(A) Right to construct. Subject to applicable law, generally applicable regulations, rules, resolutions and ordinances of the city, and the provisions of this franchise, grantee may perform all construction in the right-of-way for any facility needed for the maintenance or extension of grantee's cable system.
(B) Right-of-way meetings. Grantee will regularly attend and participate in meetings of the city of which grantee is made aware regarding right-of-way issues that may impact the cable system.
(C) Joint trenching/boring meetings. Grantee will regularly attend and participate in planning meetings of the city of which grantee is made aware to anticipate joint trenching and boring. Whenever it is possible and reasonably practicable to joint trench or share bores or cuts, grantee shall work with other providers, licensees, permittees, and franchisees in order to reduce as much as possible the number of right-of-way cuts within the city subject to the provisions in this section including § 13-5-3-10(T) and (U).
(D) General standard. All work authorized and required hereunder shall be done in a safe, thorough and workman-like manner. All installations of equipment shall be permanent in nature, durable and installed in accordance with good engineering practices.
(E) Permits required for construction. Prior to doing any work in the right-of-way or other public property, grantee shall apply for and obtain appropriate permits, including without limitation excavation and/or barricade permits, from the city pursuant to Chapter 6, Article 5, Part 2, of the Revised Ordinances of Albuquerque. As part of the permitting process, the city may impose such conditions and regulations as are necessary for the purpose of protecting any structures in such right-of-way, proper restoration of such right- of-way and structures, the protection of the public, and the continuity of pedestrian or vehicular traffic, and the joint use of trenches. Such conditions may also include the provision of a construction schedule and maps showing the location of the facilities to be installed in the right-of-way. Grantee shall pay all applicable fees for the requisite city permits received by grantee. Grantee shall complete work in compliance with all permit, construction and building codes, and all other legal requirements; if work is non-compliant, grantee shall be subject to applicable penalties, including the remediation or removal of the infrastructure or equipment improperly constructed and/or installed.
(F) Emergency permits. In the event that emergency repairs are necessary, grantee shall immediately notify the city of the need for such repairs. Grantee may initiate such emergency repairs and shali apply for appropriate permits within 48 hours after discovery of the emergency.
(G) Compliance with applicable codes.
(1) City construction codes. Grantee shall comply with all applicable city construction and zoning ordinances and codes, State of New Mexico construction and building codes, including without limitation the New Mexico Commercial Building Code, the New Mexico Residential Building Code; and other building codes, such as the International Fire Code, the New Mexico Mechanical Code, and other generally applicable zoning codes and regulations.
(2) Tower specifications. Antenna supporting structures (towers) shall be designed for the proper loading as specified by the Electronics Industries Association (EIA), as those specifications may be amended from time to time. Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable federal, state, and local codes or regulations.
(3) Safety codes. Grantee shall comply with all federal, state and city safety requirements, rules, regulations, laws and practices, and employ all necessary devices as required by applicable law during construction, operation and repair of its cable system. By way of illustration and not limitation, grantee shall comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards.
(H) GIS mapping. Grantee shall comply with any generally applicable ordinances, rules and regulations of the city regarding geographic information mapping systems for users of the right-of-way. In addition, grantee shall comply with the following filing and reporting requirements, subject to § 13-5-3-7(B):
(1) Preconstruction: Grantee shall submit preconstruction maps in hard copy printed form and in the city's Albuquerque Geographic Information System (AGIS) or compatible format which shall show the location and dimension of any facilities grantee proposes for the placement in the city's right-of-way.
(2) Post-Construction: Grantee shall submit maps after the completion of construction which shall show the approximate location of installed facilities.
(3) Availability of Maps: Grantee shall maintain on file at all times maps, operational data, and reports showing grantee's network and operations in the city. The city may inspect the maps and data at any time during business hours upon request without charge.
(I) Minimal interference.
(1) Work in the right-of-way, on other public property, near public property, or on or near private property shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners and residents. Grantee's cable system shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or any other property of the city, or with any other electrical, gas or telecommunications infrastructure, including without limitation pipes, wires, conduits, pedestals, structures, or other facilities that may have been laid in the right-of-way by or under the city's authority. Grantee's cable system shall be located, erected and maintained so as not to endanger or interfere with the lives of persons, or to interfere with new improvements the city may deem proper to make or to unnecessarily hinder or obstruct the free use of the right-of-way or other public property, and shall not interfere with the travel and use of public places by the public during the construction, repair, operation or removal thereof, and shall not obstruct or impede traffic. In the event of such interference, the city may require the removal or relocation of grantee's lines, cables, equipment and other appurtenances from the property in question at grantee's expense.
(2) Grantee shall not place any facilities on, over, under, or within any city park or the median portion of any boulevard or parkway except for perpendicular crossings without first having obtained the written permission of the city.
(3) The city reserves the right to regulate the time, location, and manner of work in the right-of-way. The city shall not unreasonably withhold or restrict a grantee's access to particular locations in the right-of-way.
(4) Grantee shall employ trenchless technology in the placement of its facilities where technically and financially appropriate and required by generally applicable code or ordinance.
(J) Prevent injury/safety. Grantee shall provide and use any equipment and facilities necessary to control and carry grantee's signals so as to prevent injury to the city's property or property belonging to any person. Grantee at its own expense shall repair, renew, change and improve its facilities to keep them in good repair and safe and presentable condition. All excavations made by grantee in the right-of-way shall be properly safeguarded for the prevention of accidents by the placement of adequate barriers, fences or boarding, the bounds of which during periods of dusk and darkness shall be clearly designated by warning lights.
(K) Hazardous substances.
(1) Grantee shall comply with any and all applicable laws, statutes, regulations and orders concerning hazardous substances relating to grantee's cable system in the right-of-way.
(2) Upon reasonable notice to grantee, the city may inspect grantee's facilities in the right-of-way to determine if any release of hazardous substances has occurred or may occur from or related to grantee's cable system. In removing or modifying grantee's facilities as provided in this franchise, grantee shall also remove all residue of hazardous substances related thereto.
(3) Grantee agrees to indemnify the city against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the city arising out of a release of hazardous substances caused by grantee's cable system.
(L) Locates. Prior to doing any work in the right-of-way, grantee shall comply with each and every requirement found in Chapter 62, Article 14, of the New Mexico Statutes Annotated 1978, regarding the one-call notification system for the making and locating of underground facilities, as the same may be amended from time to time.
(M) Grantee notice to private property owners; notice of substantial rebuilds and upgrades.
(1) Work on private properties. Grantee shall give notice to private property owners of work on or adjacent to private property in accordance with the city's customer service standards, as the same may be amended from time to time by the City Council acting by ordinance or resolution. Grantee shall not install any cable, line, wire, amplifier, converter or other piece of equipment inside a dwelling or other occupied structure without first securing the permission of the owner or the lawful occupant of the property.
(2) Substantial rebuilds or upgrades. Grantee shall publicize any substantial rebuild or upgrade of its cable system in each affected neighborhood as follows:
(a) At least one week before commencing that work grantee shall provide written notice to the city and those persons whose property is within 300 feet of the work in at least two of the following ways:
(i) Telephone;
(ii) In person;
(iii) Mail;
(iv) Distribution of flyers to residences;
(v) Publication in local newspapers and broadcast television public service announcements;
(vi) Email; or
(vii) Any other notification practice that would reasonably provide notice to the affected subscribers.
(b) The city may require grantee to attend neighborhood meetings about substantial rebuilds and upgrades; and
(c) For the purposes of this subsection, the term "substantial rebuild or upgrade" means the planned replacement or addition of trunk or distribution cable (but not drops) affecting:
(i) More than 10% of the cable system subscribers; or
(ii) Involving more than 16 square miles of plant.
(N) Underground construction and use of poles.
(1) When required by general ordinances, resolutions, regulations or rules of the city or applicable state or federal law, grantee's cable system shall be placed underground at grantee's expense unless funding is generally available for such relocation to all users of the right-of-way. Placing facilities underground does not preclude the use of ground-mounted appurtenances.
(2) Where electric, telephone, and other above-ground utilities are installed underground at the time of cable system construction, or when all such wiring is subsequently placed underground, all cable system lines shall also be placed underground with other wireline service at no direct expense to the city or subscribers unless funding is generally available for such relocation to all users of the right-of-way. Related cable system equipment such as pedestals must be placed in accordance with the city's applicable code requirements and rules. In areas where either electric or telephone utility wiring is aerial, grantee may install aerial cable except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation.
(3) Grantee shall utilize existing poles and conduit wherever possible.
(4) In the event grantee cannot obtain the necessary poles and related facilities pursuant to a pole attachment agreement, and only in such event, then it shall be lawful, upon grantee obtaining all necessary permits and any other required approvals, for grantee to make all needed excavations in the right-of-way for the purpose of placing, erecting, laying, maintaining, repairing, and removing poles, supports for wires and conductors, and any other facility needed for the maintenance or extension of grantee's cable system. All poles of grantee shall be located as designated by the proper city authorities.
(5) This franchise does not grant, give or convey to grantee the right or privilege to install its facilities in any manner on specific utility poles or equipment of the city or any other person.
(O) Undergrounding of multiple dwelling unit drops. In cases of single site multiple dwelling units, grantee shall minimize the number of individual aerial drop cables by installing multiple drop cables underground between the pole and multiple dwelling unit where determined to be technologically feasible in agreement with the owners and/or owner's association of the multiple dwelling units.
(P) Burial standards.
(1) Depths. Unless otherwise required by law, grantee and its contractors shall comply with the following burial depth standards. In no event shall grantee be required to bury its cable deeper than electric or gas facilities, or existing telephone facilities in the same portion of the right-of-way, so long as those facilities have been buried in accordance with applicable law:
(a) Underground cable drops from the curb shall be buried at a minimum depth of 12 inches unless a sprinkler system or other construction concerns preclude it, in which case underground cable drops shall be buried at a depth of at least six inches.
(b) Feeder lines shall be buried at a minimum depth of 18 inches.
(c) Trunk lines shall be buried at a minimum depth of 36 inches.
(d) Fiber optic cable shall be buried at a minimum depth of 36 inches.
(2) Timeliness. Cable drops installed by grantee to residences shall be buried according to these standards within one calendar week of initial installation, or at a time mutually agreed upon between grantee and the subscriber. When freezing surface conditions prevent grantee from achieving such timetable, grantee shall apprise the subscriber of the circumstances and the revised schedule for burial and shall provide the subscriber with grantee's telephone number and instructions as to how and when to call grantee to request burial of the line if the revised schedule is not met.
(Q) Cable drop bonding. Grantee shall ensure that all cable drops are properly bonded at the home, consistent with applicable code requirements.
(R) Prewiring. Any ordinance or resolution of the city that requires prewiring of subdivisions or other developments for electrical and telephone service shall be construed to include wiring for cable systems.
(S) Repair and restoration of property.
(1) Grantee shall protect public and private property from damage. If damage occurs, grantee shall promptly notify the property owner within 24 hours in writing.
(2) Whenever grantee disturbs or damages any right-of-way, other public property or any private property, grantee shall promptly restore the right-of-way or property to at least its prior condition, normal wear and tear excepted, at grantee's sole expense. At a minimum, grantee shall, subject to the terms of any permit issued to grantee, remove all surplus material, reseed as necessary, and otherwise restore the public right-of-way no more than one day after completion of the work, weather permitting.
(3) Right-of-way and other public property. Grantee shall warrant any restoration work performed by or for grantee in the right-of-way or on other public property in accordance with applicable law. If restoration is not satisfactorily performed by grantee within a reasonable time, the city may, after prior notice to grantee or without notice where the disturbance or damage may create a risk to public health or safety, cause the repairs to be made and recover the cost of those repairs from grantee. Within 30 days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, grantee shall pay the city.
(4) Private property. Upon completion of the work which caused any disturbance or damage, grantee shall promptly commence restoration of private property and will use best efforts to complete the restoration within 72 hours, considering the nature of the work that must be performed. Grantee shall also perform such restoration in accordance with the city's customer service standards, as the same may be amended from time to time by the City Council acting by ordinance or resolution.
(5) 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. 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.
(6) Grantee shall ensure its facilities in the public right-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, 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.
(T) City use of grantee's trenches, bores, conduits, or infrastructure.
(1) Grantee agrees to cooperate with the city in the city's use of grantee's trenches, bores, conduits, and/or infrastructure, provided that the city has first notified grantee in some manner that it is interested in sharing the trenches, bores, conduits or other infrastructure such as poles or towers in the area where grantee's construction is occurring.
(2) The city may install or affix and maintain wires and equipment owned by the city for city purposes in or upon any and all of grantee's trenches, bores, conduits, or infrastructure in the right-of-way and other public places without charge to the city, provided space is reasonably available and such placement does not interfere with grantee's use of its facilities.
(3) This right shall not extend to trenches, bores, conduits, or infrastructure owned by an affiliate of grantee who has facilities in the public right-of-way for the provision of non-cable services.
(4) For the purposes of this subsection, "city purposes" include without limitation to the use of the structures and installations for city fire, police, traffic, water, telephone, and/or signal systems, but not for cable service or transmission of telecommunications or information services to third parties in competition with grantee.
(U) Common users; joint trenching and use.
(1) For the purposes of this subsection:
CONDUIT or CONDUIT FACILITY. Any structure or section thereof containing one or more ducts, conduits, manholes, hand hole, or other such facilities in grantee's cable system
DUCT. A single enclosed raceway for cables, fiber optics or other wires.
SURPLUS DUCTS or CONDUITS. Facilities other than those occupied and used by grantee or prior grantee, or used by grantee as emergency use spares, or reasonably projected by grantee for grantee's use within two years from the date of city's request for use.
(2) Grantee acknowledges that the right-of- way has a finite capacity for containing infrastructure such as conduits and ducts. Thus, grantee agrees that whenever the city determines it is impracticable to permit construction of underground conduit, duct, or other infrastructure by any other person with the legal authority to do so, excluding persons providing cable services in competition with grantee, the city may require grantee to afford to such person (third party) the right to use grantee's surplus ducts or conduits pursuant to the terms and conditions of an agreement for use of surplus ducts or conduits entered into by grantee and such other person. Nothing herein shall require grantee to enter into an agreement with such person if in grantee's reasonable determination such an agreement could compromise the integrity of the cable system.
(V) Acquisition of facilities. Upon grantee's acquisition of cable system-related facilities in any city right-of-way, or upon the addition to the city of any area in which grantee owns or operates any such facility, grantee shall within 15 days of the city's request submit to the city a statement describing all such facilities involved, whether authorized by franchise, permit, license or other prior right, and specifying the location of all such facilities to the extent grantee has possession of such information. Such cable system-related facilities shall immediately be subject to the terms of this franchise.
(W) Use of grantee's facilities by third parties. Grantee acknowledges that, notwithstanding any legal rights that a telecommunications provider, cable television provider or any other service provider may have to use the grantee's facilities in the right-of-way, including pole attachments, the city retains a paramount interest in managing the right-of-way. The city shall be solely responsible for enforcement of its permitting requirements as a result of a third party's use of facilities. Grantee agrees that it will comply with any generally applicable city ordinances regarding use of grantee's facilities in the right-of-way, provided, however, that grantee retains its right to challenge any city ordinance or regulation to the full extent allowed by applicable law or this franchise. Grantee shall use best efforts to ensure that no third party entity shall use grantee's facilities where such use violates any lawful city ordinance or regulation.
(X) Discontinuing use/abandonment of cable system facilities. Whenever grantee intends to discontinue using any facility within the right-of-way, grantee shall submit for the city's approval a complete description of the facility and the date on which grantee intends to discontinue using the facility. Grantee may remove the facility or request that the city permit it to remain in place. Notwithstanding grantee's request that any such facility remain in place, the city may require grantee to remove the facility from the right-of-way or modify the facility to protect the public health, welfare, safety and convenience, or otherwise serve the public interest. The city may require grantee to perform a combination of modification and removal of the facility. Grantee shall complete such removal or modification in accordance with a schedule set by the city. Until such time as grantee removes or modifies the facility as directed by the city, or until the rights to and responsibility for the facility are accepted by another person having authority to construct and maintain such facility, grantee shall be responsible for all necessary repairs and relocations of the facility as well as maintenance of the right-of-way in the same manner and degree as if the facility were in active use, and grantee shall retain all liability for such facility. If grantee abandons its facilities, the city may choose to use such facilities for any purpose whatsoever, including but not limited to access purposes.
(Y) Relocation and other movement of cable system facilities for city purposes.
(1) The city shall have the right to require grantee to relocate, remove, replace, modify or disconnect grantee's facilities and equipment located in the right-of-way or on any other property of the city for public purposes in the event of an emergency or when the public health, safety or welfare requires such change (for example, without limitation, by reason of traffic conditions, public safety, right-of-way vacation, right-of-way construction, change or establishment of right-of-way grade, installation of sewers, drains, gas or water pipes, or any other types of structures or improvements by the city for public purposes). Such work shall be performed at grantee's expense. Except during an emergency, the city shall provide reasonable notice to grantee, not to be less than 45 business days, and allow grantee the opportunity to perform such action. In the event of any capital improvement project exceeding $500,000 in expenditures by the city, which requires the removal, replacement, modification or disconnection of grantee's facilities or equipment, the city shall provide at least 60 days' written notice to grantee. Following notice by the city, grantee shall relocate, remove, replace, modify or disconnect any of its facilities or equipment within any right-of-way or on any other property of the city. If the city requires grantee to relocate its facilities located within the right-of-way, the city shall make a reasonable effort to provide grantee with an alternate location within the right-of-way. If funds are generally made available to users of the right-of-way for such relocation, grantee shall be entitled to its pro rata share of such funds.
(2) If grantee fails to complete this work within the time prescribed and to the city's satisfaction, the city may cause such work to be done and bill the cost of the work to grantee, including all costs and expenses incurred by the city due to grantee's delay. In such event, the city shall not be liable for any damage to any portion of grantee's cable system. Within 30 days of receipt of an itemized list of those costs, grantee shall pay the city.
(Z) Reimbursement of grantee costs. Grantee specifically reserves any rights it may have under applicable law for reimbursement of costs related to undergrounding or relocation of the cable system, and nothing herein shall be construed as a waiver of such rights.
(AA) Movement of cable system facilities for other franchise holders. If any removal, replacement, modification or disconnection of the cable system is required to accommodate the construction, operation or repair of the facilities or equipment of another city franchise holder, grantee shall, after at least 30 days' advance written notice, take action to effect the necessary changes requested by the responsible entity. Grantee shall require that the costs associated with the removal or relocation be paid by the benefited party.
(BB) Temporary changes for other permittees. At the request of any person holding a valid permit and upon reasonable advance notice, grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The expense of such temporary changes must be paid by the permit holder, and grantee may require a reasonable deposit of the estimated payment in advance.
(CC) Reservation of city use of right-of-way. Nothing in this franchise shall prevent the city or public utilities owned, maintained or operated by public entities other than the city from constructing sewers, grading, paving, repairing or altering any right-of-way, laying down, repairing or removing water mains, or constructing or establishing any other public work or improvement. Subject to applicable local, state and federal law, all such work shall be done insofar as practicable so as not to obstruct, injure or prevent the use and operation of grantee's cable system.
(DD) Tree trimming. Subject to city ordinance, Article 16, Sections 6-6-2-1 to 6-6-2-9 regarding trees in the right-of-way, and state and federal law, grantee may prune or cause to be pruned, using proper pruning practices, any tree in the city's right-of-way which interferes with grantee's cable system. Grantee shall comply with any general ordinance or regulations of the city regarding tree trimming. Except in emergencies, grantee may not prune trees at a point below 30 feet above sidewalk grade until one weeks' written notice has been given to the owner or occupant of the premises abutting the right-of-way in or over which the tree is growing. The owner or occupant of the abutting premises may prune such tree at his or her own expense during this one week period. If the owner or occupant fails to do so, grantee may prune such tree at its own expense. For purposes of this subsection, emergencies exist when it is necessary to prune to protect the public or grantee's facilities from imminent danger only.
(EE) Inspection of construction and facilities. The city may inspect any of grantee's facilities, equipment or construction at any time upon at least 24 hours' notice or, in case of emergency, upon demand without prior notice. The city shall have the right to charge generally applicable inspection fees. If an unsafe condition is found to exist, the city, in addition to taking any other action permitted under applicable law, may order grantee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition by a time the city establishes. The city has the right to correct, inspect, administer and repair the unsafe condition if grantee fails to do so and to charge grantee for its costs.
(FF) Stop work.
(1) On notice from the city that any work is being performed contrary to the provisions of this franchise, or in an unsafe or dangerous manner as determined by the city, or in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the city.
(2) The stop work order shall:
(a) Be in writing;
(b) Be given to the person doing the work, or posted on the worksite;
(c) Be sent to grantee by overnight delivery at the address given herein;
(d) Indicate the nature of the alleged violation or unsafe condition; and
(e) Establish conditions under which work may be resumed.
(GG) Work of contractors and subcontractors. Grantee's contractors and subcontractors shall be licensed and bonded in accordance with the city's ordinances, regulations and requirements. Work by contractors and subcontractors is subject to the same restrictions, limitations and conditions as if the work were performed by grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by it, and shall ensure that all such work is performed in compliance with this franchise and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is grantee's responsibility to ensure that contractors, subcontractors or other persons performing work on grantee's behalf are familiar with the requirements of this franchise and other applicable law governing the work performed by them.