(A) Responsibility for costs. Except as expressly provided otherwise, any act that a communications facility operator, its contractors or subcontractors are required to perform under this section shall be performed at their cost. If a communications facility operator fails to perform work that it is required to perform within the time provided for performance, the city may perform the work, and bill the communications facility operator therefor. The communications facility operator shall pay the amounts billed within 30 days.
(B) Construction procedures and placement of facilities; obligation to minimize interference with use of public rights-of-way.
(1) The construction, operation and repair of communications facilities are subject to the supervision of all of the authorities of the city that have jurisdiction in such matters and shall be performed in compliance with all laws, ordinances, departmental rules and regulations and practices affecting such facilities. By way of example, and not limitation, this includes zoning codes and safety codes and city construction standards. In addition, the construction, operation and repair shall be performed in a manner consistent with high industry standards. Persons engaged in the construction, operation or repair of communications facilities shall exercise reasonable care in the performance of all their activities, and 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.
(2) Construction, operation or repair of a communications facility shall not commence until written permits required by city code or practice have been filed for and obtained from the proper city officials and all required permit and associated fees paid. In any permit so issued, the city may impose as a condition of the granting of the permit such conditions and regulations as may be necessary to the management of the public rights-of-way, including, by way of example and not limitation, for the purpose of protecting any structures in the public rights-of-way, for the proper restoration of such public rights-of-way and structures, and for the protection of the city and the public and the continuity of pedestrian and vehicular traffic.
(3) Operators of communications facilities must follow city-established requirements for placement of facilities in public rights-of-way, including the specific location of facilities in the public rights-of-way, and must in any event install facilities in a manner that minimizes interference with the use of the public rights-of-way by others, including others that may be installing communications facilities. The city may require that facilities be installed at a particular time, at a specific place, or in a particular manner as a condition of access to a particular right-of-way; may deny access if an operator is not willing to comply with the city’s requirements; may remove any facility that is not installed in compliance with the requirements established by the city, or which is installed without prior city approval of the time, place, or manner of installation and charge the operator of the facility for all the costs associated with removal; and may require a person using the public rights-of-way to cooperate with others to minimize adverse impacts on the public rights-of-way through joint trenching and other arrangements.
(4) Upon order of the City Administrative Officer or his or her designee, all work which does not comply with the permit, the approved plans or specifications for the work, or the requirements of this chapter or other applicable law shall be removed.
(5) The city may require as a condition of issuing any right-of-way permit for underground conduit, the installation of which requires excavation of or along any traveled way, that the franchisee, licensee or holder of the right-of-way permit emplace conduit, in excess of its present and reasonably foreseeable requirements, for the purpose of accommodating other franchisees and licensees for a reasonable charge.
(6) To the extent possible, operators of communications facilities shall use existing poles and conduit in installing their system. In no case may additional poles be installed in the public rights-of-way without the permission of the city; any person who is permitted to install poles must lease capacity on those poles to others, at a rate not higher than the rate that would be permitted if 47 U.S.C. § 224 applied.
(7) Unless otherwise specified in a franchise or license, all facilities shall be constructed, installed and located in accordance with the following terms and conditions:
(a) Communications facilities shall be installed within an existing underground duct or conduit whenever excess capacity exists within the utility facility.
(b) Poles may not be installed without the written permission of the city.
(c) Whenever any existing telephone, electric utility, or cable system facilities are located underground, a person installing another communications facility must also place its communications facilities underground.
(d) Whenever any existing telephone, electric utility or communications facilities are located or relocated underground, operators of other communications facilities that then occupy the same public rights-of-way shall concurrently relocate their respective facilities underground.
(e) Any and all public rights-of-way, public property or private property that is disturbed or damaged during the construction, operation or repair of a communications facility shall be promptly repaired by the communications facility operator that disturbed or damaged the public rights-of-way, public property or private property.
(f) No tree trimming shall be performed without the permission of the city and other affected authorities, and any tree trimming must be performed in strict accordance with the city code of ordinances.
(g) At the end of a scheduled franchise term, the poles and conduits owned by a franchisee shall become the property of the city, unless the city requires their removal; provided, however, that, if a franchise is renewed pursuant to this chapter, the city will continue to allow a franchisee to occupy the poles and conduits at the lowest rate charged to any other commercial entity (not including rates that may be charged through a joint use agreement). If the city elects to require the removal of a franchisee’s poles and conduits, the city shall, within 180 days of the end of a scheduled franchise term, notify a franchisee in writing that the facilities must be removed.
(C) Relocation of facilities.
(1) A communications facility operator shall, by a time specified by the city, protect, support, temporarily disconnect, relocate or remove any of its property when required by the city by reason of traffic conditions; public safety; public right-of-way construction; public right-of-way repair (including resurfacing or widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks or any other type of government-owned communications system, public work or public facility; improvement of any government-owned utility; public right-of-way vacation; or for any other purpose where the work involved would be aided by the removal or relocation of the communications facility. Collectively, such matters are referred to below as the “public work”.
(a) Except in the case of emergencies, the city shall provide written notice describing where the public work is to be performed at least four weeks prior to the deadline by which a communications facility operator must protect, support, temporarily disconnect, relocate or remove its facilities. A communications facility operator may seek an extension of the time to perform such tasks where they cannot be performed in four weeks, even with the exercise of due diligence, and such request for an extension shall not be unreasonably refused.
(b) In the event of an emergency, or where a communications facility creates or is contributing to an imminent danger to health, safety or property, the city may protect, support, temporarily disconnect, remove or relocate any or all parts of the communications facility without prior notice, and charge the communications facility operator for costs incurred.
(2) If any person that is authorized to place facilities in the public rights-of-way requests another communications facility operator receiving the request to protect, support, temporarily disconnect, remove or relocate its facilities to accommodate the construction, operation or repair of the facilities of such other person, the communications facility operator shall, after 30-days’ advance written notice, take action to effect the necessary changes requested. Unless the matter is governed by a valid contract or a state or federal law or regulation, or in other cases where the communications facility that is being requested to move was not properly installed, the reasonable cost of the same shall be borne by the party requesting the protection, support, temporary disconnection, removal or relocation and performed at no charge to the city.
(3) A communications facility operator shall, at the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of the temporary removal or raising or lowering of wires shall be paid by the person requesting the same. A communications facility operator shall be given not less than 14-days’ advance notice to arrange for the temporary wire changes.
(4) A communications facility operator may abandon any property in place upon notice to the city, unless the city determines, in the exercise of its reasonable discretion within 90 days of the notice of abandonment from the operator, that the safety, appearance, functioning or use of the public rights-of-way and facilities in the public rights-of-way will be adversely affected thereby, in which case the operator must remove its property by a date specified by the city.
(D) Facility subject to inspection; operator must provide information.
(1) Every communications facility shall be subject to the right of periodic inspection and testing by the city to determine compliance with the provisions of this chapter, a franchise agreement or license, or other applicable law. The city shall have the right, upon request, to be notified and present when the communications facility is tested by the operator. Each operator must respond to requests for information regarding its system and plans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair, and the purposes for which the plant is being constructed, operated or repaired.
(2) Each operator of a communications facility that places facilities underground shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall locate its facilities for the city at no charge.
(E) Plans for and publicizing work.
(1) Work shall be publicized as the city may direct from time to time.
(2) Each communications facility owner shall provide the city with a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.
(F) No discrimination.
(1) A communications facility operator shall not deny service, deny access or otherwise discriminate against subscribers, programmers or residents of the city on the basis of race, color, creed, national origin, sex, age, conditions of physical disability, religion, ethnic background or marital status.
(2) A communications facility operator shall not discriminate among persons or the city or take any retaliatory action against a person or the city because of that entity’s exercise of any right it may have under federal, state or local law, nor may the operator require a person or the city to waive such rights as a condition of taking service.
(3) Except as federal law prohibits enforcement of this provision, a communications facility operator shall be prohibited from denying access or levying different rates and charges on any group of potential customers because of the income of the residents of the local area in which the group resides.
(4) A communications facility operator shall not refuse to employ, discharge from employment or discriminate against any person in compensation or in terms, conditions or privileges of employment because of race, color, creed, national origin, sex, age, physical disability, religion, ethnic background or marital status. A communications facility operator shall comply with all federal, state and local laws and regulations governing equal employment opportunities, as the same may be from time to time amended.
(Ord. 26-97, passed 9-23-1997)