(A) Upon the request of the city. Whenever the city shall, in its exercise of the public interest, request that a franchisee relocate or reinstall any of its facilities, the franchisee shall, within ten days, remove, relocate, or reinstall any such facilities as may be reasonably necessary to meet the request. The cost of the relocation, removal, or reinstallation of the facilities shall be the exclusive obligation of the franchisee.
(B) Upon the request of any other person. Upon request of any other person requesting relocation of facilities and holding a validly-issued building or moving permit of the city, a franchisee shall, within ten days, temporarily raise, lower, or relocate its wires or other facilities as may be required for the person to exercise the rights under the permit; provided, however, that the franchisee may require the permit holder to make payment to the franchisee in advance for any expenses incurred by the franchisee in temporarily moving its facilities pursuant that person’s request.
(C) Existing facilities.
(1) (a) Notwithstanding any provision of this chapter to the contrary, the provisions of this division shall not apply to:
1. Facilities located in or above the “Communication Worker Safety Zone,” as that term is defined in the National Electrical Safety Code; or
2. Any electric supply facilities, wherever located.
(b) Make-ready costs that are to be paid by a new attacher include, without limitation, all costs and expenses to relocate, rearrange, transfer, or alter the attachments or facilities of any preexisting attacher as may be necessary to accommodate the new attacher’s attachment.
(2) Upon the pole owner’s approval of an attachment application, the new attacher shall notify an affected preexisting attacher of the need to relocate, rearrange, transfer, or alter its attachments or facilities as may be necessary to accommodate a new attacher’s attachment, specifying the work to be performed. Upon request from the new attacher, a pole owner shall provide the new attacher with any existing information the pole owner has with respect to all existing attachers’ contact information.
(3) For purposes of this section, a relocation, rearrangement, transfer, or alteration that would cause, or would reasonably be expected to cause, a service outage to a preexisting attacher (taking into account the amount of available slack or tension on its lines, and the impact on its facilities during any relocation, including specifically the need for adherence to safety principles outlined under applicable standards) includes any work that requires the cutting, splicing, or other disconnection of a preexisting attacher’s facilities; work on facilities that cross an interstate highway (i.e., a roadway that comprises the Dwight D. Eisenhower National System of Interstate and Defense Highways, and other interstate highways as designated by the U.S. Secretary of Transportation) or a non-interstate roadway with access points limited to on-ramp and off-ramp locations and directional travel lanes, usually separated by a physical barrier; work on facilities that cross a railroad; work on facilities located on a bridge; or work involving vertical risers, power supplies, double-framed poles, or locations that would not allow access to preexisting attacher’s facilities for maintenance or installation after the work is complete.
(4) For purposes of this section, a preexisting attacher shall maintain a list of approved contractors, and shall make the list available to new attachers within five days of a new attacher’s written request for such a list. A preexisting attacher shall not unreasonably restrict the number of contractors it approves, or unreasonably refuse to approve a contractor that a new attacher requests to be approved. A new attacher seeking approval of a contractor shall identify the contractor and request it be approved at the time it provides the notice required by division (C)(2). The preexisting attacher shall approve or deny approval of the new attacher’s proposed contractor within 20 days of such notice. If the preexisting attacher denies approval of the proposed contractor, it shall identify its reasons for doing so in writing. The fact that the preexisting attacher does not have a contract with the new attacher’s proposed contractor shall not, without more, be a reasonable basis for refusing to approve a new attacher’s proposed contractor.
(5) (a) Upon notice from a new attacher described in division (C)(2), all preexisting attachers shall have 30 days, running concurrently, from the receipt of such notice either to:
1. Relocate, rearrange, transfer, or alter its facilities;
2. Authorize the new attacher to relocate, rearrange, transfer, or alter its facilities, using contractors approved by the preexisting attacher; or
3. Provide a written response, stating that the work will cause a service outage and why, or stating any other reason why its facilities cannot be reasonably relocated, rearranged, transferred, or altered.
(b) In the event any affected preexisting attacher does not perform such work or provide a written response within 30 days, the new attacher may perform the work, using contractors approved by the preexisting attacher.
(6) If preexisting attacher provides a written response, stating that the work will cause a service outage or stating any other reason why its facilities cannot be reasonably relocated, rearranged, transferred, or altered pursuant to division (C)(3), the preexisting attacher shall have 60 days, running concurrently, from receipt of the notice required by division (C)(2), either to relocate, rearrange, transfer, or alter its facilities, or to otherwise coordinate with the new attacher to effectuate the relocation, rearrangement, transfer, or alteration of its facilities. In the event any affected preexisting attacher does not perform such work or coordinate with new attacher within 60 days for such work to be completed, the new attacher may perform the work, using contractors approved by the preexisting attacher; provided, however, that with respect to make-ready work on the preexisting attacher's facilities that would cause, or would reasonably be expected to cause, a service outage, the new attacher shall provide a minimum of ten days’ prior notice, identifying with specificity where and when it will perform such work.
(7) For large projects, where the new attacher will attach to poles involving a preexisting attacher, where the average rate of new attachment installations will be 100 poles or more per week, the new attacher must notify all preexisting attachers affected by the project at the same time the new attacher submits to a pole owner its first attachment application related to the project, and must reach mutual agreement with each preexisting attacher on a timeline for relocating, rearranging, transferring,
or altering the preexisting attacher’s facilities. In the event the parties are unable to reach mutual agreement prior to the notice required by division (C)(2), the procedures described in division (C)(6) shall apply to such work, except that the preexisting attacher shall have 105 days, running concurrently, from receipt of the notice required by division (C)(2), either to relocate, rearrange, transfer, or alter its facilities.
(8) Within 30 days of its completion of any relocation, rearrangement, transfer, or alteration, the new attacher will send notice of the move and as-built reports to the preexisting attacher, the pole owner, and the owner(s) of any other structures on which such work was performed. The as-built reports will include a unique field label identifier, and an address or coordinates. Upon receipt of the as-built reports, the preexisting attacher and pole owner or other structure owner(s) may conduct an inspection within 30 days. The new attacher will pay the actual, reasonable, and documented expenses incurred by the preexisting attacher and pole owner or structure owner(s) for the inspection. If any such relocation, rearrangement, transfer, or alteration results in the facilities of the preexisting attacher on the pole or other structure failing to conform with applicable standards, the preexisting attacher will notify new attacher within seven days of the inspection. In the notice, the preexisting attacher will elect to either: (a) perform the correction itself and bill the new attacher for the actual, reasonable, and documented costs of the correction; or (b) instruct the new attacher to correct such conditions at new attacher’s expense, using contractors approved by the affected preexisting attacher. Any post-inspection corrections performed by the new attacher must be completed within seven days of such notification.
(9) Nothing in this section shall be construed to limit or preempt liability under applicable law for damages suffered by any party as a result of work performed pursuant to this section that does not conform with applicable standards.
(10) As a condition of exercising the ability to relocate, rearrange, transfer, or alter a preexisting attacher’s facilities pursuant to division (C), the new attacher shall indemnify, defend, and hold harmless the affected preexisting attacher and pole owner or other structure owner(s) on which the relocation, rearrangement, transfer, or alteration takes place, the affiliates of such preexisting attacher and pole owner or other owners, and the officers, directors, and employees of such preexisting attacher and pole owner or other owners and their affiliates (each an “indemnitee”) from and against all third-party damage, loss, claim, demand, suit, liability, penalty, or forfeiture of every kind and nature, including, but not limited to, costs and expenses of defending against the same, payment of any settlement or judgment therefor and reasonable attorney’s fees that are actually and reasonably incurred by an indemnitee by reason of any claim arising from the relocation, rearrangement, transfer, or alteration.
(11) In the event the new attacher fails to pay the preexisting attacher’s make-ready costs, fails to correct non-compliant work according to the time frames specified in division (C)(8), fails to compensate the preexisting attacher for damage caused by the new attacher’s work, or otherwise fails to meet its obligations to the preexisting attacher in this section, the preexisting attacher shall have the right to refuse the new attacher’s requests to relocate, rearrange, transfer, or alter the preexisting attacher’s facilities until such time as the new attacher complies with its obligations under this section.
(12) A preexisting attacher and a new attacher may mutually agree to modify any of the rights and obligations specified herein, and shall work in good faith to modify any time periods specified herein to account for unforeseen circumstances, including, but not limited to, weather events and high volumes of make-ready work.
(Ord. 4, Series 2020, passed 10-8-2020)