(A) Joint use. Upon request by the City and to the extent Grantee legally can and safely do so, pursuant to its leases and agreements with other persons using the Right-of-Way, Grantee may in its reasonable discretion grant joint use of easements or private rights-of-way which it now, or in the future, has an interest in, to the City for purposes, including but not limited to parks, drainage facilities, bikeways, traffic conduits, mass transit corridors, sanitary sewer lines, pedestrian area parking, open spaces, and electric, cable, natural gas, and water service distribution, provided that the Grantee shall not be required to make such an offer in any circumstance where such offer would unreasonably interfere with the Grantee's use of the easements or private rights-of-way. If the City's joint use is accepted by the Grantee, then (i) any improvements deemed appropriate by the City shall be made by the City at its sole expense, and (ii) City shall be responsible for any additional fees and other costs resulting from granting the City such joint use of the easements or rights-of-way.
(B) Budgeting. To facilitate the City's annual budget process, on or before the 1st of November and each succeeding 1st of November thereafter during the term of this Franchise, the Grantee will provide the City with an estimate of the gross revenue and resultant fee for the following calendar year.
(C) All work subject to City laws and regulations. The construction, maintenance, operation, and repair of the System shall be performed in compliance with all applicable laws, ordinances, resolutions, departmental rules and regulations affecting such System. By way of example, and not limitation, this includes Chapter 14 of the Albuquerque Code of Ordinance (the City's Zoning Ordinance); ordinances, regulations and policies to preserve or protect the public safety; construction standards; regulations for providing notice to persons that may be affected by system construction; and written directives issued pursuant to and for implementation of City ordinances governing the time, place and manner in which Facilities may be installed in the Public Rights-of-Way or on other property, provided, however, that such written directives have been provided to Grantee. Persons engaged in the construction, operation, or repair of systems shall exercise reasonable care in the performance of all their activities and shall use commonly accepted industry methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.
(D) Permits. Except in an emergency where there is an immediate threat to public health, safety or welfare, new construction, maintenance, operation, or repair of the system shall not commence until all required permits have been obtained from the proper City officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of the City, any work and/or construction undertaken that is not completed in compliance with the City's requirements, or which is installed without obtaining necessary permits and approvals shall be removed in accordance with the reasonable timeline set forth by the City, if Grantee fails to cure the non-compliance after 15 days written notice.
(E) Safety codes. Without limiting the foregoing, the construction, maintenance, operation and repair of the system shall be in accordance with the requirements of all applicable laws, ordinances, rules, regulations of the state and of the City affecting natural gas installations and buildings, now or hereafter in effect, provided that in the event of any conflict between State and City laws, ordinances, rules and regulations, those of the State shall control. All structures, lines, equipment, and connections in, over, under, and upon the streets shall at all times be kept and maintained in a safe, suitable, substantial condition, and in good order and repair.
(F) Maps. Grantee in its sole discretion may file maps, drawings, or computer sketches with the director showing the location of any construction or extension of Grantee's System and for all permits associated with maintenance of Grantee's System in the Rights-of-Way. For multi-facility Public Rights-of-Way, such maps, drawings, or computer sketches shall show overall size, material, and configuration of the Rights-of-Way.
(G) Installations, excavations, and restorations. Grantee shall have the right to excavate in, occupy, and use any and all Public Rights-of-Way for the purpose of installing, erecting, constructing, repairing, maintaining, removing, relocating, and operating its system after obtaining any and all appropriate permits from the City, provided, however, that:
(1) The Grantee shall not hereafter 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 therefore;
(2) The Grantee shall not place any of its facilities on, over, or within the median portion of any boulevard or parkway, except for perpendicular crossings, without first having obtained the written permission of the City (this clause shall not limit Grantee in any way from maintaining and replacing any facilities located on, over or within such medians prior to the granting of this Franchise);
(3) Where appropriate and as may be required by the City through any permitting process, installation, excavations, and restorations affecting street and/or lane closures shall be approved by the City in accordance with then-current City ordinances;
(4) The City may require a Grantee to coordinate its work with work performed by others in the Public Rights-of-Way as provided in such ordinances;
(5) The Grantee shall use reasonable efforts in its discretion to employ trenchless technology in the placement of its facilities where technically feasible; and
(6) Interference with others' use of the Public Rights-of-Way including others that may be installing systems must be minimized. The City encourages a person using the Public Rights-of-Way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the Public Rights-of-Way.
(H) Work involving excavations; notice. Except in an emergency, not less than two working days prior to the commencement of any work by the Grantee which involves excavation in any Public Rights-of-Way, the Grantee shall notify the director through the barricade and excavation permit process, including payment of any and all fees of general applicability. Grantee shall comply with the street excavation ordinance as it now exists or may exist in the future.
(I) Clean-up and restoration. After any excavation shall be made and after work is completed, the Grantee, at Grantee's expense, shall as soon as practicable but not longer than three days, weather permitting, remove all surplus material, and Grantee shall restore the portion of the Public Rights-of-Way to the condition that at least meets the pre-excavation condition of such rights-of-way, or as may otherwise be required by permit, subject to inspection by the director. If the Grantee fails to restore promptly the affected property in accordance with the permit, including reseeding, to the City's satisfaction, then following written notice to Grantee, and reasonable opportunity to cure, the City may make the restoration in a manner satisfactory to City, and all costs incurred for such restoration, whether done with City work forces and equipment or otherwise shall be paid by the Grantee, including the cost of any inspectors the City may assign to the project.
(J) Maintaining facilities in good condition. Grantee shall be responsible for the maintenance of its own equipment, facilities, and appurtenances placed upon, over, or under the Public Right-of-Way, including the removal of all graffiti there from. If after notice from the City that any such graffiti has not been removed, it will be removed by the City at Grantee's sole cost.
(K) Persons with disabilities. Grantee shall ensure its facilities in Public Rights-of-Way are located and constructed in compliance with any applicable provisions of the Americans with Disabilities Act (ADA). In the event that the City notifies the Grantee that the City reasonably believes that Grantee's facilities fail to comply with the ADA in some respect, and the City and Grantee cannot agree that a problem exists, such dispute shall be submitted to non-binding mediation. If the parties fail to resolve such dispute through mediation, the parties shall submit the dispute to binding arbitration.
(L) Utility coordinating committee. Execution of this Franchise requires Grantee to become a member of a local utility coordinating committee, or Grantee may provide a similar service which service would be governed by state law. If the Grantee elects to become a member of the local utility coordinating committee, the Grantee further agrees to participate in such organization(s) and abide by their articles of incorporation, by-laws, and other requirements.
(M) Publicizing proposed construction work.
(1) Grantee will publicize any substantial rebuild or upgrade of its system in each affected neighborhood at least one week before commencing that work by providing written notice to the City and by notifying those persons whose property is within 300 feet of the work in one of the following ways:
(a) Telephone;
(b) In person;
(c) By mail;
(d) By distributing flyers to residences; or
(e) By publication in local newspapers.
(2) Apart from any substantial rebuild or upgrade, any construction will be publicized in accordance with applicable notice requirements.
(3) For the purposes of this section, the term "substantial rebuild or upgrade" means the planned replacement or addition of facilities affecting:
(a) More than 10% of the System; or
(b) Involving more than ten miles of plant.
(4) During the period of any system initial build or rebuild, a Grantee will maintain a file open for public inspection showing its timetable for constructing the system by area of the City.
(N) System maintenance. Scheduled maintenance will be performed to minimize the effect on Public Rights-of-Way.
(O) Relocation.
(1) Grantee shall, by a time specified by the City, protect, support, temporarily disconnect, relocate, or remove any of its property when requested by the City for reasons directly related to the City's public works projects, including for reason of traffic conditions; public safety; public right-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement; or for any other related purpose where the foregoing work would be aided by the removal or relocation of the system. Collectively, such matters are referred to below as the "public work."
(2) The City shall provide written notice describing where the public work is to be performed at least four weeks prior to the deadline by which a Grantee must protect, support, temporarily disconnect, relocate or remove its facilities; provided that, in an emergency, or where a system creates or is contributing to an imminent danger to health, safety, welfare, or property, notice reasonable under the circumstances may be given and Grantee shall exercise diligent efforts to immediately protect, support, temporarily disconnect, relocate or remove its facilities. A public emergency shall be any condition which, in the opinion of any City official, poses an immediate threat to the lives or property of the citizens of City, caused by any natural or man-made disaster, including, but not limited to, storms, floods, fire, accidents, explosions, major water main breaks, hazardous materials spills, etc. Grantee shall be responsible for any reasonable costs incurred by the City arising from Grantee's unreasonable delay in responding to an emergency or other instance where the System is contributing to an imminent danger to health, safety, welfare or property. Any City response shall comply with all federal, state and regulatory safety standards and requirements.
(3) Grantee shall in accordance with any applicable permits reconstruct, replace, or restore any street, alley, or public way or place in a timely fashion and any water, sewer, sanitary sewer, storm drainage, traffic signalization facilities, or other facility of the City disturbed by the Grantee, without cost to the City, to a condition acceptable to the City consistent with reasonable standards of safety and appearance. Any facility so disturbed by the Grantee shall be reconstructed, replaced, or restored only under the supervision of City personnel.
(4) Subject to the provisions of this section and upon notice to the City, the Grantee may remove or relocate facilities maintained by the Grantee on its own initiative.
(5) Grantee, at its own expense, shall relocate its facilities in accordance with paragraph (O); provided, however, that Grantee shall not be responsible for relocation costs:
(a) Where by City application, specific monies can be and are obtained from federal or state sources for relocation costs, provided that no City matching funds would be required, the scope of the City project would not be diminished, and the City would not be required to spend additional monies;
(b) If the specific excavation, construction, or regrading is done to accommodate the actions or plans of private individuals or entities who are developing or intend to develop property within the Franchise Area, then such private individuals or entities shall be responsible for the relocation costs, provided that in no event shall the City be liable for such relocation costs; or
(c) State or federal law requires City to pay for such relocation.
(P) Public works and improvements.
(1) Whenever the City shall excavate or perform any work in any present and/or future public rights-of-way, or shall contract for such excavation or work, where such excavation or work may disturb but not require removal or relocation of Grantee's facilities, the City shall notify the Grantee sufficiently in advance of such contemplated excavation or work to enable the Grantee to take such measures as may be deemed necessary to protect and support such facilities from damage and possible inconvenience or injury to the public or the City's Public Rights-of-Way. If Grantee cannot take such measures, Grantee shall be required to relocate its facilities in accordance with subparagraph (O) of this Section. In either case, Grantee upon request, shall furnish field markings to the City or contractor, as the case may be, at no cost to the City, showing the location of all its facilities in the area involved in such proposed excavation or other work in accordance with applicable standards and requirements of state law.
(2) Whenever Grantee shall excavate or perform any work in any present and/or future Public Rights-of-Way of the City, or shall contract for such excavation or work, where such excavation or work may disturb but not require removal or relocation of City facilities, Grantee shall notify the City sufficiently in advance of such contemplated excavation or work to enable City to take such measures as may be deemed necessary to protect and support such facilities from damage and possible inconvenience or injury to the public or Public Rights-of-Way. If City cannot take such measures, the Grantee shall be required to relocate its facilities in accordance with this Section. The City shall furnish field markings of City-owned facilities at no cost to Grantee in accordance with applicable standards and requirements of state law.
(Q) Moving of buildings. Whenever it becomes necessary to temporarily rearrange, remove, lower, or raise any facilities or plant of the Grantee within a Right-of-Way to permit the passage of any building, machinery, or other object, Grantee shall perform such rearrangement upon the receipt of written notice from the person or persons desiring to move said building, machinery, or other objects. The written notice shall detail the route of movement of the building, machinery, or other object. The costs incurred by the Grantee in making such rearrangements of its facilities will be borne, excepting the City, by the person or persons seeking such rearrangement, unless the facility is placed or maintained in violation of the applicable rules of any local, state, or federal regulatory agency and thereby interferes with the movement.
(R) Access to mapping information. The City may upon reasonable request access existing maps, including electronic maps, if available, of Grantee relating to the System within the Rights-of-Way that are maintained in its files. Such access shall be at Grantee's offices, and Grantee shall furnish hard copies of maps requested by City. Any maps furnished under this provision shall be returned to Grantee upon completion of the project. The City shall not divulge the contents of any maps and the parties agree that the maps shall not be part of the public domain. Grantee may excise proprietary information so long as the location and dimension of any facilities, and their character (e.g. "pipe," "equipment cabinet") are clearly shown.
(S) Certain utility contracts. Within 90 days of the end of each calendar year quarter during the term of this Franchise, Grantee shall file with the city clerk a list of all contracts which Grantee has entered into during such quarter with any public utility companies, including any telecommunications and cable providers, whereby Grantee has granted to such contracting party any right to use the Right-of-Way for the placement of any property, equipment or facilities. Notwithstanding the foregoing, Grantee shall have no obligation hereunder to provide any information on such list, including but not limited to the identity of the contracting party, to the extent disclosure of such information is limited by any confidentiality agreement, or applicable law or regulation.
(Ord. 2-2003)