(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)