipes or any other property of the City or with any other pipes, wires, conduits, pedestals, structures or other facilities that may have been laid in the rights-of-way by, or under, the City’s authority. The grantee’s cable system shall be located, constructed and maintained so as not to endanger or unreasonably interfere with the lives of persons, or to interfere with improvements the City may deem proper to make or to unnecessarily hinder or obstruct the free use of the rights-of-way or other public property, and shall not unreasonably interfere with the travel and use of public places by the public during the construction, repair, operation or removal thereof, and shall not obstruct or impede traffic. In the event of such interference, the City may require the removal or relocation of grantee’s lines, cables, equipment and other appurtenances from the property in question at grantee’s expense.

Sec. 10.10 Prevention of injury – Safety.

Grantee shall provide and use any equipment and facilities necessary to control and carry grantee’s signals so as to prevent injury to the City’s property or property belonging to any person. Grantee, at its own expense, shall repair, renew, change and improve its facilities to keep them in good repair, and safe and presentable condition. All excavations made by grantee in the rights-of-way shall be properly safeguarded for the prevention of accidents by the placement of adequate barriers, fences or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly designated by warning lights.

Sec. 10.11 Hazardous substances.

Grantee shall comply with any and all applicable laws, statutes, regulations and orders concerning hazardous substances relating to grantee’s cable system in the rights-of-way.

Upon reasonable notice to grantee, the City may inspect grantee’s facilities in the rights-of-way to determine if any release of hazardous substances has occurred, or may occur, from or related to grantee’s cable system. In removing or modifying grantee’s facilities as provided in this franchise, grantee shall also remove all residue of hazardous substances related thereto.

Grantee agrees to indemnify the City against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the City arising out of a release of hazardous substances caused by grantee’s cable system.

Sec. 10.12 Locates.

Prior to doing any work in the right-of-way, grantee shall give appropriate notices to the City and to the notification association established in C.R.S. Section 9-1.5-105, as such may be amended from time to time. Notice to the City shall be given pursuant to generally applicable City ordinance and/or regulations, by written notice to the City or its designee prior to the commencement of construction.

Sec. 10.13 Notice to private property owners.

Except in the case of an emergency involving public safety or service interruptions to a large number of subscribers, grantee shall give reasonable advance notice to private property owners or legal tenants of work on or adjacent to private property.

Sec. 10.14 Underground construction and use of poles.

When required by general ordinances, resolutions, regulations or rules of the City or applicable State or federal law, grantee’s cable system shall be placed underground at grantee’s expense, subject to applicable law. Placing facilities underground does not preclude the use of ground-mounted appurtenances.

Where electric, telephone and other above-ground utilities are installed underground at the time of cable system construction, or when all such wiring is subsequently placed underground, all cable system lines shall also be placed underground with other wire line service at no expense to the City or subscribers subject to applicable law, unless funding is generally available for such relocation to all users of the rights-of-way. Related cable system equipment, such as pedestals, must be placed in accordance with the City’s applicable code requirements and rules. In areas where either electric or telephone utility wiring is aerial, the grantee may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation. Nothing contained in this section shall require grantee to construct, operate, and maintain underground any ground-mounted appurtenances.

The grantee shall utilize existing poles and conduit wherever possible and reasonably practical.

(d)

In the event grantee cannot obtain the necessary poles and related facilities pursuant to a pole attachment agreement or conduit does not exist and only in such event, then it shall be lawful for grantee to make all needed excavations in the rights-of-way for the purpose of placing, erecting, laying, maintaining, repairing, and removing poles, supports for wires and conductors, and any other facility needed for the maintenance or extension of grantee’s cable system. All poles and conduit of grantee shall be located as reasonably designated by the proper City authorities.

(e)

This franchise does not grant, give or convey to the grantee the right or privilege to install its facilities in any manner on utility poles or right-of-way of the City or any other person. The City may reasonably use grantee’s poles, at no cost to the City, for City facilities, including but not limited to fiber optic lines, cameras, lights or other devices. Copies of agreements for the use of poles, conduits or other utility facilities must be provided upon written request by the City.

(f)

The grantee and the City recognize that situations may occur in the future where the City may desire to place its own cable or conduit for fiber optic cable in trenches or bores opened by the grantee. The grantee agrees to cooperate with the City in any construction by the grantee that involves trenching or boring; provided, that the City has first provided reasonable notice to the grantee that it is interested in sharing the trenches or bores in the area where the grantee’s construction is occurring. The grantee shall allow the City to lay its cable, conduit and fiber optic cable in the grantee’s trenches and bores, provided the City shares in any extraordinary cost of the trenching and boring. The City shall be responsible for maintaining its respective cable, conduit and fiber optic cable buried in the grantee’s trenches and bores under this paragraph.

Sec. 10.15 Undergrounding of multiple dwelling unit drops.

In cases of single site multiple dwelling units, grantee shall minimize the number of individual aerial drop cables by installing multiple drop cables underground between the pole and multiple dwelling unit where determined to be technologically feasible in agreement with the owners and/or owner’s association of the multiple dwelling units.

Sec. 10.16 Burial standards.

Depths.

Unless otherwise required by law, grantee shall comply with the following burial depth standards. In no event shall grantee be required to bury its cable deeper than electric or gas facilities in the same portion of the right-of-way:

Underground cable, feeder and trunks lines shall be buried at a minimum depth of 42 inches or as otherwise required by City development permits and construction standards.

Timeliness.

Cable drops installed by grantee to residences shall be buried according to these standards within one calendar month of initial installation or at a time mutually agreed upon between the grantee and the subscriber. When freezing surface conditions or other weather conditions prevent grantee from achieving such timetable, grantee shall apprise the subscriber of the circumstances and the revised schedule for burial, and shall provide the subscriber with grantee’s telephone number and instructions as to how and when to call grantee to request burial of the line if the revised schedule is not met.

Sec. 10.17 Electrical bonding.

Grantee shall ensure that all new cable drops are properly bonded to the electrical power ground at the home, consistent with applicable code requirements. All nonconforming or nonperforming cable drops shall be replaced by grantee as necessary.

Sec. 10.18 Subdivision installation.

Any ordinance of the City which requires installation of utilities in subdivisions or other developments shall be construed to include wiring for cable systems.

Sec. 10.19 Repair and restoration of property.

The grantee shall protect public and private property from damage. If damage occurs, the grantee shall promptly notify the property owner within 24 hours in writing.

Whenever grantee disturbs or damages any right-of-way, other public property or any private property, grantee shall promptly restore the right-of-way or property to at least its prior condition, normal wear and tear excepted, at its own expense.

Grantee shall warrant any restoration work performed by or for grantee in the right-of-way or on other public property for one year.

(d)

Upon completion of the work that caused any disturbance or damage, grantee shall promptly commence restoration of private property, and will use best efforts to complete the restoration within 72 hours, considering the nature of the work that must be performed.

Sec. 10.20 Use of conduits by the City.

Subject to any applicable State or federal regulations or tariffs, the City may install or affix and maintain wires and equipment owned by the City for City purposes in or upon any and all of grantee’s ducts, conduits or equipment in the rights-of-way and other public places, to the extent space therein or thereon is reasonably available, and pursuant to all applicable ordinances and codes; provided, that (a) such use by City does not interfere with the current or future use by the grantee; (b) the City holds the grantee harmless against and from all claims, demands, costs, or liabilities of every kind and nature whatsoever arising out of such use, including but not limited to reasonable attorney fees and costs; (c) such use by the City is restricted to noncommercial municipal purposes; (d) the City takes reasonable precautions to prevent any use of the grantee’s conduits, ducts, or equipment in any manner that results in inappropriate use thereof, or any loss or damage to the conduit, ducts, or equipment, or the cable system; (e) the City does not use the conduits, ducts, or equipment for any purpose that is in competition with the services offered by the grantee. For the purposes of this subsection, “City purposes” includes, but is not limited to, the use of the structures and installations for City fire, police, traffic, water, telephone, and/or signal systems, but not for cable service in competition with grantee. Grantee shall not deduct the value of such use of its facilities from its franchise fee payments or from other fees payable to the City.

Sec. 10.21 Common users.

For the purposes of this subsection:

Attachment

means any wire, optical fiber or other cable, and any related device, apparatus or auxiliary equipment for the purpose of voice, video or data transmission.

Conduit or conduit facility

means any structure, or section thereof, containing one or more ducts, conduits, manholes, handhole or other such facilities in grantee’s cable system.

Duct

means a single enclosed raceway for cables, fiber optics or other wires.

Licensee

means any person licensed or otherwise permitted by the City to use the rights-of-way.

Surplus ducts or conduits

are conduit facilities other than those occupied by grantee or any prior licensee, or unoccupied ducts held by grantee as emergency use spares, or other unoccupied ducts that grantee reasonably expects to use within two years from the date of a request for use.

Grantee acknowledges that the rights-of-way have a finite capacity for containing conduits. Therefore, grantee agrees that whenever the City determines it is impracticable to permit construction of an underground conduit system by any other person which may at the time have authority to construct or maintain conduits or ducts in the rights-of-way, but excluding persons providing cable services in competition with grantee, the City may require grantee to afford to such person the right to use grantee’s surplus ducts or conduits in common with grantee, pursuant to the terms and conditions of an agreement for use of surplus ducts or conduits entered into by grantee and the licensee. Nothing herein shall require grantee to enter into an agreement with such person if, in grantee’s reasonable determination, such an agreement could compromise the integrity of the cable system.

A licensee occupying part of a duct shall be deemed to occupy the entire duct.

(d)

Grantee shall give a licensee a minimum of 120 days’ notice of its need to occupy a licensed conduit and shall propose that the licensee take the first feasible action as follows:

(1)

Pay revised conduit rent designed to recover the cost of retrofitting the conduit with multiplexing, fiber optics or other space-saving technology sufficient to meet grantee’s space needs;

(2)

Pay revised conduit rent based on the cost of new conduit constructed to meet grantee’s space needs;

(3)

Vacate the needed ducts or conduit; or

(4)

Construct and maintain sufficient new or larger conduit to meet grantee’s space needs.

(e)

When two or more licensees occupy a section of conduit facility, the last licensee to occupy the conduit facility shall be the first to vacate or construct new conduit. When conduit rent is revised because of retrofitting, space-saving technology or construction of new conduit, all licensees shall bear the increased cost.

(f)

All attachments shall meet applicable local, State, and federal clearance and other safety requirements, be adequately grounded and anchored, and meet the provisions of contracts executed between grantee and the licensee. Grantee may, at its option, correct any attachment deficiencies and charge the licensee for its costs. Each licensee shall pay grantee for any fines, fees, damages or other costs the licensee’s attachments cause grantee to incur.

(g)

In order to enforce the provisions of this subsection with respect to grantee, the City must demonstrate that it has required all similarly situated users of the rights-of-way to comply with the provisions of this subsection.

Sec. 10.22 Acquisition of facilities.

Upon grantee’s acquisition of facilities in any City right-of-way, or upon the addition to the City of any area in which grantee owns or operates any facility, grantee shall, at the City’s request, submit to the City a statement describing all facilities involved, whether authorized by franchise, permit, license or other prior right, and specifying the location of all such facilities to the extent grantee has possession of such information. Such facilities shall immediately be subject to the terms of this franchise.

Sec. 10.23 Discontinuing use/abandonment of cable system facilities.

Whenever grantee intends to discontinue using any facility within the rights-of-way, grantee shall submit to the City a complete description of the facility and the date on which grantee intends to discontinue using the facility. Grantee may remove the facility or request that the City permit it to remain in place. Notwithstanding grantee’s request that any such facility remain in place, the City may require grantee to remove the facility from the right-of-way or modify the facility to protect the public health, welfare, safety, and convenience, or otherwise serve the public interest. The City may require grantee to perform a reasonable combination of modification and removal of the facility. Grantee shall complete such removal or modification in accordance with a reasonable schedule set by the City. Until such time as grantee removes or modifies the facility as reasonably directed by the City, or until the rights to and responsibility for the facility are accepted by another person, grantee shall retain all liability for such facility and be responsible for all necessary repairs and relocations of the facility, as well as maintenance of the right-of-way, in the same manner and degree as if the facility were in active use. If grantee abandons its facilities, the City may choose to use such facilities for any purpose whatsoever including, but not limited to, access purposes. If the City chooses to utilize any such abandoned facilities, grantee’s liability for those facilities shall cease.

Sec. 10.24 Movement of cable system facilities for City purposes.

The City shall have the right to require grantee to relocate, remove, replace, modify or disconnect grantee’s facilities and equipment located in the rights-of-way or on any other property of the City in the event of an emergency or when reasonable public convenience requires such change (for example, without limitation, by reason of traffic conditions, public safety, right-of-way vacation, right-of-way construction, change or establishment of right-of-way grade, installation of sewers, drains, gas or water pipes, or any other types of structures or improvements by the City for public purposes). Such work shall be performed at no cost to the City. Except during an emergency, the City shall provide reasonable notice to grantee, not to be less than 10 business days and allow grantee the opportunity to perform such action after review and approval of the relocation plan by the City. In the event of any capital improvement project exceeding $250,000 in expenditures by the City which requires the removal, replacement, modification or disconnection of grantee’s facilities or equipment, the City shall provide at least 30 days’ written notice to grantee. Following notice by the City, grantee shall relocate, remove, replace, modify or disconnect any of its facilities or equipment within any right-of-way or on any other property of the City. If the City requires grantee to relocate its facilities located within the rights-of-way, the City shall make a reasonable effort to provide grantee with an alternate location within the rights-of-way but a replacement location is not guaranteed. If funds are generally made available to users of the rights-of-way for such relocation, grantee shall be entitled to its pro rata share of such funds.

If the grantee fails to complete this work within the time prescribed and to the City’s reasonable satisfaction, the City may cause such work to be done and bill the reasonable cost of the work to the grantee, including all reasonable costs and expenses incurred by the City due to grantee’s delay. In such event, the City shall not be liable for any damage to any portion of grantee’s cable system unless the City acted in a negligent manner. Within 30 days of receipt of an itemized list of those costs, the grantee shall pay the City.

Sec. 10.25 Movement of cable system facilities for other franchise holders.

If any removal, replacement, modification or disconnection of the cable system is required to accommodate the construction, operation or repair of the facilities or equipment of another City franchise holder, grantee shall, after at least 30 days’ advance written notice, take action to effect the necessary changes requested by the responsible entity. Grantee may require that the costs associated with the removal or relocation be paid by the benefited party at no cost to the City.

Sec. 10.26 Temporary changes for other permittees.

At the request of any person holding a valid permit and upon reasonable advance notice, grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The expense of such temporary changes must be paid by the permit holder, and grantee may require a reasonable deposit of the estimated payment in advance.

Sec. 10.27 Reservation of City use of right-of-way.

Nothing in this franchise shall prevent the City or public utilities owned, maintained or operated by public entities other than the City from constructing sewers; grading, paving, repairing or altering any right-of-way; laying down, repairing or removing water mains; or constructing or establishing any other public work or improvement. All such work shall be done, insofar as practicable, so as not to obstruct, injure or prevent the use and operation of grantee’s cable system.

Sec. 10.28 Tree trimming.

Grantee may prune or cause to be pruned, using proper pruning practices, any tree in the City’s rights-of-way which interferes with grantee’s cable system. Grantee shall comply with any general ordinance or regulations of the City regarding tree trimming. Except in emergencies, grantee may not prune trees at a point below 30 feet above sidewalk grade until one week’s written notice has been given to the owner or occupant of the premises abutting the right-of-way in or over which the tree is growing. The owner or occupant of the abutting premises may prune such tree at his or her own expense during this one-week period. If the owner or occupant fails to do so, grantee may prune such tree at its own expense. For purposes of this subsection, emergencies exist when it is necessary to prune to protect the public or grantee’s facilities from imminent danger only.

Sec. 10.29 Inspection of construction and facilities.

The City may inspect any of grantee’s facilities, equipment or construction at any time upon at least five business days’ notice, or, in case of emergency, upon demand without prior notice. If an unsafe condition is found to exist, the City, in addition to taking any other action permitted under applicable law, may order grantee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition by a time the City establishes. The City has the right to correct, inspect, administer and repair the unsafe condition if grantee fails to do so, and to reasonably charge grantee therefor.

Sec. 10.30 Stop work.

On notice from the City that any work is being performed contrary to the provisions of this franchise, or in an unsafe or dangerous manner as determined by the City, or in violation of the terms of any generally applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the City.