(A) City use of facilities. The city shall have the right to install and maintain free of charge upon any poles or in any conduit owned by a grantee any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the grantee.
(B) Joint use. Upon request by the city and to the extent the grantee legally can do so, pursuant to its leases and agreements with other persons using the right-of-way, the grantee will 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 any improvements deemed appropriate by the city shall be made by the city at its sole expense.
(C) 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 any franchise granted under this article, the grantee will provide the city, upon city's request, with an estimate of the gross revenue and resultant franchise fee for the following calendar year. The estimated gross revenues and resultant franchise fees are not a guarantee and shall not create a duty or obligation on the part of the grantee to meet gross revenue estimates or remit any estimated franchise fee amounts.
(D) All work subject to city laws and regulations. The construction, operation, and repair of cable systems shall be performed in compliance with all laws, ordinances, resolutions, departmental rules, regulations, written policies, and practices affecting such system. By way of example, and not limitation, this includes Chapter 14, Article 16 of the Albuquerque Code of Ordinances (the City's Integrated Development 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 directives governing the time, place and manner in which facilities may be installed in the public rights-of-way or on other property. Persons engaged in the construction, operation, or repair of cable systems shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.
(E) Permits. Construction, operation, or repair of a cable system shall not commence until all required permits have been obtained from the proper city officials and all required permit fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. City will not unreasonably withhold granting of permits. 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, unless grantee receives the necessary permits and approvals and/or corrects the non-compliant work or construction. To the extent generally required of others for construction within the city, a grantee shall reimburse the city for costs incurred in inspecting construction undertaken in the course of major upgrades and/or installation of fiber optics. No such reimbursement shall be required solely because of the grantee's status as a cable system or OVS operator.
(F) Safety codes. Without limiting the foregoing, the installation of any cable system shall be in accordance with the requirements of the National Electrical Safety Code of the American Insurance Association (successor to National Board of Fire Underwriters) and all applicable laws, ordinances, rules, regulations of the state and of the city affecting electrical installations and buildings in effect at the time of such installation. All structures and all 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.
(G) Maps. Grantee 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.
(H) Preconstruction maps; fees. Prior to initiating any construction or extension of the cable system and contemporaneous with the filing of maps and drawings, grantee shall tender a review/location fee, in addition to the franchise fee, with the Director. Such preconstruction review/location fee shall be $2.50 per linear foot as diagramed and mapped; however, in no event shall such fee exceed $30,000 on an annual basis after completion of any initial build or upgrade required by a franchise. The review/location fee shall be imposed for all subsequent additions or extensions of the grantee's cable system as may be proposed from time to time and shall be due each 15th day of January, the due date for updated maps.
(I) Installations, excavations, and restorations. Pursuant to any franchise granted under this article, the city shall have the right to regulate the time, manner and location of facilities in the public rights-of-way. Without limiting the foregoing, the city may require a grantee, where unreasonable delay in grantee's work will not result, to coordinate its work with work performed by others in the public rights-of-way so that interference with the use of the public rights-of-way by others, including others that may be installing cable systems, may be minimized. The city may require 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, subject to a grantee's right to not be unduly delayed in its emergency or planned work. The grantee shall have the right to excavate in, occupy, and use all public rights-of-way and easements dedicated for compatible uses for the purpose of installing, erecting, constructing, repairing, maintaining, removing, relocating, and operating a cable system after obtaining any and all appropriate permits from the city, provided, however, that:
(1) The grantee shall not place any of its facilities on, over, under, or within any city park, duly designated as such by the city without first having obtained the written permission of the city;
(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;
(3) No cable, line, wire, amplifier, converter or other piece of equipment owned or controlled by the grantee shall be installed by the grantee inside a dwelling or other occupied structure without first securing the permission of the owner or the lawful occupant of the property involved;
(4) The city reserves the right to determine the location of work in the right-of-way. The city shall not unreasonably withhold or restrict a grantee's access to right-of-ways;
(5) A grantee shall endeavor to employ trenchless technology in the placement of its facilities where technically and financially appropriate.
(J) Work involving excavations; notice. Except in an emergency, 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, and shall pay any generally applicable fees. Grantee shall comply with the street excavation ordinance as it now exists or may exist in the future.
(K) 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 one day, weather permitting, remove all surplus material, and restore the portion of the public rights-of-way to a condition that reasonably meets or exceeds the pre-excavation condition of such rights-of-way, subject to inspection by the Director. Any other affected public or private property shall be restored to a condition reasonably as good as that which existed prior to the work. If the grantee fails to restore promptly the affected property, including reseeding, 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.
(L) Maintaining facilities in good condition. The 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 therefrom. If after notice from the city that such graffiti has not been removed, it will be removed by the city at grantee's sole cost.
(M) Persons with disabilities. The grantee shall ensure its public facilities in public rights-of-way are located and constructed in a manner consistent with any requirements of the Americans with Disabilities Act (ADA) applicable at the time of construction. Following notice by the city of an ADA construction problem, the grantee shall have 30 days or other reasonable time to remedy the problem, subject to a grantee's right to contest the alleged ADA violation.
(N) Utility coordinating committee. Execution of any franchise requires the grantee to participate with a local utility coordinating committee, or a grantee may provide a similar service pursuant to a franchise, 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.
(O) Use of existing poles and conduit. A grantee shall use existing poles and conduit wherever appropriate. Additional poles may not be installed in the right-of-way without the permission of the Director. While it is the policy of the city to minimize the increase of any above ground utilities, no undergrounding shall be required solely because of the grantee's status as a cable system or OVS operator, nor where other existing utility facilities are above ground.
(P) Publicizing proposed construction work.
(1) A grantee will publicize the initial build or any substantial rebuild or upgrade of its cable system cable 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 at least two 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 or by television public service announcement.
(2) Apart from any initial build or substantial rebuild or upgrade, any construction will be publicized in accordance with applicable notice requirements.
(3) Before entering onto any person's property, a grantee will contact the property owner or, in the case of residential property, the resident in the manner described in this section. If grantee must enter a residence or building, it must schedule a mutually convenient appointment with the owner or resident. No cable, line, wire, amplifier, converter or other piece of equipment owned or controlled by the grantee shall be installed by the grantee inside a dwelling or other occupied structure without first securing the permission of the owner or the lawful occupant of the property involved.
(4) For the purposes of this section, the term "substantial rebuild or upgrade" means the planned replacement or addition of trunk or distribution cable (but not drops) affecting:
(a) More than 10% of the cable system subscribers; or
(b) Involving more than 20 miles of plant.
(5) During the period of any cable system cable initial build or rebuild, a grantee will maintain a file open for public inspection showing its timetable for constructing the cable system cable by area of the city.
(Q) System maintenance. Scheduled maintenance will be performed to minimize the effect of any necessary interruptions of cable service.
(R) Relocation.
(1) A grantee shall, by a reasonable time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when requested by the city by reason of traffic conditions; public safety; public right-of-way construction and repair (including re-grading, 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. Collectively, such matters are referred to below as the "public work." If funds are available to any person using the public rights-of-way for the purpose of defraying the cost of any of the foregoing, the city shall reimburse the grantee in the same manner in which other persons affected by the requirement are reimbursed. If the funds are controlled by another governmental entity, the city shall make application for such funds on behalf of grantee.
(2) The city or agent shall provide written notice describing where the public work is to be performed at least two weeks prior to the deadline by which a grantee must protect, support, temporarily disconnect, relocate or remove its facilities. However, in an emergency or where a cable system creates or is contributing to an imminent danger to health, safety, or property (and in which case without prior notice), or where the grantee has failed, after the notice provided above, to protect, support, temporarily disconnect, relocate or remove its facilities, the city may protect, support, temporarily disconnect, remove, or relocate any necessary parts of the cable system and charge grantee for costs incurred.
(3) Upon written notice of need, a grantee shall use reasonable good faith efforts to accommodate the construction, operation or repair of the facilities of another person authorized to use the public rights-of-way or public property. A person seeking accommodation shall provide a grantee reasonable notice, but, except in case of emergency, not less than 30 days prior to the time the accommodation work is to be completed. Such other person shall have responsibility for any and all costs associated with grantee's efforts to protect, support, temporarily disconnect, relocate or remove its facilities to accommodate the requesting person.
(4) Nothing herein shall be construed to reduce or otherwise affect any right the city or a grantee has to recover, seek contribution for, or to offset the costs of complying with the requirements of this provision.
(S) Undergrounding. Grantee shall locate or relocate its facilities underground:
(1) During construction in any area where all existing electric and telephone utilities are located underground or in an area where all electric or telephone utilities are required to be relocated underground; and
(2) In any area where all owners of poles locate or relocate facilities underground, concurrently with the placement of the pole owner's facilities underground.
Location or relocation underground according to this provision shall be without direct cost to the city. If funds are available to any person using the public rights-of-way for the purpose of defraying the cost of any of the foregoing, the city shall reimburse the grantee in the same manner in which other persons affected by the requirement are reimbursed. If the funds are controlled by another governmental entity, the city shall make application for such funds on behalf of grantee.
(T) Public works and improvements.
(1) 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 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 or injury to the public or the city's public rights-of-way. If the grantee cannot take such measures, the grantee may be required to relocate its facilities in accordance with this article. In such case, the grantee 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.
(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's 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 city's public rights-of-way.
(3) Nothing herein shall be construed to reduce or otherwise affect any right a grantee has to recover (from a party other than the city), seek contribution for or to offset the costs of complying with the requirements of this provision. If funds are available to any person using the public rights-of-way for the purpose of defraying the cost of any of the foregoing, the city shall reimburse the grantee in the same manner in which other persons affected by the requirement are reimbursed. If the funds are controlled by another governmental entity, the city shall make application for such funds on behalf of grantee.
(U) Moving of buildings. Whenever it becomes necessary to temporarily rearrange, remove, lower, or raise the aerial cables or wires or other apparatus of the grantee to permit the passage of any building, machinery, or other object, the grantee shall perform such rearrangement upon receipt of payment for the estimated costs incurred by the grantee in making such rearrangements, and provided that grantee received written notice at least 30 days in advance 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 aerial plant will be borne 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 unlawfully interferes with the movement.
(V) Interference and review of city project plans. Upon submittal by the city of city construction plans, the grantee will review and identify locations of cables and/or conflicts within two weeks of request. The grantee 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 grantee's facilities if it can be shown to the reasonable satisfaction of the city that the grantee will be subjected to increased costs, 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 and the city determines that the potential adverse effect on the grantee outweighs the harm to the public health, safety or welfare. This does not preclude the city from requiring co-location in common trenches where appropriate.
(W) Restoration of property. The grantee shall reconstruct, replace, or restore in a timely fashion that portion of any street, alley, or public way or place; and any water, sewer, sanitary sewer, storm drainage, traffic signalization or other facility of the city, disturbed or damaged by the grantee, to a condition reasonably acceptable to the city consistent with reasonable standards of safety and appearance as required by generally applicable law and codes adopted pursuant to exercise of the city's police powers.
(X) Supplying maps. Grantee 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 grantee shall furnish to the city, as soon as practicable without charge, current maps, in a hard copy printed form and in the city's Albuquerque Geographic Information System (AGIS) format or compatible data base, showing the location and dimension of any facilities within the franchise area. A grantee supplying maps under this provision may excise proprietary information so long as the location and dimension of any facilities, and their character (e.g. "pole," "equipment cabinet;" fiber optic cable; "power line") are clearly shown.
(Y) Conditions of sale.
(1) If a renewal of a franchise held by a grantee is denied and the city acquires ownership of a grantee's cable system, or effects a transfer of ownership of the system to another person, the valuation of any such acquisition or transfer shall be in accordance with 47 U.S.C. § 547(a).
(2) If a franchise held by a grantee is revoked for cause and the city acquires ownership of the cable system or effects a transfer of ownership of the system to another person, the valuation of any such acquisition or transfer shall be in accordance with 47 U.S.C. § 547(b).
(Z) Utility contracts. Within 30 days of the city's request, the grantee shall make available for city inspection and copying copies of all contracts which it may have with all public utility companies, whereby grantee is granted any right to use any of the property, equipment or facilities of such utility or utilities in the conduct of any operations pursuant to the franchise or franchise renewal awarded to said grantee.
(AA) Failure to perform. If grantee should fail to perform any work required under this Section 13-5-1-13, the city, after written notice and reasonable opportunity to cure, may cause work to be performed, and may bill the grantee therefor, or draw upon any security fund or bond to recover its costs. If the city bills the grantee, the grantee shall pay the amount billed within 30 days of the billing date.
(Ord. 24-2002; Am. Ord. 2017-025)