[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;
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.
