All facilities shall be constructed, reconstructed, installed and located in accordance with the following terms and conditions:
(a) Underground Facilities.
(1) Whenever the existing electric, cable, telecommunications and other similar facilities are located underground in a right-of-way, a service provider with permission to occupy the same right-of-way with the electric, cable, telecommunications or other similar facilities, shall also locate its facilities underground.
(2) Facilities shall be installed within an existing compatible underground duct or conduit whenever excess capacity exists within such facility, and where such installation is appropriate and practical under relevant safety and operational standards.
(3) Unless otherwise authorized by the Director of Public Service for good cause, the construction or reconstruction of underground facilities shall utilize trenchless technology, including, but not limited to, horizontal drilling, directional boring, and micro-tunneling, if technically and/or technologically feasible.
(b) Above-Ground Facilities.
(1) No above-ground facilities shall be located in the right-of-way, including any portion of underground facilities, without the express written permission of, and pursuant to a plan approved by, the Director of Public Service.
(2) An applicant may submit a plan for the location of above-ground facilities, only if the applicant establishes that it is not technologically practicable to install the facilities underground. The Director of Public Service's approval may include appropriate landscaping, screening and/or other aesthetic requirements. The Director of Public Service may also suggest an alternate location(s) if the proposed location would, in the Director of Public Service's reasonable judgment, cause realistic health, safety or aesthetic concerns.
(3) Above-ground facilities shall not be located where those facilities would pose an unreasonable hazard to the public's use of the right- of-way. An unreasonable hazard shall include a visual or physical obstruction.
(4) A permittee with a permit to install above-ground facilities shall install its facilities on pole attachments to existing utility poles if there is excess capacity on an existing pole.
(c) Relocation or Removal of Facilities.
(1) Within ninety (90) days following written notice from the City, a permittee shall, at its expense, temporarily or permanently remove, relocate, change or alter the position of any of its facilities in the right-of-way whenever the City determines that such removal, relocation, change or alteration is reasonably necessary for:
A. The construction, reconstruction, maintenance or installation of any City or other public improvement in or upon the right-of-way; or
B. The operations of the City or other governmental entity in or upon the right-of-way.
Notwithstanding the above, a permittee shall not be required to bear the expense of removal, relocation, change or alteration of position of any facilities if such requirement is prohibited by law.
(2) Removal of Unauthorized Facilities.
A. Within thirty (30) days following written notice from the City, any service provider, permittee or other person that owns, controls or maintains any unauthorized system, facility or related appurtenances in the City's right-of-way shall, at its own expense, remove those facilities or appurtenances from the right-of-way.
B. After thirty (30) days have expired, the City may remove the facilities or appurtenances from the right-of-way at the other party's expense. A system or facility is unauthorized and subject to removal in the following circumstances:
1. Upon revocation of the permit to occupy or use the right-of-way; or
2. If the system or facility was constructed, reconstructed, operated or maintained without the City's consent, except as otherwise provided by this Chapter;
3. Upon abandonment of a facility in the right-of-way of the City, with the exception of underground facilities abandoned in a manner authorized and approved by the Director of Public Service;
4. If the system or facility was constructed or reconstructed, or any excavation of a right-of-way was performed, without a permit, except as otherwise provided by this Chapter;
5. If the system or facility was constructed, reconstructed, operated or maintained, or any excavation of a right-of-way was performed, at a location not permitted pursuant to the City's consent for the provider to occupy or use the right-of-way; or
6. If the permittee fails to comply with, or cure a violation of, a material requirement of this Chapter.
Notwithstanding the above, no permittee shall be required to remove unauthorized facilities or appurtenances from the rights-of-way if such requirement is prohibited by law.
(3) Emergency relocation or removal. Subject to applicable state and federal law, the City retains the right and privilege to cut or move any facilities, or stop work on any construction, reconstruction, or excavation, located in the right-of-way, as the Director of Public Service may determine to be necessary, appropriate or useful in response to any need to protect the public health, safety or welfare.
(Ord. 2019-55. Passed 6-3-19.)