156.19 DESIGN AND CONSTRUCTION REQUIREMENTS; STREET AND OTHER PUBLIC IMPROVEMENTS.
(a) Construction.
(1) Subject to applicable laws, regulations and ordinances of the Grantor and the provisions of this Agreement, Grantee may perform all construction necessary for the operation of its Cable System. All construction and maintenance of any and all facilities within Streets incident to Grantee's Cable System shall, regardless of who performs the construction, be and remain the Grantee's responsibility. Grantee shall apply for, and obtain, all generally applicable permits necessary for construction or installation of any facilities, and for excavating and laying any facilities, within the Streets. Grantee shall pay all applicable fees upon issuance of the requisite construction permits by the Grantor to Grantee.
(2) Prior to beginning any construction, Grantee shall provide the Grantor with a construction schedule for work in the Streets. When Grantee's construction of facilities in the Streets is completed, Grantee shall provide the Grantor with a map showing the location of the installed facility in the Streets, as built, in detail, excluding proprietary electronics. All as-builts shall be available at Grantee's local office for inspection.
(3) Grantee may make excavations in Streets for any facility needed for the maintenance or extension of the Grantee's Cable System. Prior to doing such work, Grantee shall apply for, and obtain, generally applicable permits from the Grantor, and give appropriate notices to any other Franchisees, licensees or permittee of the Grantor, or bureaus of the Grantor, or other units of government owning or maintaining pipes, wires, conduits or other facilities which may be affected by the proposed excavation.
(4) In the event that emergency repairs are necessary, Grantee shall immediately notify the Grantor of the need for such repairs. Grantee may initiate such emergency repairs, and shall apply for appropriate permits within forty-eight (48) hours after discovery of the emergency. Grantee shall comply with all applicable Grantor regulations relating to such excavations or construction, including the payment of permit or license fees.
(b) Location of Facilities.
(1) Within forty-eight (48) hours after any Grantor Franchisee, licensee or permittee notifies Grantee of a proposed Street excavation, the Grantee shall, at Grantee's expense:
A. Mark on the surface all of its locatable underground facilities within the area of the proposed excavation;
B. Notify the excavator of any unlocatable underground facilities in the area of the proposed excavation; or
C. Notify the excavator that the Grantee does not have any underground facilities in the vicinity of the proposed excavation.
(2) In the event that all surfaces were accurately marked for underground facilities as requested and Grantee's plant was cut for whatever reason, then the Grantor's franchisee, licensee, or permittee shall be required to notify the Grantee and pay for the repair of the Grantee's plant.
(c) Restoration of Streets.
(1) Whenever Grantee disturbs the surface of any Street for any propose, Grantee shall promptly restore the Street to at least its prior condition. When any opening is made by Grantee in a hard surface pavement in any Street, Grantee shall promptly refill the opening and restore the surface to a condition reasonably satisfactory to the Grantor.
(2) If Grantee excavates the surface of any Street, Grantee shall be responsible for restoration of the Street and its surface within the area affected by the excavation in accordance with applicable regulations of the City. The Grantor may, after providing notice and an opportunity to correct to Grantee, refill and/or repave any opening made by Grantee in the Street, and the expense thereof shall be paid by Grantee. The Grantor may, after providing notice and an opportunity to correct to Grantee, remove and/or repair any work done by Grantee which, in the determination of the Grantor, is inadequate. The cost thereof, including the costs of inspection and supervision, shall be paid by the Grantee. All excavations made by Grantee in the Streets shall be properly safeguarded for the prevention of accidents. All of Grantee's work under this Agreement, and this Section, in particular shall be done in strict compliance with all rules, regulations and ordinances of the Grantor.
(d) Maintenance and Workmanship.
(1) Grantee's Cable System shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or any other property of the Grantor, or with any other pipes, wires, conduits, pedestals, structures, or other facilities that may have been laid in the Streets by, or under, the Grantor authority.
(2) Grantee shall provide and use any equipment and appliances necessary to control and carry Grantee's signals so as to prevent injury to the Grantor's property or property belonging to any person. Grantee, at its own expense, shall repair, renew, change and improve its facilities as listed above in good repair, and safe and presentable condition.
(e) Acquisition of Facilities. Upon Grantee's acquisition of cable related facilities in any Grantor Street, or upon the addition or annexation to the Grantor of any area in which Grantee owns or operates any cable related facility, the Grantee shall, at the Grantor's request, submit to the Grantor a statement describing all facilities involved, whether authorized by Franchise, permit, license or other prior right, and specifying the location of all such facilities to the extent the Grantee has possession of such information. Such facilities shall immediately be subject to the terms of this Franchise.
(f) Reservation of Grantor Streets Rights. Nothing in this Franchise shall prevent the Grantor or public utilities owned, maintained and/or operated by public entities other than the Grantor from constructing sewers; grading, paving, repairing and/or altering any Street; laying down, repairing or removing water mains; or constructing or establishing any other public work or improvement. All such work shall be done, insofar as practicable, so as not to obstruct, injure or prevent the use and operation of Grantee's Cable System. However, if any of the Grantee's System interferes with the construction or repair of any Street or public improvement, including construction, repair or removal of a sewer or water main such portion of the Grantee's System shall be removed or replaced in the manner the Grantor shall reasonably direct, and Grantor shall in no event be liable for any damage to any portion of Grantee's Cable System. Any and all such removal or replacement shall be at the expense of the Grantee. Should Grantee fail to remove, adjust or relocate its facilities by the date established by the Grantor's written notice to Grantee, the Grantor may effect such removal, adjustment or relocation, and the reasonable expense thereof shall be paid by Grantee, including all reasonable costs and expenses incurred by the Grantor due to Grantee's delay.
(g) Street Vacation. If any Street or portion thereof used by Grantee is vacated by the Grantor during the term of this Franchise, unless the Grantor specifically reserves to Grantee the right to continue its installation in the vacated Street, Grantee shall, without delay or expense to the Grantor, remove or discontinue its use of its facilities in such Street, and restore, repair or reconstruct the Street where removal has occurred, and replace the Street in the condition found. In the event of failure, neglect or refusal of Grantee, after a time period to be negotiated by the Grantor and Grantee, to restore, repair or reconstruct such Street, the Grantor may do such work or cause it to be done, and the cost thereof, may be collected by Grantor from the Performance Bond pursuant to Section156.24(c) hereof.
(h) Discontinuing Use of Facilities. Whenever Grantee intends to discontinue using any facility within the Streets, Grantee shall submit for the Grantor's approval a complete description of the facility and the date on which the Grantee intends to discontinue using the facility. Grantee may remove the facility or request that the Grantor permit it to remain in place. Notwithstanding the Grantee's request that any such facility remain in place, the Grantor may require the Grantee to remove the facility from above the Street or modify the facility to protect the public, health, welfare, safety, and convenience, or otherwise serve, the public interest. The Grantor may require the Grantee to perform a combination of modification and removal of any such above-ground facility. Grantee shall complete such removal or modification in accordance with a schedule set by the Grantor. Until such time as Grantee removes or modifies the facility as directed by the Grantor, or until the rights to and responsibility for the facility are accepted by another person having authority to construct and maintain such facility, Grantee shall be responsible for all necessary repairs and relocations of the facility, as well as maintenance of the Street, in the same manner and degree as if the facility were in active use, and Grantee shall retain all liability for such facility.
(i) Hazardous Substances.
(1) Grantee shall comply with all applicable state and federal laws, statutes, regulations, National Electric Safety Code and orders concerning hazardous substances relating to Grantee's Cable System in the Streets.
(2) Grantee shall maintain and inspect its Cable System located in the Streets. Upon reasonable notice to the Grantee, the Grantor may inspect Grantee's facilities in the Streets to determine if any release of hazardous substances has occurred, or may occur, from or related to Grantee's Cable System. In removing or modifying Grantee's facilities as provided in this Franchise, Grantee shall also remove all residue of hazardous substances related thereto.
(3) Grantee agrees to forever indemnify the Grantor against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the Grantor arising out of release of hazardous substances caused by Grantee's Cable System in the Streets.
(j) Undergrounding of Cable. Existing facilities of the Grantee's and existing portions of the Grantee's Cable System shall be placed underground at the Grantee's expense when other utilities in the same rights-of-way place their facilities underground or when required of all utilities and persons by general ordinances of the Grantor or applicable State or federal law.
(k) Construction Codes. Grantee shall strictly adhere to all building and zoning codes currently or hereafter in effect. Grantee shall arrange its lines, cables, and other appurtenances, on both public and private property, in such a manner as to cause no unreasonable interference with the use of said public or private property by any person. In the event of such interference, the Grantor may require the removal or relocation of the Grantee's lines, cables, and other appurtenances from the property in question.
(l) Construction and Use of Poles.
(1) Whenever feasible, the construction, maintenance, and use of Grantee's Cable System shall comply with the standards of materials in engineering and all other provisions of a pole user agreement for use of poles, entered into by and between other pole users and the Grantee. In the event Grantee cannot obtain the necessary poles and allied facilities pursuant to the provisions of such an agreement, and only in such event, then it shall be lawful for the Grantee to make all needed excavations in the Streets for the purpose of placing, erecting, laying, maintaining, repairing, and removing poles, conduits, supports for wires and conductors, and any other facility needed for the maintenance or extension of Grantee's Cable System. All poles of the Grantee shall be erected between the curb and the sidewalk unless otherwise designated by the proper Grantor authorities, and each pole shall be set whenever practicable at an extension lot line. The Grantor shall have the right to require the Grantee to change location of any Grantee owned pole, conduit, structure or other facility within the Streets when in the opinion of the Grantor the public convenience requires such change, and the expense thereof shall be paid by the Grantee.
(2) Nothing herein shall exempt the Grantee from compliance with all Charter and ordinance provisions relating to such excavations or construction of from any provision requiring payment of permit or license fees pertaining thereto.
(m) System Design. The Grantee's Cable System shall comply with the design and service requirements and schedules to be contained in the Franchise Agreement, the attached Exhibits to the Franchise Agreement, and all applicable laws and regulations. All Grantee's construction and design shall be subject to the Grantor's supervision and control, including, without limitation, location of facilities, placement of poles, and the decision to underground any facilities. Grantee shall submit construction drawings and specifications for approval on all projects.
(n) Geographical Coverage. The Grantee shall design and construct its Cable System in such manner as to have the capability to connect and provide Cable Service to every dwelling unit, school, library and municipal agency within the Franchise area provided that any other cable provider should be required to do the same.
(o) System Upgrade Schedule.
(1) The Grantee shall comply with the requirements of the System upgrade schedule to be contained in an Exhibit of the Franchise Agreement.
(2) No less than thirty (30) days prior to the start of construction in the Franchise area, the Grantee shall meet all applicable design and construction standards of the Grantor and shall provide a detailed construction progress schedule, area construction maps, In addition, the Grantee shall update this information upon request by Grantor on quarterly basis, by submitting a copy of its normal internal progress reports, showing specifically whether schedules are being met and the reasons for any delay.
(p) Installation of New Cable System Underground. All new or upgrade Cable System facilities shall be installed underground where existing undergrounded utility facilities exist, but may be installed on existing utility poles where aerial facilities currently exist. In areas where no poles exist, Grantee shall place its facilities underground, and Grantee shall move existing facilities underground whenever all other utilities go underground.
(q) Prewiring. Any law of the Grantor which requires prewiring of subdivisions or other developments for electrical and telephone service shall be construed to include wiring for Cable Systems.
(s) Rights-of-Way Occupancy.
(1) In any case where Grantee has the required written permission from the Grantor not to underground its Cable System facilities, the Grantee shall utilize existing poles, conduits and other facilities whenever possible and economically feasible, and may not construct or install any new, different or additional poles, conduits or other facilities on public property until the written approval of the Grantor is obtained.
(2) The Grantee shall:
A. Locate and install all transmission lines, equipment and structures so as to cause minimum interference with the rights and reasonable convenience of property owners, however Grantee shall retain the right to determine because of technical feasibility and technical reliability where, when, how and if equipment originally installed needs to be redesigned, reconfigured or relocated;
B. Keep and maintain all transmission lines, equipment and structures in a safe, adequate and substantial condition, and in good order and repair;
C. Employ professional care and install and maintain methods and devices for preventing failures and accidents that are likely to cause damage, injuries or nuisances to the public;
D. Use suitable barricades, flags, lights, flares or other devices as necessary for the safety of all members of the public;
E. Place any poles or other fixtures in any public right-of-way in such manner as not to interfere with the usual travel of the right-of-way or cause unsafe conditions of any sort; and
F. Comply with all local and state laws, rules and regulations pertaining to traffic control.
(3) The Grantee may not make paving cuts or curb cuts unless absolutely necessary, and only after written permission and a Street cut permit has been obtained from the Grantor under such conditions as the Grantor shall in its reasonable discretion determine.
(4) The Grantor may reasonably require conduit for underground cable in areas specified by the Grantor, said conduit to be provided at Grantee's sole expense.
(5) Before beginning any excavation or other construction activity on a public right-of-way or easement which crosses or abuts any private property, the Grantee shall clearly mark and delineate with flags, stakes or non-polluting water-soluble spray paint the boundaries of that public right-of-way or easement where it abuts or crosses the private property.
(6) In case of disturbance of any street, sidewalk, alley, easements, public way, grassed or paved area, or any public or private property, the Grantee shall, at its own cost and expense and in a manner approved by the Grantor, replace and restore such Street, sidewalk, alley, easement, public way, grassed or paved area or any other public or private property in as good condition as, or better condition than before the work causing such disturbance was performed.
(7) Grantee shall locate, mark and map any of its installed cable or Cable System for the Grantor at no expense to Grantor. The cable shall be installed so that it can be detected by the use of standard locating devices.
(t) Completion of Work by Grantor. On failure of the Grantee to commence, pursue or complete any work required by law or by the provisions of this Agreement (other than completion of construction or rebuild of the Cable System which shall be governed by Section156.29) or any applicable permit to be done in any public right-of-way or public utilities easement, within the time prescribed and to the reasonable satisfaction of the Grantor, the Grantor may after notice to Grantee and an opportunity to cure cause the work to be done. The Grantee shall pay to the Grantor the reasonable costs of the work in the itemized amount reported by the Grantor to the Grantee within thirty (30) days after receipt of the itemized report.
(u) Removal of Facilities. On receipt of written notice, the Grantee at its own expense shall:
(1) Protect, support, temporarily disconnect, relocate or remove any of its property as necessary because of traffic conditions, public safety, Street vacation or Street grade, separation or realignment, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other type of structure or improvements; and
(2) Nothing described in this Section shall be considered a taking of the property of the Grantee and the Grantee is not entitled to additional compensation because of these actions.
(3) The Grantee shall, on the request of any person, holding a building moving permit issued by the Grantor, temporarily raise or lower its wires to permit the moving of the building or buildings. The Grantee may require reasonable advance payment for any such permittee prior to raising or lowering its wires.
(v) Stop Work.
(1) On notice from the Grantor that any work is being prosecuted contrary to the provisions of this Agreement, or in an unsafe or dangerous manner as determined by the Grantor, or in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the Grantor.
(2) The stop work order shall be:
A. In writing;
B. Given to the individual doing the work, or posted on the work site; and
C. Sent to the Grantee by overnight delivery at the address given herein; and may:
D. Indicate the nature of the alleged violation or unsafe condition; and
E. Establish conditions under which work may be resumed.
(w) Grantee's Contractors. Grantee's contractors shall be licensed and bonded in accordance with Grantor's ordinances, regulations and requirements of all contractors working in the public rights-of-way. Any action or omission of a contractor of the Grantee which violates any provision of this agreement shall be considered an action or omission of the Grantee for the purposes of this Agreement.
(x) Private Property. Except in the case of an emergency involving public safety or service interruption to a large number of subscribers, the Grantee shall give reasonable notice to the property owners or legal tenants prior to entering upon any private premises, and said notice shall specify the work to be performed; provided that in the case of construction operations, such notice shall be delivered or provided, when possible, prior to entry. If any damage is caused by any Grantee activity or omission, the Grantee shall reimburse the property owner the reasonable cost of the damage or replace or repair the damaged property. For installation of pedestals or other major construction or installation projects, property owners shall also be notified by mail at least one week in advance. In the case of an emergency (as defined above), Grantee shall attempt to contact the property owner or legal tenant in person, and shall leave a door hanger notice in the event personal contact is not made. Nothing herein shall be construed as authorizing access or entry to private property of any other property where such right to access or entry is not otherwise provided by law.
(y) Burial Standards.
(1) Depths. The Grantee shall comply with the following burial depth standards unless local ordinances or national electric code standards require a deeper minimum depth:
Cable drops from the pedestal shall be buried at a minimum depth of eight inches (8").
Feeder lines shall be buried at a minimum depth of eighteen to twenty-four inches (18"-24").
Trunk lines shall be buried at a minimum depth of eighteen to twenty-four inches (18"-24")
Fiber optic cable shall be buried at a minimum depth of eighteen to twenty-four inches (18"-24").
(2) Timeliness. Temporary cable drops installed by the Grantee to residences shall be buried according to these standards within two calendar weeks of initial installation. When freezing surface or other adverse weather conditions prevent Grantee from achieving such timetable, Grantee shall apprise the subscriber of the circumstances and the estimated time of burial in writing, and shall provide the subscriber, in writing, with Grantee's telephone number and instructions as to how and when to call the Grantee to request burial of the line if the revised schedule is not met.
(z) National Standards. Grantor shall have the option of adopting any national standards for the installation of optic fiber hereafter promulgated or established.
(aa) Construction Standards.
(1) Grantee shall comply with all applicable Grantor construction codes, including, without limitation, the Uniform Building Code, the Uniform Fire Code, and Uniform Mechanical Code, and the Electronic Industries Association Standard for Physical Location and Protection of Below-Ground Fiber Optic Cable Plant, zoning ordinances and permit procedures. Grantor may charge reasonable permit fees consistent with existing laws for upgrade construction of cable plant. To move the upgrade construction process along Grantor agrees to process all application, reviews, authorizations or consent pertaining to permits, zoning issues, authorizations and consents in a period not to exceed thirty (30) days from written application or request to Grantor. If Grantor fails to do so within said period, said request, application, authorization or consent shall be deemed approved.
(2) All construction practices shall be in accordance with all applicable sections of federal and state Occupational Safety and Health Acts and any amendments thereto as well as all state and local codes and standards where applicable.
(3) All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical Code as amended, and all applicable state and local codes.
(4) Antenna supporting structures (towers) shall be designed for the proper loading as specified in the Electronics Industries Association's R.S. 222-A specifications, as they may be amended from time to time. Antenna supporting structures (towers) 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 and local codes or regulations.
(5) Neither Grantee's plant and equipment, nor any work Grantee performs, shall endanger or interfere in any manner beyond reasonable requirements given the work the Grantee is performing, with the rights of any property owner, or hinder or obstruct pedestrian or vehicular traffic.
(6) The Grantee shall at all times employ professional care and shall install and maintain in use methods and devices to prevent failures and accidents which risk damage, injury or nuisance to the public.
(bb) New Residential Developments. In new residential developments in which all the electric power and telephone utilities are underground, the following procedure shall apply with respect to access to and utilization of underground easements:
(1) The developer shall be responsible for contacting and surveying all Franchised cable operators to ascertain which operators desire (or, pursuant to the terms and provisions of this chapter and any Franchise Agreement, may be required) to provide Cable Service to that development. The developer may establish a reasonable deadline to receive cable operator responses. The final development map shall indicate the cable operators that have agreed to serve the development.
(2) If one (1) or two (2) cable operators wish to provide service, they shall be accommodated in the joint utilities trench on a nondiscriminatory shared basis. If fewer than two (2) operators indicate interest, the developer shall provide conduit to accommodate two (2) sets of cable television cables and dedicate to the City any initially unoccupied conduit. The developer shall be entitled to recover the cost of such initially unoccupied conduit in the event that Grantor subsequently leases or sells occupancy or use rights to any Grantee.
(3) The developer shall provide at least ten (10) working days notice of the date that utility trenches will be open to the cable operators that have agreed to serve the development. When the trenches are open, cable operators shall have two (2) working days to begin the Installation of their cables, and five (5) working days after beginning Installation to complete Installation.
(4) The final development map shall not be approved until the developer submits evidence that:
A. It has notified each Grantee that underground utility trenches are to open as of an estimated date, and that each Grantee will be allowed access to such trenches, including trenches from proposed Streets to individual homes or home sites, on specified nondiscriminatory terms and conditions; and
B. It has received a written notification from each Grantee that the Grantee intends to install its facilities during the open trench period on the specified terms and conditions, or such other terms and conditions as are mutually agreeable to the developer and Grantee, or has received no reply from a Grantee within ten (10) days after its notification to such Grantee, in which case the Grantee will be deemed to have waived its opportunity to install its facilities during the open trench period.
(5) Sharing the joint utilities trench shall be subject to compliance with State regulatory agency and utility standards. If such compliance is not possible, the developer shall provide a separate trench for the cable television cables, with the entire cost shared among the participating cable operators. With the concurrence of the developer, the affected utilities and the cable operators, alternative Installation procedures, such as the use of deeper trenches, may be utilized, subject to applicable law.
(6) Any cable operator wishing to serve an area where the trenches have been closed shall be responsible for its own trenching or other burial operation and associated costs and shall repair all property to the condition which existed prior to such trenching or burial.
(7) In the event that more than one Franchise is awarded, the City reserves the right to require clustering of pedestals with other utilities or Franchisees.
(cc) Street Improvements. Grantor shall give Grantees no less that forty-five (45) days advance notice (or notice as soon as possible in cases of emergency) of Street improvements or other activity which could affect the Cable System, including but not limited to Street or public rights-of-way excavation; construction repair; grading; traffic conditions; installation of sewers; drains or water pipes; power or signal lines; tracks; or vacation or improvement of public works.
(1) All such public works shall be done, insofar as possible, in such a manner as not to obstruct, injure, or prevent the free use and operation of the poles, wires, conduits, conductors, pipes or appurtenances of the Cable System. Nothing contained herein shall relieve any person or entity from liability arising out of the failure to exercise reasonable care to avoid interfering with Cable System facilities while performing the public works.
(2) If any equipment of Grantee shall interfere with public works, then, upon receipt of the 45-day notice, that part of the equipment of Grantee which interferes shall be removed or replaced by the Grantee in such manner as shall be directed by Grantor so that the same shall not interfere with the public works as reasonably determined by Grantor, and Grantee shall bear the reasonable expense of such removal or replacement.
(Ord. 1997-25. Passed 12-9-97.)