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(1) Length of license. Any license granted by the city pursuant to this chapter shall commence upon execution of the license agreement by the licensee and the city and shall be for a period specified by the license. All licenses shall be subject to periodic review by the city to evaluate whether the cable system's technology is meeting the community's needs and interests. Any license shall also provide that following such review, the city may require a licensee to make any changes necessary to reasonably upgrade the cable system's technological capabilities. The city may expressly waive such requirement in the event it determines that the cable system reasonably meets the city's technological needs and interests. In no event shall any license exceed a term of fifteen (15) years, subject to the conditions and restrictions as provided in this chapter. A license agreement may be renewed pursuant to the provisions of this chapter and federal law. No privilege or exemption shall be inferred from the granting of any license unless it is specifically prescribed.
(2) No right of property. The granting of any license pursuant to this chapter shall be a privilege and shall not impart to the licensee any right of property in any city rights-of-way or other city property.
(Ord. No. 8937, § 2, 9-2-97)
(1) Continuing regulatory jurisdiction. The mayor and council shall have continuing regulatory jurisdiction and supervision over the operation of any license granted pursuant to this chapter. However, it is recognized that the daily administrative, supervisory and enforcement responsibilities of the provisions of this chapter and the license agreement shall be delegated and entrusted to the city manager, or his designee, as hereafter provided.
(2) The city manager shall have the following responsibilities and authority:
(a) Interpret, administer and enforce the provisions of this chapter and the license agreement;
(b) Represent the city in all matters pertaining to the implementation of the provisions of this chapter and the license agreement;
(c) Resolve disputes or disagreements between subscribers, users, potential subscribers and users, and the licensee as to matters involving an interpretation of this chapter or the license agreement, or other matters subject to the city's jurisdiction, but only in the event that such parties are unable first to resolve their dispute; provided that, nothing in this section is meant to waive any rights a licensee may have to appeal the city's resolution of a dispute.
(d) Review and audit reports and other documents submitted to the city as required by this chapter or other law, so as to ensure that the necessary reports are completed and fulfilled pursuant to the terms of this chapter;
(e) Assure that all records, rules and charges pertinent to the system are made available for inspection at reasonable hours upon reasonable notice consistent with the license agreement and applicable law;
(f) Confer with licensees, assist in coordination among licensees, and enforce requirements under applicable law and license agreements for interconnections among cable systems and other systems;
(g) Consistent with this chapter, establish and administer sanctions as authorized by the mayor and council to ensure compliance with this chapter;
(h) Advise the mayor and council on matters which may constitute grounds for termination or revocation of the license agreement in accordance with this chapter and a license;
(i) Advise the mayor and council on proposed transfers of the system;
(j) Consistent with this chapter, promulgate regulations regarding the construction, reconstruction, operation, maintenance, dismantling, testing or use of the system as necessary;
(k) Ensure that the licensee makes any public access channel available to all residents of the city on a nondiscriminatory basis;
(l) Ensure that the operation of any public access channel is free of program censorship and control to the extent permitted by law;
(m) Perform any other duties assigned under the provisions of this chapter or other legislation which may hereafter be enacted by the mayor and council or such other related duties as the mayor and council may direct.
(Ord. No. 8937, § 2, 9-2-97)
(1) The city may issue a nonexclusive license for any or all portions of the city's jurisdictional limits as delineated in the request for proposals. Upon the annexation of any additional land area by the city, the annexed area shall thereafter be subject to all the terms of this chapter and the license agreement immediately upon notification to the licensee of the annexation by the city.
(2) A licensee shall construct and operate its cable system so as to provide service to all parts of its license area as provided in the license agreement and having a density of at least fifteen (15) residential dwelling units per street half-mile of system or where eight (8) residential dwelling units per street half-mile agree to subscribe to cable service for at least one (1) year. In addition, all areas which reach such density at any time during the license term shall be provided service upon reaching the minimum density.
(3) Where the density is less than that specified above, the licensee shall inform persons requesting service of the possibility of paying for installation or a line extension and shall offer to provide them with a free written estimate of the cost, which shall be provided within fifteen (15) working days of such a request. The charge for installation or extension for each person requesting service shall not exceed a pro rata share of the actual cost of extending the service. If, for example, the density in an area were three (3) residential units per half mile, licensee would pay one-fifth ( 1/5) of the costs of the extension and persons agreeing to take service would pay the remaining four-fifths.
(4) Any residential dwelling unit located within one-hundred and twenty-five (125) feet of the closer of (a) the nearest edge of the public right-of-way or (b) the nearest tap on a licensee's system shall be connected to the cable system at no charge other than the standard installation charge (plus extension charges, if any, that would apply under section 7A11(2)-(3)). In determining what is the drop length from the "nearest edge of the right-of-way," the drop length will be measured to the nearest edge of the right-of-way directly adjoining the premises of the subscriber, in the direction in which the licensee's plant is located (or is to be located, in a case involving a line extension). The licensee shall, upon request by any potential subscriber residing in the city beyond the 125-foot limit, extend service to such subscriber provided that the subscriber shall pay the net additional drop costs.
All measurements must be made in a manner most favorable to the person requesting service.
(5) Under normal operating conditions, if licensee cannot perform installations within the times specified in applicable customer service standards, the subscriber may request and is entitled to receive a credit equal to the charge for a standard installation. For any installation that is not a free installation or a standard installation, the licensee shall provide the subscriber with a written estimate of all charges within seven days of a request by the subscriber. Failure to comply will subject licensee to appropriate enforcement actions. This section does not apply to the introduction of new products and services when licensee is utilizing a phased introduction.
(6) In all cases where new developments and subdivisions are to be constructed to be served in whole or in part by underground power and telephone utilities, the owner or developer of such areas shall provide reasonable notice to the licensee of the availability of trenches, backfill and specifications of all necessary substructures in order that the licensee may install all necessary electronic cable facilities. In no event shall such undergrounding be at any cost or expense to the city.
(7) Subject to the other provisions of this section 7A-11, cable service shall be made available upon request to all individual residential dwellings, multiple-unit residential dwellings, condominiums, cooperative buildings, townhouses, institutions, organizations, businesses and all other structures within the designated license area.
(8) Nothing in this section shall prohibit a person from requiring that cable system facilities conform to laws and regulations and reasonable conditions necessary to protect safety, functioning, appearance and value of premises or the convenience and safety of persons and property.
(9) Nothing in this section shall prohibit a person from requiring the licensee to agree to indemnify or compensate the owner for damages or from liability for damages caused by the installation, operation, maintenance or removal of system facilities by the licensee.
(Ord. No. 8937, § 2, 9-2-97)
(1) New licensees shall interconnect their system with any or all other systems located in the city or within the county for PEG and I-Net purposes upon the directive of the city. For existing licensees, the interconnect requirements shall be determined through the license renewal process under this chapter, subject to federal law. Interconnection of systems may be done by direct cable connection, microwave link, satellite or other appropriate methods. Interconnection may be required for one or several channels of the system, including but not limited to PEG channels.
(2) Upon receiving the directive by the city to interconnect, the licensee shall immediately initiate negotiations with the other affected system or systems in order that costs may be shared equally by the systems for both the construction and operation of the interconnection link.
(3) Each licensee shall cooperate with any city-county interconnection authority, the provisions of any city-county intergovernmental agreements, regional interconnection authority or state or federal regulatory agency which may be established for the purpose of regulating, facilitating, financing or otherwise providing for the interconnection of cable systems within and beyond the boundaries of the city. A licensee may be granted reasonable extensions of time to interconnect, or the city may suspend any order it may have issued to interconnect upon petition by the licensee to the city if the city finds that the licensee has negotiated in good faith and has failed to obtain agreement from the system of the proposed interconnection, or has demonstrated that interconnection is technically unfeasible. Nothing in this section 7A-12(3) creates an obligation to physically interconnect with another system where that obligation does not arise under a license agreement or other applicable law.
(4) Any connection whatsoever of the licensee's system with any other system shall not relieve the licensee of any of its obligations under this chapter or the license agreement.
(5) Once the city directs a licensee to interconnect, the licensee is under an obligation to interconnect promptly. The licensee shall have sixty (60) days to reach an agreement on the terms of interconnection, and to submit that agreement to the city. In the event that the parties to the agreement fail to submit that agreement, either may submit its interconnection proposal to the city. The city, after public hearing, may establish the interconnection requirements, and the parties shall promptly interconnect in accordance with the city's direction. However, nothing in this section prevents either party from appealing the city's order to a court of competent jurisdiction if the party believes that it is unreasonable.
(Ord. No. 8937, § 2, 9-2-97)
(1) A licensee shall first obtain the written approval of the city engineer prior to commencing construction on the rights-of-way and public places of the city. Approval shall be in accordance with relevant Charter and Code provisions and administrative regulations, which approval shall not be unreasonably withheld. The licensee shall notify the city at least ten (10) days prior to the commencement of any construction in any rights-of-way.
(2) The licensee shall not open or disturb the surface of any rights-of-way or public place for any purpose without first having obtained a permit to do so in the manner provided by law. All excavation shall be coordinated with other utility excavation or construction so as to minimize disruption to the public.
(3) Use of existing poles or conduits.
(a) The licensee 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 the written approval of the city is obtained. No location or any pole or wire-holding structure of the licensee shall be a vested interest, and such poles or structures shall be removed or modified by the licensee at its own expense whenever the city determines that the public convenience would be enhanced thereby.
(b) The facilities of the licensee shall be installed underground in those areas of the city where existing telephone and electric services are both underground at the time of construction by the licensee. In areas where either telephone or electric utility facilities are installed aerially at the time of system construction, the licensee may install its facilities aerially; however, at such time as the existing aerial facilities are placed underground, the licensee shall likewise place its facilities underground at sole cost to the licensee.
(4) All transmission and distribution structures, lines and equipment erected by the licensee shall be located so as to cause minimum interference with the unencumbered use of rights-of-way and other public places and minimum interference with the rights and reasonable convenience of property owners who adjoin any of the rights-of-way and public places.
(5) In case of disturbance or damage caused by the licensee to any rights-of-way or public place, the licensee shall, at its own cost and expense and in the manner approved by the city, replace and restore such rights-of-way or public place in as good or better a condition as before the work performed by the licensee which caused such disturbance or damage.
(6) At any time during the period of the license, the licensee shall, at its own expense, protect, support, temporarily disconnect, relocate or remove any of its property when, in the opinion of the city, (i) the same is required by reason of traffic conditions, public safety, rights- of-way vacation, freeway or rights-of-way construction, alteration to or establishment of any rights-of-way or any facility within the rights-of-way, sidewalk, or other public place, including but not limited to, installation of sewers, drains, waterlines, power lines, traffic signal lines or transportation facilities; or (ii) a city project or activity makes disconnection, removal, or relocation necessary or less expensive for the city.
(7) The licensee shall, on request of any person holding a permit to move a building, temporarily raise or lower its wires to permit the movement of such buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the licensee shall have the authority to require such payment in advance. The licensee shall be given not less than five (5) days advance notice to arrange such temporary wire alterations.
(8) Whenever, in case of fire or other emergency, it becomes necessary in the judgment of the city manager, police chief, fire chief, or their delegates, to remove or damage any of the licensee's facilities, no charge shall be made by the licensee against the city for restoration, repair or damages.
(9) The licensee shall have the authority to trim trees on public rights-of-way at its own expense as may be necessary to protect its wires and facilities, subject to supervision and direction by the city. Trimming of trees on private property shall require consent of the property owner. Any trimming of trees by the licensee in the rights-of-way and public ways shall be subject to such regulation as the city manager or other authorized official may establish to protect the public health, safety and convenience.
(10) Protection of facilities. Nothing contained in this section shall relieve any person from liability arising out of the failure to exercise reasonable care to avoid damaging the licensee's facilities while performing any work connected with grading, regrading or changing the line of any rights-of- way or public place or the construction or reconstruction of any sewer or water system.
(11) Installation records. Each licensee shall keep accurate installation records of the location of all facilities in the rights-of-way and public ways and furnish them to the city upon request. A licensee shall cooperate with the city to furnish such information in an electronic mapping format compatible with the then-current city electronic mapping format. Upon completion of new or relocation construction of underground facilities in the rights-of-way and public ways, the licensee shall provide the city with installation records in an electronic format compatible with the then-current city electronic mapping format showing the location of the underground and above ground facilities.
(12) If, during the design process for public improvements the city discovers a potential conflict with proposed construction, the licensee shall either: (a) locate and, if necessary, expose its facilities in conflict or (b) use a location service under contract with the city to locate or expose its facilities. Each licensee is obligated to furnish the location information in a timely manner, but in no case longer than thirty (30) days.
(13) The city reserves the prior and superior right to lay, construct, erect, install, use, operate, repair, replace, remove, relocate, regrade, widen, realign, or maintain any rights-of-way and public ways, aerial, surface, or subsurface improvement, including but not limited to water mains, traffic control conduits, cable and devices, sanitary or storm sewers, subways, tunnels, bridges, viaducts, or any other public construction within the rights-of-way of the city limits.
(14) When the city uses its prior superior right to the rights-of-way and public ways, the licensee shall move its property that is located in the rights-of-way and public ways, at its own cost, to such a location as the city directs. Notwithstanding the foregoing, in the event the public project is paid for totally or in part by non-public funds, then the licensee's costs of moving its property shall be borne by the source of the non-public funds in the same ratio as the non-public funds bear to the total project costs.
(15) If, during the course of a project, the city determines licensee's facilities are in conflict, the following shall apply:
(a) Prior to city Notice to Proceed to Contractor: The licensee shall, within a reasonable time, but in no event exceeding three (3) months, remove or relocate the conflicting facility. This time period shall begin running upon receipt by the licensee of written notice from the city. However, if both the city and the licensee agree, the time frame may be extended based on the requirements of the project.
(b) Subsequent to city Notice to Proceed to Contractor: The city and the licensee will immediately begin the coordination necessary to remove or relocate the facility. Removal or relocation is to begin no later than seventy-two (72) hours, if practicable, after written notification from the city of the conflict.
(16) The licensee agrees to obtain a permit as required by the city prior to removing, abandoning, relocating or reconstructing, if necessary, any portion of its facilities. Notwithstanding the foregoing, the city understands and acknowledges there may be instances when the licensee is required to make repairs, in compliance with federal or state laws, that are of an emergency nature. The licensee will notify the city prior to such repairs, if practicable, and will obtain the necessary permits in a reasonable time after notification to the city.
(17) If, in the installation, use or maintenance of its facilities, the licensee damages or disturbs the surface or subsurface of any rights-of-way or public ways or adjoining public property or the public improvement located thereon, therein, or thereunder, the licensee shall promptly, at its own expense, and in a manner acceptable to the city, restore, repair or replace the property thereon, therein, or thereunder, in as good a condition as before such damage or disturbance. If such restoration, repair or replacement is not completed within a reasonable time, or such repair or replacement does not meet the city's reasonable standards, the city shall have the right to perform the necessary restoration, repair, or replacement, either through its own forces or through a hired contractor, and the licensee agrees to reimburse the city for its expenses in so doing within thirty (30) days after its receipt of the city's invoice therefor.
(18) If licensee's relocation effort so delays construction of a public project causing the city to be liable for delay damages, the licensee shall reimburse the city for those damages attributable to the delay created by the licensee. In the event the licensee should dispute the amount of damages attributable to the licensee, the matter shall be referred to the city engineer for a decision. In the event that licensee disagrees with the city engineer's decision, the matter shall be submitted to the city manager or the city manager's designee for determination, whose decision shall be final and binding upon licensee as a matter of city review, but nothing herein waives any right of appeal to the courts.
(19) In the event the city becomes aware of a potential delay involving the licensee's facilities, the city shall promptly notify the licensee of this potential delay.
(20) The installation, use and maintenance of the licensee's facilities within the rights- of-way and public ways authorized herein shall be in such a manner as not to interfere with the city's placement, construction, use and maintenance of its rights-of-way and public ways, rights- of-way lighting, water pipes, drains, sewers, traffic signal systems or other city systems that have been, or may be, installed, maintained, used or authorized by the city.
(21) The licensee agrees not to install, maintain or use any of its facilities in such a manner as to damage or interfere with any existing facilities of another utility located within the rights-of-way and public ways of the city and agrees to relocate its facilities, if necessary, to accommodate another facility relocation. Nothing in this section 7A-13(21) is meant to limit any rights a licensee may have under applicable law to be compensated for the cost of relocating its facilities from the utility that is requesting the relocation.
(22) Reimbursement paid through the permitting process is separate, and in addition to, any other fees included in the license. The licensee, at the time of or prior to submitting construction plans, shall provide the city with a description of the type of service to be provided by the licensee in sufficient detail for the city to determine compliance with the license and applicable law.
(23) The city may issue reasonable policy guidelines to all licensees to establish procedures for determining how to control issuance of engineering permits to multiple licensees for the use of the same rights-of-way for their facilities. The licensee shall cooperate with the city in establishing such policy and comply with the procedures established by the city manager or his designee to coordinate the issuance of multiple engineering permits in the same right-of-way segments.
(24) To maximize public and employee safety, to minimize visual clutter of aerial plant, and to minimize the amount of trenching and excavation in and along city rights-of-way and sidewalks for underground plant, licensee shall make every commercially reasonable effort to co-locate compatible facilities within the rights-of-way subject to the engineering requirements of the owners of utility poles and other facilities.
(Ord. No. 8937, § 2, 9-2-97)
Each licensee assumes all responsibility for gaining permission from any electric, gas or telephone utility in the city for the use, rental or lease of poles, underground conduits and other structures and facilities for the purpose of extending, carrying or laying the licensee's wires, cables, electronic conductors and other facilities and appurtenances necessary or desirable in conjunction with the establishment and operation of the system. Copies of all agreements for use of poles, conduits, or other utility facilities must be provided to the city manager within thirty (30) days of a request therefor by the city.
(Ord. No. 8937, § 2, 9-2-97)
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