The cable system shall be constructed, operated and maintained in accordance with the requirements of HCO Chapter 100, in addition to the requirements that are set forth in this chapter. No requirement herein shall be read to limit or condition any of the rights of the city under applicable law or HCO Chapter 100. Instead, these are minimum requirements which the franchisee must always satisfy, notwithstanding any other change in law. It is the duty of the franchisee to construct, operate and maintain its cable system, and to move and relocate its facilities, so that the city is not required to bear any costs or delays as a result of the cable system's occupation of the rights-of-way, so that the public is not discommoded, and so that the use of the rights-of-way by the city and by others is not impeded. It is the duty of franchisee to repair any damage caused to the rights-of-way or public property promptly to specifications of the city or other responsible authority and to compensate the property owner for any loss. It is likewise the duty of franchisee to repair promptly any damage caused to private property and to compensate the private property owner for any loss. Unless expressly provided otherwise, costs associated with complying with this section and with applicable law shall be borne by the franchisee, with no cost to the city.
(A) Standards for construction, operation and maintenance.
(1) Compliance with safety codes. The construction, operation and maintenance of the system shall be performed in accordance with all applicable sections of the Occupational Safety and Health Act of 1970 and any amendments thereto as well as all state and local law where applicable.
(2) Compliance with electrical codes. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the code or codes adopted by the city, as amended.
(3) Antennas and towers. Antenna supporting structures (towers) shall be designed for the proper loading zone as specified in Electronics Industry Association's R.S. 222A. Specifications shall not violate any zoning or other land use regulation adopted by the city.
(4) Compliance with aviation requirements. Antenna supporting structures (tower) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local codes and regulations.
(5) Construction standards and requirements. All of the franchisee's plant and equipment (including, but not limited to, the antenna site, head-end and distribution system, towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances) shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices and performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the municipality may deem proper to make, to interfere in any manner with the rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic on municipal properties.
(6) Safety and nuisance requirements. The franchisee shall at all times employ reasonable care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.
(B) Cable system design requirements. Throughout the franchise term, the cable system shall:
(1) Provide cable service to an unserved area of the city, which is less than 70 contiguous acres;
(2) Be capable of continuous 24-hour daily operation;
(3) Be capable of operating over an outdoor temperature range of -20°F to +120°F and meeting all specifications as set forth herein over the temperature range without catastrophic failure or irreversible performance changes over variations in supply voltages from 105 to 130 volts AC;
(4) Be operated in such a manner as to avoid causing interference with reception of off-the-air signals by non-subscribers;
(5) Be designed, installed and operated so as:
(a) To assure the delivery to all subscribers of standard color and monochrome signals on all channels without noticeable picture degradation or visible evidence of color distortion or other forms of interference directly attributable to the performance of the cable system; or
(b) To meet FCC minimum standards in effect at the time of the adoption of the chapter and such stricter or additional standards as may be adopted.
(6) Provide and maintain a high degree of reliability, comparable to the reliability achieved with the most reliable cable systems upgraded or rebuilt after 1996. Reliability refers both to the ability to operate without outages on any channel, and the ability to continuously meet applicable technical and performance standards.
(C) Technical standards. The cable system shall, at all times, comply with the technical standards established by the FCC or contained in HCO Chapter 100.
(D) Performance monitoring
(1) Test procedures used in verification of the performance criteria set forth herein, if not as set forth in paragraph 76.609, Subpart K of the FCC Rules and Regulations, shall be in accordance with good engineering practices and shall be fully described in an attachment to an annual certificate which shall be filed with the city. The city may establish a deadline for submission of the certificate if one is not established under federal law.
(2) To the extent that the report of measurements as required above may be combined with any reports of measurements required by the FCC or other regulatory agencies, the city shall accept such combined reports provided all standards and measurements herein or hereafter established by the city are satisfied.
(3) At any time after commencement of service to subscribers, the city may require or conduct on its own additional tests, full or partial repeat tests, different test procedures or tests involving a specific subscriber's terminal. Additional tests may be made on the basis of complaints or at the discretion of the city. The city will endeavor to so arrange its tests or requests for such special tests so as to minimize hardship or inconvenience to franchisee or to the subscriber.
(E) Street occupancy.
(1) The franchisee shall utilize existing poles, conduits and other facilities whenever possible and shall not construct or install any new, different or additional poles, conduits or other facilities whether on public property or on privately owned property until written approval of the city is obtained. However, no location of any pole or wire holding structure or other facility of the franchisee shall be a vested interest and the poles or structures or facilities shall be removed or modified by the franchisee at its own expense whenever the city or any person acting on the city's behalf determines the public or the city's convenience would be enhanced thereby.
(2) The cable system of the franchisee shall be installed underground in those areas of the city where existing telephone or electric services are underground at the time of system construction. In areas where telephone and electric utility facilities are installed aerially at the time of system construction, the franchisee may install its facilities aerially with the understanding that at such time as the existing aerial facilities are required to be placed underground by the city, the franchisee shall likewise place its facilities underground.
(3) A franchisee shall apply to the city at least ten calendar days prior to the date franchisee commences any construction in any public rights-of-way. The city shall cooperate with the franchisee in granting any permits required providing such grant and subsequent construction by the franchisee shall not unduly interfere with the use of such public rights-of-way and that proposed construction shall be done in accordance with pertinent ordinance provisions or any other requirements of the city. However, nothing herein relieves franchisee of any of its permitting obligations or requires the city to give preferential treatment to the franchisee in issuing permits; and nothing herein limits the city's authority to deny permits. The city shall issue an annual blanket permit for emergency-type system repairs that must be performed in the rights-of-way, but franchisee must keep records showing each case in which the permit was used and the use qualified as an emergency.
(4) All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times shall be kept and maintained in a safe, adequate, substantial condition and in good order and repair. The franchisee shall at all times employ reasonable care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by the franchisee shall be placed in such a manner as not to interfere with the usual travel on such public rights-of-way.
(5) The franchisee shall, at its own expense and in a manner approved by the city, promptly restore to city standards and specifications any damage or disturbance caused to the public rights-of-way or other public property as a result of its operations or construction on its behalf.
(6) Whenever, in case of fire or other emergency, it becomes necessary in the judgment of the Mayor, City Administrative Officer, Public Works Director, Fire Chief or Police Chief to remove any of the franchisee's facilities, the city may do so without prior notice.
(7) The franchisee or its designee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the city. Trimming of trees on private property shall require written consent of the property owner, a copy of which shall be filed with the city prior to commencement of any trimming. All tree trimming must be performed in strict accordance with applicable laws and accepted arborist's standards. Franchisee is solely liable for any damage caused by tree trimming.
(8) The franchisee at its expense shall protect, support, temporarily disconnect, relocate or remove any of its property when, in the opinion of the city, the same is required by reason of traffic conditions; public safety; street vacation; freeway or street construction; change or establishment of street grade; or installation of sewers, drains, waterpipes, power lines, signal lines, transportation facilities, tracks or any other type of structures or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement including but not limited to movement of buildings, urban renewal and redevelopment or any program under which the city shall undertake to cause all such properties to be located beneath the surface of the ground, street vacation or for any other reason where the convenience of the city or the public would be served thereby. If the franchisee fails to move its facilities by a time specified by the responsible government authority, that authority may perform the work and bill the franchisee therefore.
(9) The franchisee shall promptly move and relocate its cable system for any private party authorized to occupy the public rights-of-way to accommodate the construction, operation or maintenance of facilities by such party. Costs shall be borne as provided by applicable law. Franchisee shall also promptly move and relocate its cable system for any private person holding a valid permit authorizing movement of oversized objects. However, franchisee may refuse to move and relocate its facilities under this chapter if the third party does not agree to bear the costs of movement and relocation.
(10) Upon failure of franchisee to commence, pursue or complete any work required by law (including HCO Chapter 100) or by the provisions of this chapter to be done in any public right-of-way within the time prescribed and to the reasonable satisfaction of the city and other affected party, the city or other affected party may, at its option, cause the work to be done and the franchisee shall pay to the city and the affected party the cost thereof in the itemized amounts reported by the entities to franchisee within 30 calendar days after receipt of such itemized report.
(11) The franchisee shall make no paving cuts or curb cuts unless absolutely necessary, and only after the proper permit has been issued by the city.
(12) The franchisee shall install, in conduit, all cable passing under any roadway.
(13) To the extent permitted by law, franchisee shall have no monetary recourse whatsoever against city or its Mayor and Council, City Administrative Officer, officials, boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision or requirement of this chapter or HCO Chapter 100 because of the enforcement of this chapter or HCO Chapter 100, or any action taken pursuant thereto including damages that may be caused by movement or removal of the cable system during emergencies or in the course of any other activity of the city in the public rights-of-way, except in cases where the damage is the result of the city's gross negligence or willful misconduct. In no event shall the city be liable to franchisee for any losses resulting from the interruption of its business, or for any other consequential damages, punitive damages or exemplary damages. The rights of city under this provision are in addition to and shall not be read to limit any immunities the city may enjoy or rights the franchisee may enjoy under federal or state law or other provisions of this chapter.
(Ord. 02-2007, passed 1-16-2007)