A. Location: All facilities located within the public right of way or utility easements shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a franchise agreement:
1. Grantee shall install all new telecommunications facilities (excluding upgrades and reinforcements) underground unless the city specifically permits attachments to utility poles or other aboveground facilities, provided, however, no entity with existing attachments to utility poles shall be required to install new or existing facilities underground except as provided in the following subsections. The city and grantee shall work cooperatively to identify known upcoming projects that may require relocation and explore options to minimize expense and disruption to existing facilities, residents and the city.
2. Grantee shall install its telecommunications facilities within an existing underground duct or conduit owned by it whenever surplus capacity exists within such utility facility unless grantee demonstrates to satisfaction of the city that such installation is not feasible.
3. A grantee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if usable space is available as determined by the department of electric utilities or the owner of the poles.
4. Whenever any existing electric utilities are located underground within a public right of way of the city, a grantee with permission to occupy the same public right of way must also locate new telecommunications facilities underground if existing conduit is available for its use. Whenever any overhead electric utilities are voluntarily relocated underground, any grantee with permission to occupy the same public right of way must also relocate underground if conduit space is available for its use. The grantee may recover forced undergrounding costs from its customers or other third parties causing the relocation, to the extent allowed by law.
5. Whenever any existing aboveground electric utilities, cable facilities or telecommunications facilities are relocated underground within a public right of way of the city, a grantee that currently occupies the same aboveground public right of way shall relocate its facilities underground at the grantee's sole expense concurrently with the other affected utilities to minimize disruption of the public right of way, absent extraordinary circumstances or undue hardship, as determined by the city and consistent with state law. The grantee may recover forced undergrounding costs from its customers or other third parties causing the relocation, to the extent allowed by law.
6. The city engineer or the city public works superintendent may grant exceptions to some or all of the requirements of this subsection if the engineer or the public works superintendent determines, in his or her sole discretion, that a waiver is necessary to fulfill the purpose and intent of this chapter.
B. Interference With The Public Rights Of Way: No grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public rights of way by the city, by the general public or by other persons authorized to use or be present in or upon the public rights of way. All such facilities shall be moved by the grantee, temporarily or permanently, as reasonably determined by the city to protect the public health, safety and welfare, at the sole expense of the grantee. All use of public rights of way shall be consistent with city codes, ordinances and regulations.
C. Relocation Or Removal Of Facilities: Within sixty (60) days following written notice from the city (or such other time as reasonably agreed to by the parties), a grantee shall, at no expense to the city, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public rights of way whenever the city shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
1. The construction, repairs, maintenance or installation of any city or other public improvement in or upon the public rights of way.
2. Any relocation that is caused by and benefits a third party, even if the request comes from the city, shall be required to pay for grantee's relocation costs prior to such relocation.
3. To the extent the city requires relocation of grantee's facilities from the public right of way or city property, the city will attempt to provide alternate public right of way or city property for such relocated facilities.
D. Removal Of Unauthorized Facilities: Within sixty (60) days following written notice from the city, or such longer period agreed to by the city, any grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public rights of way of the city shall, at its own expense, remove such facilities or appurtenances from the public rights of way of the city. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:
1. One year after the expiration or termination of the grantee's telecommunications franchise unless the grantee has timely filed for, and is actively and expeditiously pursuing, a franchise renewal.
2. Upon abandonment of a facility within the public rights of way of the city. A facility will be considered abandoned when it is deactivated, out of service, or not used for its intended and authorized purpose for a period of ninety (90) days or longer. A facility will not be considered abandoned if it is temporarily out of service during performance of repairs, if the facility is excess capacity of a current grantee who is not in default, if the facility is being replaced or if the facility has been disconnected because the building or property being served is vacant.
3. If the system or facility was constructed or installed without the prior grant of a telecommunications franchise and the owner has not commenced actions to cure after written notice.
4. If the system or facility was constructed or installed without the prior issuance of a required construction permit and the owner has not commenced actions to cure after written notice.
5. If the system or facility was constructed or installed at a location not permitted by the grantee's telecommunications franchise and the owner has not commenced actions to cure after written notice. (Ord. 772, 4-19-2012)