§ 909.17 GENERAL RIGHTS-OF-WAY USE AND CONSTRUCTION.
   (A)   Right-of-way meeting. A permittee will make reasonable efforts to attend and participate in meetings of the city, of which the permittee is made aware, regarding right-of-way issues that may impact its facilities, including planning meetings to anticipate joint trenching and boring. Whenever passable and reasonably practicable to joint trench, share bores or cuts, and/or utilize existing facilities, a permittee shall work with other providers, licensees, permittees, and franchisees so as to reduce as far as possible the number of right-of-way cuts within the city and the amount of pedestrian and vehicular traffic that is obstructed or impeded.
   (B)   Minimal interference. Work in the right-of- way, on other public property, near public property, or on or near private property shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners and residents. Permittee's facilities shall be constructed and maintained in such a manner as not to interfere with sewers, water pipes, electric, telecommunications, or any other property of the city, or with any other pipes, wires, conduits, pedestals, structures, or other facilities that may have been laid in the rights-of-way by or under the City's authority. The permittee's facilities shall be located, erected and maintained so as not to endanger or interfere with the lives of persons, or to interfere with new improvements the city may deem proper to make or to unnecessarily hinder or obstruct the free use of the rights-of-way or other public property.
   (C)   Underground construction and use of poles. 
      (1)   When required by general ordinances, resolutions, regulations or rules of the city, or applicable state or federal law, permittee's facilities shall be placed or relocated underground at no cost to the city. The placement of public utilities facilities underground, as a first installation or as a relocation from above-ground, shall be subject to the cost recovery provisions set forth in § 908.06(A)(5). Placing facilities underground does not preclude the use of essential ground-mounted appurtenances.
      (2)   Where all facilities are installed underground at the time of permittee's construction, or when all such facilities are subsequently placed underground, all permittee facilities shall also be placed underground at no expense to the city. The recovery of such costs by a public utility placing utility facilities underground shall be subject to the cost recovery provisions set forth in § 908.06(A)(5). Related equipment, such as pedestals, must be placed in accordance with the city's applicable code requirements and rules.
      (3)   For above-ground facilities, the permittee shall utilize existing poles and conduit wherever possible. No permit shall be issued for the construction of new poles or towers in the rights-of- way without the determination of the Deputy City Manager that existing facilities are not available or suitable for the applicants needs and that the proposed new above-ground structures are compatible with existing facilities or uses within the immediate area.
      (4)   Should the city desire to place its own facilities in trenches or bores opened by the permittee, the permittee shall cooperate with the city in any construction by the permittee that involves trenching or boring, provided that the city has first notified the permittee in some manner that it is interested in sharing the trenches or bores in the area where the permittee's construction is occurring. The permittee shall allow the city to place its facilities in the permittee's trenches and bores, provided the city shares proportionally in the cost of the trenching or boring. Should the city desire to install ducts or conduits for the possible use of other entities, then the permittee shall allow the city to place these facilities in the permittee's trenches and bores, provided the city shares proportionally in the cost of trenching and boring. Additionally, should the city install ducts or conduits for their or others use, the permit application fee shall be waived for the permittee for that particular project. The city shall be responsible for maintaining its respective facilities buried in the permittee's trenches and bores under this division.
   (D)   Use of conduits by the city. Unless otherwise restricted by state and federal law, and in accordance with § 908.10, the city may install or affix and maintain its own facilities for city purposes in or upon any and all of permittee's ducts, conduits or equipment in the rights-of-way and other public places, at a charge to be negotiated between the parties, to the extent space is therein or thereon is reasonably available, and pursuant to all applicable ordinances and codes. For the purposes of this division, CITY PURPOSES includes but is not limited to the use of the structures and installations for City fire, police, traffic, water, electric, telecommunications, and/or signal systems.
   (E)   Common users. 
      (1)   Rights-of-way have a finite capacity for containing facilities. Whenever the city determines it is impracticable to permit construction of an additional underground conduit system by any other entity and unless otherwise prohibited by federal or state law or regulations, the city shall require a permittee to afford to such entity the right to use surplus ducts or conduits in common with permittee, pursuant to the terms and conditions of an agreement for use of surplus ducts or conduits entered into by permittee and the other entity. Nothing herein shall require permittee to enter into an agreement with such entity if, in permittee's reasonable determination, such an agreement would compromise the integrity of the permittee's facilities or if such entity refuses to assume liability for the occupancy at the negotiated price or price required by applicable local, state, or federal law. In such case, however, permittee shall provide a written explanation to the Deputy City Manager describing the nature and extent of the compromise of integrity of the facilities or refusal to assume liability, which shall be the basis for denying a permit to such other entity if no other alternative exists. Permittee shall cooperate and present evidence regarding the compromise of integrity on any appeal. In no instance shall the city take action against a permittee required to allow attachment by a new right-of-way occupant pursuant to local, state or federal law, where the city determines that occupancy should be denied. The city shall take action, as it deems appropriate, only against the new right-of-way occupant.
      (2)   If a permittee has permitted use of its conduit to another entity (common user) and thereafter determines that it, the permittee, needs to occupy such conduit for its own use, the permittee shall give its common user(s) 120 days notice, or such greater or lesser notice as may be required by local, state or federal law, of its need to occupy the conduit, and shall require that the common user choose one of the following alternatives:
         (a)   Pay revised conduit rent designed to recover the cost of retrofitting the conduit with space-saving technology sufficient to meet permittee's space needs, including the space needs of other common occupants;
         (b)   Pay revised conduit rent based on the cost of new conduit constructed to meet permittee's space needs, including the space needs of other common occupants;
         (c)   Vacate the needed ducts or conduit; or
         (d)   Construct and maintain sufficient new conduit to meet permittee's space needs and the needs of other common occupants. When two or more common users occupy a section of conduit facility, the last, most recent user to occupy the conduit facility shall be the first to vacate or construct new conduit. When conduit rent is revised because of retrofitting, space-saving technology or construction of new conduit, the cost causer shall bear the entire cost of the expansion or retrofit, but all common users shall bear the ongoing increased rental cost. All facilities shall meet any applicable local, state, and federal clearance and other safety requirements, be adequately grounded and anchored, and meet the provisions of contracts executed between permittee and the other common user. Permittee may, at its option, correct any attachment deficiencies and charge the common user for its costs. Each common user shall pay permittee for any fines, fees, damages or other costs the common user's attachments cause permittee to incur.
(Ord. 9351, passed 7-11-06) Penalty, see § 909.99