(A) (1) The company shall have the right to excavate in, occupy and use any and all rights-of-way and public places for the purpose of installing, erecting, constructing, repairing, maintaining, removing, relocating and operating its facilities after obtaining any and all appropriate permits from the city, provided, however, that:
(a) The company shall not, pursuant to this franchise, place any of its facilities, on, over, under or within any city park, duly designated as such by the city, but nothing herein contained shall preclude the city from granting a revocable permit therefor;
(b) The company shall not place any of its facilities, on, over, or within the median portion of any boulevard or parkway without first having obtained the written permission of the city;
(c) Where appropriate and as may be required by the city through any permit process, installation, excavations and restorations affecting street and/or lane closures shall, as often as practicable, be performed after 6:30 p.m. and before 6:00 a.m., but in no event shall any such work be performed from 7:00 a.m. to 9:00 a.m. and from 4:00 p.m. to 6:00 p.m.;
(d) The city reserves the right to assist in the coordination and scheduling of any company projects where such project may be reasonably coordinated with the placement of other franchisee facilities. Otherwise, and subject to city permit processes and approvals, it is recognized that, notwithstanding the foregoing, the company retains discretion over the timing of the company's proposed projects; and
(e) The company shall, to the extent feasible, employ "trenchless" technology in the placement of its facilities.
(2) Except in an emergency, not less than five working days prior to the commencement of any work by the company which involves excavation in any rights-of-way or public place, the company shall notify the Director and any appropriate utility coordinating committee for purposes of utility location. Minimum notice to the city shall be by telephone communication or in person prior to any work, followed by notice in writing as soon as practical. The company will provide advance notice so as not to disrupt services of the city or any other person or utility using any rights-of-way and public places in the city and allow the city to place any inspector it may deem necessary at the site of the project.
(B) Whenever work is performed in any rights-of-way or public place, the company shall take all reasonable precautions to minimize interruption to traffic flow, damage to property or creation of a hazardous condition.
(C) After any excavation shall be made and after work is completed pursuant to the provisions of this ordinance, the company, at company expense shall as soon as practicable, but not longer than one day, remove all surplus material in compliance with specifications, requirements and regulations of the city in effect at the time of such restoration and restore the portion of the rights-of-way or public place to the same condition in which it was prior to the excavation thereof. If the company fails to restore promptly the affected portion of the rights-of-way or public place, following written notice to the company, the city may make the restoration in a manner satisfactory to the city and all costs incurred for such restoration, whether done with city work forces and equipment or otherwise, shall be paid by the company, including the cost of any inspectors the city may assign to the project.
(D) The company shall be responsible for the maintenance of all rights-of-way impacted by the presence of the company's facilities and within reasonable proximity of and upon which the company maintains aboveground facilities, including the removal of weeds and litter.
(E) The company shall ensure its facilities in rights-of-way and public places are located and constructed in a manner such that access is not impaired in compliance with the Americans with Disabilities Act (ADA). Following notice by the city of an ADA construction problem, the company shall have 30 days or other reasonable time to remedy the problem. In the event the city and the company cannot agree that a problem exists, any dispute shall be submitted to nonbinding mediation, with the assistance and through the city's Alternative Dispute Resolution ("ADR") Coordinator.
(F) Execution of this franchise requires the company to become a member of a local utility coordinating committee, e.g. New Mexico One-Call System. The company further agrees to participate in such organization(s) and abide by their articles of incorporation, bylaws, and other requirements.
(Ord. 45-1995)