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(a) Continuing regulatory jurisdiction. The mayor and council shall have continuing regulatory jurisdiction and supervision over the operation of any license or franchise 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 or franchise agreement shall be delegated and entrusted to the city Manager as hereafter provided.
(b) The city manager or the city manager's designee, as appropriate, shall have the following responsibilities and authority:
(1) To interpret, administer and enforce the provisions of this chapter and the license or franchise agreement;
(2) To represent the city in all matters pertaining to the implementation of the provisions of this chapter and the license or franchise agreement;
(3) To 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;
(4) To assure that all records, rules and charges pertinent to the system are made available for inspection at reasonable hours upon reasonable notice;
(5) To confer with the licensee or franchisee and advise and supervise the interconnection and compatibility of the system with other systems in the city;
(6) To establish and administer sanctions as authorized by the mayor and council to ensure compliance with this chapter;
(7) To advise the mayor and council on matters which may constitute grounds for termination of the license or franchise agreement in accordance with this chapter;
(8) To advise the mayor and council on proposed transfers of the system;
(9) To promulgate regulations regarding the construction, reconstruction, operation, maintenance, dismantling, testing or use of the system as necessary;
(10) To ensure that the licensee or franchisee makes all services available to all residents of the city on a nondiscriminatory basis;
(11) To 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. 8522, § 1, 6-12-95)
The cost of regulating the license or franchisee shall be paid out of revenue derived from license or franchise fees provided for by section 7B-26 of this chapter. Until such time as the license or franchise fees generated are in an amount sufficient to cover the cost of regulation and other city costs associated with the implementation of this chapter, all as determined by the mayor and council, as such costs and expenses as approved and budgeted by the mayor and council shall be an assessment against the licensee or franchisee and shall be paid within fifteen (15) days, written notice to the licensee or franchisee of the amount due. Amounts so assessed and paid shall be a credit against future license or franchise fee payments pro rata.
(Ord. No. 8522, § 1, 6-12-95)
(a) 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 streets and sidewalks for underground plant, telecommunications companies licensed hereunder shall make every commercially reasonable effort to interconnect or to collectively "bundle" compatible facilities within the right-of-way subject to the engineering requirements of the owners of utility poles and other facilities used by the licensee or franchisee.
(b) In the event of a dispute between licensees or franchisees regarding compatibility of facilities or reasonableness of interconnection requirements, 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 the respective licensees or franchisees; however, this section shall not govern disputes between a licensee or franchisee under this chapter and a licensee or franchisee of the city who does not provide competitive telecommunications service.
(Ord. No. 8522, § 1, 6-12-95)
(a) The licensee or franchisee shall first obtain the written approval of the city engineer prior to commencing construction on the streets 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 or franchisee shall notify the city at least ten (10) days prior to the commencement of any construction in any streets.
(b) The licensee or franchisee shall not open or disturb the surface of any street 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. Licenses or franchises hereunder shall join and participate in the local blue stake center.
(c) Use of existing poles or conduits.
(1) The licensee or franchisee shall utilize existing poles, conduits and other facilities whenever possible and shall not construct or install any new, different or additional above- ground poles, conduits or other facilities whether on public property or on privately owned property, unless the erection of new poles is authorized by the city manager or the city manager's designee. Nothing in this section shall prohibit the replacement of existing poles or the addition of poles on existing above-ground routes where engineering concerns mandate the addition of new poles to accommodate the licensee's/franchisee's facilities.
(2) The facilities of the licensee or franchisee 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 or franchisee. In areas where either telephone or electric utility facilities are installed aerially at the time of system construction, the licensee or franchisee may install its facilities aerially; however, at such time as the existing aerial facilities are placed underground, the licensee or franchisee shall likewise place its facilities underground at sole cost to the licensee or franchisee.
(d) All transmission and distribution structures, lines and equipment erected by the licensee or franchisee shall be located so as to cause minimum interference with the unencumbered use of streets and other public places and minimum interference with the rights and reasonable convenience of property owners who adjoin any of the streets and public places.
(e) The licensee or franchisee shall at its own expense repair, to the satisfaction of the city, all city-owned water lines, storm and sanitary sewer lines, service lines, water meters, streets, sidewalks, curbs, gutters, or other property of the city damaged by any of the operations of the licensee or franchisee, its contractors, subcontractors, employees, agents or assigns engaged in pursuant to its license or franchise. In case of disturbance or damage caused by the licensee or franchisee to any street or public place, the licensee or franchisee shall, at its own cost and expense and in the manner approved by the city, replace and restore such street or public place in as good a condition as before the work performed by the licensee or franchisee which caused such disturbance or damage.
(f) At any time during the period of the license or franchise, the licensee or franchisee shall, at its own expense, 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, alteration to or establishment of any street, sidewalk or other public place, installation of sewers, drains, waterlines, power lines, traffic signal lines or transportation facilities.
(g) The licensee or franchisee shall, on request of any person holding a permit to move a building, temporarily remove, 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 or franchisee shall have the authority to require such payment in advance. The licensee or franchisee shall be given not less than five (5) days' advance notice to arrange such temporary wire alterations.
(h) 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 or franchisee's facilities, no charge shall be made by the licensee or franchisee against the city for restoration and repair.
(i) The licensee or franchisee 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 supervision and direction by the city. Trimming of trees or private property shall require written consent of the property owner.
(j) 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 or franchisee's facilities while performing any work connected with grading, regrading or changing the line of any street or public place or the construction or reconstruction of any sewer or water system.
(k) Notice of city improvements. The city shall provide the licensee or franchisee with reasonable notice of plans for street or other public improvements where paving or resurfacing of a permanent nature is involved. The notice shall contain the nature and character of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the work schedule for the project. The notice shall give the licensee or franchisee sufficient time to make any additions, alterations, modifications or repairs to its facilities as the licensee or franchisee deems necessary in advance of the commencement of the work, so as to permit the licensee or franchisee to maintain continuity of service.
(l) The licensee or franchisee, in conjunction with the requirements of a city project, shall at its sole expense make such relocations of its facilities within city rights-of-way or take other steps as may be necessary to facilitate any city project. Such relocations shall be under the same terms and conditions as a new installation pursuant to this chapter.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 3, 7-10-95)
The licensee or franchisee assumes all responsibility for gaining permission from any electric, gas or telephone utility or any other authorized entity 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 or franchisee's wires, cables, electronic conductors and other facilities and appurtenances necessary or desirable in conjunction with the establishment and operation of the system. The city agrees that any public utility owning or controlling such poles or underground conduits may, without amendment to any franchise agreement it may have with the city, allow and is encouraged to allow the licensee or franchisee to make such use thereof pursuant to any agreement reached between such utility and the licensee or franchisee.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 4, 7-10-95)
Compliance with construction codes.
(1) Construction practices shall be in accordance with all applicable provisions of the Occupational Safety and Health Act of 1970 and any amendments thereto as well as all applicable laws, rules and regulations of the state and the city, including but not limited to requirements of the city in regard to various electrical wiring necessary to the operation of city functions, including but not limited to traffic-control signalization, street lighting, fire lines and communications lines.
(2) All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the applicable provisions of the current editions of the National Electrical Safety Code as published by the Institute of Electrical and Electronics Engineers, the National Electrical Code of the National Fire Protection Association, and all state and local codes where applicable.
(3) Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the United States Department of Transportation and all other applicable laws, rules and regulations of the state and the city.
(Ord. No. 8522, § 1, 6-12-95)
As a condition of granting a license or franchise to a licensee or franchisee hereunder, the city may require that such licensee or franchisee agree to make available at no cost to the city such dark fibers and spares in any cable or bundle of fibers hung or emplaced by such licensee or franchisee as the city may reasonably need to satisfy municipal telecommunications requirements. The licensee or franchisee shall bring such fibers to a board, block, or pedestal such as to be readily accessible and usable by the city, as determined by the department of information services and at no cost to the city, unless otherwise provided in the terms of a specific license or franchise agreement. In addition, the license or franchise may specify that certain telecommunications services and other facilities be provided to the city at licensee's or franchisee's cost, or at a discount from established prices, or on a most favored nation basis.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 5, 7-10-95)
(a) Renewal. At any time between the last five and twelve months before expiration of its existing license or franchise, the licensee or franchisee, as the case may be, may apply to the city for continuation of its existing authority to occupy the city streets and other municipal rights-of-way. If the applicant shows to the satisfaction of the city that it is in compliance with the terms of its existing instrument, the city may grant a five-year extension of the existing authorization, subject to the right of either party to renegotiate fees, conditions, and terms of access and subject to the approval of the voters of the city in the case of a franchise.
(b) Termination.
(1) The mayor and council may terminate the license or franchise agreement in the event of the violation of any material provision of this chapter or of any rule or regulation promulgated pursuant thereto or of any applicable federal, state or local law, or the material breach, failure, refusal or neglect by the license or franchisee to perform its obligations under the terms and conditions of the license or franchise agreement, except when such violation, breach, failure, refusal or neglect is directly caused by any of the following:
a. Acts of God;
b. Riots;
c. Emergencies declared by the President of the United States of America, the governor of the state or the mayor.
(2) Criteria for termination shall include, but in no event be deemed exclusive or limited to the following:
a. Attempt to dispose of any of the facilities or property of the system to prevent the city from purchasing it, as provided for in this chapter;
b. Attempt to evade any material provision of this chapter or the license or franchise agreement;
c. The practice of any fraud or deceit upon the city or subscribers or users;
d. Failure to begin or complete system construction or system extension pursuant to this chapter and the license or franchise agreement;
e. Failure to provide and maintain the types of services, facilities, equipment or personnel provided for in the license or franchise agreement and this chapter;
f. Material misrepresentation of fact in the license or franchisee's proposal or in the execution of the license or franchise agreement or in any reports required to be filed pursuant to this chapter;
g. Failure to timely make payment of any moneys due the city pursuant to this chapter.
(3) After providing the licensee or franchisee with notice and an opportunity to be heard and in the event that the mayor and council determine that the licensee or franchisee, by its acts or omissions has given the city cause for termination of the license or franchise agreement, the mayor and council may instruct the city manager to make written demand upon the licensee or franchisee for full compliance. If the violation, breach, failure, refusal or neglect is not or cannot be remedied to the satisfaction of the mayor and council within thirty (30) days following such demand, if made, the mayor and council may exercise the following options:
a. Direct the licensee or franchisee to comply within such additional time, in such manner and upon such terms and conditions as the mayor and council may direct.
b. Declare the license or franchise agreement terminated and of no further force and effect.
(4) If the mayor and council declare the license or franchise agreement terminated, the city may pursue any remedies available to the city pursuant to this chapter, including but not limited to the options stated in paragraph (b) of section 7B-18 ("Renewal and Termination"), the license or franchise agreement, or any other remedy available to the city as provided by law.
(c) Dismantle. In the event that the city exercises its option to require the licensee or franchisee to dismantle the system, the licensee or franchisee shall, in an expeditious manner, at its own expense and at the direction of the city, restore any property, public or private, to the condition in which it existed prior to the erection or construction of the system, including any improvements made to such property subsequent to the construction of the system.
(d) Abandonment. In the event the license or franchise granted hereunder shall terminate without renewal or substitution, or the licensee or franchisee shall permanently abandon operations of its telecommunications facilities in the city, the city, at its election, may require the licensee or franchisee to remove some or all of its facilities hereunder or may exercise its right of purchase under section 7B-19 below. The city, however, shall be deemed to have a possessory interest in facilities provided by the licensee or franchisee under section 7B-17 above, which possessory interest shall not be disturbed by licensee or franchisee without the city's consent.
(Ord. No. 8522, § 1, 6-12-95)
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