(A) Compliance with law. Providers are explicitly subject to the police powers of the City, any other governmental powers, and the City's rights as a property owner under state and federal laws. This ordinance is governed by and construed and enforced in accordance with the laws of the State of New Mexico.
(B) Construction plans and drawings.
(1) Before the Provider may conduct underground work involving excavation, new construction, or major relocation work in any Public Rights-of-Way:
(a) The Provider shall first notify the City through the acquisition of an Excavation and/or Barricade Permit and shall comply with any special conditions relating to location, scheduling, coordina-tion, and public safety; and
(b) The Provider shall file maps and/or drawings with the Director showing the location of any construction or extension of its facilities and services in any Public Rights-of-Way of the City. For multi-conduit duct banks, maps and drawings shall show overall size, material, and configuration of the duct bank. Upon request from the City, the Provider shall provide City with updates of the maps and drawings showing the location of any new construction, extension, or relocation of its facilities or line spot such facilities. All materials provided pursuant to this section shall be kept confidential to the fullest extent possible under the law.
(2) Proposed construction work to be done by the Provider shall be performed in a safe manner subject to the approval of the Director and in accordance with applicable federal and state laws and City Requirements now or hereinafter existing, including the street excavation ordinance, as that ordinance may be amended from time to time (which ordinance requires a Sidewalk, Drive-pad, Curb, and Gutter Bond, a bond securing payment of permit fees, and evidence of at least $1,000,000 in the requisite insurance coverage(s) or provision for self-insurance.)
(3) Prior to initiating any construction or extension of the Network and contemporaneous with the filing of maps and drawings, Provider shall tender a review/location fee, in addition to the franchise fee, with the Director. Such preconstruction review/location fee shall be $1.50 per linear foot as diagramed and mapped; however, in no event shall such fee exceed $30,000 on an annual basis. The review/location fee shall be imposed for all subsequent additions or extensions of the Provider's Network as may be proposed from time to time and shall be due each 15th day of January, the due date for updated maps.
(C) Installations, excavations, and restorations.
(1) (a) Pursuant to any Municipal Authority granted under this Chapter, the Provider 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 facilities after obtaining any and all appropriate permits from the City, provided, however, that:
1. The Provider shall not 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;
2. The Provider 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;
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 and in accordance with current City policies and ordinances;
4. The City reserves the right to assist in the coordination and scheduling of any Provider projects where such project may be reasonably coordinated with the placement of other franchisee or Provider facilities. Otherwise, and subject to City permitting processes and approvals, it is recognized that, notwithstanding the foregoing, the Provider retains discretion over the timing of the Provider's proposed projects; and
5. The Provider shall, to the extent feasible, employ “trenchless” technology in the placement of its facilities.
(b) Except in an emergency, not less than two working days prior to the commencement of any work by the Provider which involves excavation in any Public Rights-of-Way, the Provider shall notify the Director through the barricade and excavation permit process, including payment of any and all fees. Provider shall comply with the street excavation ordinance as it now or may exist in the future.
(2) Whenever work is performed in any Public Rights-of-Way, the Provider shall take all reasonable precautions to minimize interruption to traffic flow, damage to property, or creation of a hazardous condition.
(3) After any excavation shall be made and after work is completed, the Provider, at Provider expense, shall as soon as practicable but not longer than one day, weather permitting, 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 Public Rights-of-Way in a manner consistent with the normal specifications and requirements of the City. If the Provider fails to restore promptly the affected portion of the Public Rights-of-Way, including reseeding, following written notice to Provider, 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 Provider, including the cost of any inspectors the City may assign to the project.
(4) The Provider 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 therefrom. If after notice from the City such graffiti has not been removed, it will be removed by the City at Provider's sole cost.
(5) The Provider shall ensure its public facilities in Public Rights-of-Way 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 Provider shall have 30 days or other reasonable time to remedy the problem. In the event that the City and the Provider cannot agree that a problem exists, any dispute shall be submitted to non-binding mediation, with the assistance and through the City's Alternative Dispute Resolution (ADR) Coordinator.
(6) Execution of any Municipal Authority or Franchise Contract requires the Provider to become a member of a local utility coordinating committee, or a Provider may provide a similar service pursuant to a Municipal Authority or Franchise Contract, which service would be governed by state law. If the Provider elects to become a member of the local utility coordinating committee, the Provider further agrees to participate in such organization(s) and abide by their articles of incorporation, by-laws, and other requirements.
(D) Location and relocation of facilities.
(1) All facilities of the Provider shall be placed so that they do not interfere with the use of Public Rights-of-Way by the City and shall only be placed after approval of the location by the Director and in accordance with any reasonable specifications adopted by the City governing the location of facilities. The City reserves the right to construct, install, maintain, and operate any public improvement, work, or facility, do any work that the City may find desirable on, over, or under any Public Rights-of-Way, and vacate, alter, or close any Public Rights-of-Way subject to Provider's rights set out at § 13-4-10-6E(3). All such work shall be done, if possible, in such a manner as not to obstruct, injure, or prevent use and operation of the Provider's Network or other facilities. Pursuant to any Municipal Authority, Provider agrees to obtain the City's express written approval before placing any poles in Public Rights-of-Way that do not currently exist in Public Rights-of-Way.
(2) (a) After notice to the Provider, where relocation cannot reasonably be avoided and where the City and the Provider agree that no alternative exists, the City may require the removal or relocation of facilities used by the Provider in any Public Rights-of-Way as may reasonably be required by the or caused or occasioned by any City project, including but not limited to the installation of water, sanitary sewer, storm drainage, or traffic signal facilities, road reconstruction, or other Public Right-of-Way construction. The Provider shall remove and relocate such facilities within 60 days following notice to do so from the City. Projects requiring, in the opinion of the Provider, in excess of 60 days to complete shall be completed in a time frame determined on a project specific basis. Prior to any such relocation, the City agrees to provide for a suitable location for such relocated facilities sufficient to maintain service. The cost of any removal or relocation of its facilities shall be paid by the Provider. Notwithstanding the foregoing, the Provider shall not be required by the City to relocate its facilities to accommodate another franchisee or Provider in the City. The costs of any relocations occasioned by another franchisee of the City in no event shall be the responsibility of the City.
(b) The Provider shall 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 Provider, 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 Provider shall be reconstructed, replaced, or restored only under the supervision of City personnel.
(c) Subject to the provisions of this section and upon notice to the City, the Provider may remove or relocate facilities maintained by the Provider on its own initiative.
(3) Where the City, acting through itself, an agent, contractor, or permit holder, proposes to improve a street, which requires the relocation of an existing aerial facility within the Public Rights-of-Way under its jurisdiction or control, the Provider shall replace such overhead distribution facilities as are then within the affected right-of-way with underground facilities. All such relocations shall be at Provider expense. The conversion from overhead to underground shall be conditioned upon the City requiring the undergrounding in the area in which both the existing and new facilities are and will be located. Such replacement of overhead with underground distribution facilities shall be paid for by the Provider.
(E) Public works and improvements.
(1) The City reserves the right to construct, install, maintain, and operate any public improvement, work, or facility and do any work that the City may find desirable on, over, or under any Public Rights-of-Way. All such work shall be done, if possible, in such manner as not to obstruct, injure, or prevent free use and operation of the Provider's Facilities.
(2) Whenever the City 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 Provider's facilities, the City shall notify the Provider sufficiently in advance of such contemplated excavation or work to enable the Provider 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 the Provider cannot take such measures, the Provider shall be required to relocate its facilities in accordance with this Chapter. In such case, the Provider upon request shall furnish field markings to the City or contractor, as the case may be, showing the location of all its facilities in the area involved in such proposed excavation or other work.
(3) Whenever the City shall vacate any Public Rights-of-Way for the convenience or benefit of any person or governmental agency or instrumentality, the Provider's rights shall be preserved as to any of its facilities then existing in such Public Rights-of-Way.
(F) Provider offices. Within one year of the effective date of any Municipal Authority or Franchise Contract or upon commencement of operation and throughout the duration of the Municipal Authority or Franchise Contract or any extension thereto, Provider shall be required to establish and maintain offices within the City, for operational and maintenance purposes, or as may be required by the City by agreement.
(G) Moving of buildings. Whenever it becomes necessary to temporarily rearrange, remove, lower, or raise the aerial cables or wires or other apparatus of the Provider to permit the passage of any building, machinery, or other object, the Provider 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 Provider in making such rearrangements of its aerial plant will be borne, excepting the City, by the person or persons seeking such rearrangement, unless the aerial plant is placed or maintained in violation of the applicable rules of any local, state, or federal regulatory agency and thereby interferes with the movement.
(H) Safety standards. The facilities of the Provider shall at all times be constructed, operated, and maintained so as to protect and safeguard the health and safety of the public, and to this end Provider shall observe all rules pertaining thereto prescribed by any local, state, or federal regulatory authority.
(I) Joint use agreements. The Provider is authorized to enter into joint-use agreements with any person or entity franchised by the City with respect to the placement of facilities. The Provider may require any such person or entity to furnish evidence of adequate insurance covering the Provider and adequate bonds covering the performance of the person or entity attaching to the Provider's facilities as a condition precedent to granting permission to any such person or entity to attach facilities to the Provider's facilities, provided that the Provider's requirements for such insurance shall be reasonable.
(J) Interference. The Provider shall not be required to attach its facilities to the facilities of any other person or entity or to permit the facilities of any other person or entity to be attached to the Provider's facilities if it can be shown satisfactorily to the City that the Provider will be subjected to increased risks of interruption of service or to increased liability for accidents, or if the facilities of such other person or entity are not of the character, design, and construction required by, or are not being maintained in accordance with industry standards or practice.
(K) Supplying maps. Provider shall maintain on file all available maps, operational data, and reports pertaining to its operations in the City. The City may inspect the maps, data, and reports at any time during business hours. Upon request of the City, the Provider shall furnish to the City, as soon as practicable without charge, current maps, either in a “hard copy” printed form or in the City's AGIS format or compatible data base, showing the location and dimension of any facilities, but not other proprietary information, used in operating the Provider's facilities within the City of Albuquerque.
(L) Limitation on privileges. All rights, authority, and grants contained or conferred are also conditioned upon the understanding and agreement that these privileges in the Public Rights-of-Way of the City are not to operate in any way so as to be an enhancement of the Provider's properties or values or to be an asset or item of ownership in any appraisal thereof in the event of a City acquisition, by purchase or otherwise. In the event that the City shall at any time hereafter acquire the property of the Provider, by purchase or otherwise, the value of any Municipal Authority shall be fixed and determined at $1.
(Ord. 20-1997)