(A) Subject to compliance with all requirements of BMC Chapter 96 (Regulation of the Public Rights-of-Way) and all applicable provisions of the city's adopted engineering standards, the franchisee may make all needful excavations in any street, alley, avenue, thoroughfare, public utility easement and public highway, in the city where excavation has been authorized for the purpose of placing the franchisee’s facilities, or repairing, renewing or replacing the same. A PUBLIC UTILITY EASEMENT means the space in, upon, above, along, across, over or under an easement for constructing, reconstructing, operating, maintaining, inspecting and repairing utility facilities. A PUBLIC UTILITY EASEMENT does not include an easement solely for the constructing, reconstructing, operating, maintaining, inspecting and repairing of city facilities, or where the proposed use by a utility operator is inconsistent with the terms of any easement granted to the city. The authority granted in this section shall apply only to the extent of the city’s right, title, interest, or authority to grant a franchise to occupy and use such spaces for the franchisee’s facilities. Any such work shall be done in compliance with BMC Chapter 96, the then-current city engineering standards, and all other applicable local, state and federal laws, rules, regulations, ordinances and orders, as may be amended from time to time by the city or other regulatory authority.
(B) The franchisee shall obtain from the city all applicable permits, including a public works right-of-way permit, that will require plan submittal, approval and the payment of fees before any work within the city rights-of-way begins. The franchisee shall file with the city maps, showing the location of the construction, extension or relocation or any of the franchisee’s facilities, and shall obtain the city’s approval of the location and plans prior to the commencement of the work. All facilities installed by the franchisee within the city shall be located so as to cause minimum interference with the proper use of streets, sidewalks, bridges and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the streets, sidewalks, bridges or other public ways or places.
(C) Unless approved by the city, the grantee shall not cut into, excavate or disturb any newly overlaid, paved or constructed street for a period of 5 years from the time of completion of the street overlay, pavement or street construction. In the event that moling, boring or shoulder work are not feasible to construct necessary system improvements or to repair a system failure, the grantee may request, and the city will consider, allowing the grantee to cut the street before the expiration of the 5-year moratorium described in this subsection, subject to appropriate additional compensation charged to the grantee for such damage to the city street.
(D) When any excavation is made by the franchisee into a public right-of-way, the franchisee shall promptly restore the affected portion of the street, sidewalk, bridge, easement area, or public place to the reasonably same or better condition in which it was prior to the excavation. The restoration shall be done in compliance with city specifications, requirements and regulations in effect at the time of the restoration. If the franchisee fails to promptly restore the affected portion of the street, sidewalk, bridge, easement area, or public place to the same condition in which it was prior to the excavation, the city may make the restoration; and the reasonable costs of making the restoration, including the cost of inspection, supervision and administration, shall be paid by the franchisee.
(E) The city reserves the right to require the franchisee to relocate its facilities within the right-of-way in the interest of public convenience, necessity, health, safety, or welfare at no cost to the city and in accordance with BMC §§ 112.050 (Location of Facilities) and 112.052 (Relocation and Removal of Facilities). The city shall provide the franchisee 90-days’ written notice of the requirement to relocate its facilities, after which the franchisee shall promptly commence the relocation of its facilities at no cost to the city. Before requiring a relocation of facilities, the city shall, with the assistance of the franchisee, make a reasonable effort to identify a reasonable location for the relocated facilities within the public ways of the city. If the removal or relocation of facilities is necessitated as a direct result of a private development, the franchisee may charge the expense of removal or relocation to the developer. The franchisee shall be solely responsible for enforcing collection from the developer.
(F) The franchisee shall not be obligated to pay the cost of any relocation that is required or made a condition of a private development. If the removal or relocation of facilities is caused directly or otherwise by an identifiable development of property in the area, or is made for the convenience of a customer, the franchisee may charge the expense of removal or relocation to the developer or customer. The city agrees that it shall reasonably cooperate with the franchisee’s efforts to collect reimbursement from such developers or customers as described in this section.
(G) The franchisee shall provide the city with an accurate map or maps, certifying the location of all of its facilities in the city. The first of these maps shall be provided within 30 days after completion of facility installation in public rights-of-way. The franchisee shall provide updated maps thereafter annually on the anniversary of the date the first map was provided.
(H) The city shall have the right, without cost, to use all poles and suitable overhead structures owned by the franchisee within the public ways for city wires used in connection with its fire alarms, police signal systems, or other communication lines used for governmental purposes; provided, however, any such uses shall be for activities owned, operated or used by the city for public purpose, and shall not include the provision of CATV, internet or similar services to the public. Provided further, that the franchisee shall assume no liability, nor shall it incur, directly or indirectly, any additional expense in connection therewith, and the city’s use of these poles and structures shall be in such a manner as to prevent safety hazards or interferences with the franchisee’s use of same.
(Ord. 2022-07-01, passed 8-9-2022)