5.19.230 Street use and construction standards

5.19.230 Street use and construction standards.

1. Subject to applicable laws, regulations and ordinances of the city and the provisions of this franchise agreement, a grantee may perform all construction necessary for the operation of its cable system. All construction and maintenance of any and all facilities within streets incident to grantee’s cable system shall, regardless of who performs the construction, be and remain grantee’s responsibility. Grantee shall apply for, and obtain, all permits necessary for construction or installation of any facilities, and for excavating and laying any facilities within the streets. Grantee shall pay, prior to issuance, all applicable fees of the requisite construction permits.

2. Prior to beginning any construction, grantee shall provide the city with a construction schedule for work in the streets. All construction shall be performed in compliance with this agreement and all applicable state and city statutes and codes. When obtaining a permit, grantee shall inquire in writing about other construction currently in progress, planned or proposed, in order to investigate thoroughly all opportunities for joint trenching or boring. Whenever it is possible and reasonably practicable to joint trench or share bores or cuts, grantee shall work with other providers, grantees, and permittees so as to reduce as far as possible the number of street cuts within the city.

b. Location of Facilities. Within forty-eight (48) hours after notification of any proposed street excavation, grantee shall, at grantee’s expense:

1. Mark on the surface all of its underground facilities within the area of the proposed excavation;

2. Notify the excavator of any unlocated underground facilities in the area of the proposed excavation; or

3. Notify the excavator that grantee does not have any underground facilities in the vicinity of the proposed excavation.

c. Relocation. The city shall have the right to require a grantee to change the location of any part of the grantee’s cable system within the streets when the public convenience requires such change, and the expense thereof shall be paid by grantee. Should grantee fail to remove or relocate any such facilities by the date established by the city, the city may effect such removal or relocation, and the expense thereof shall be paid by grantee, including all costs and expenses incurred by the city due to grantee’s delay. If the city requires grantee to relocate its facilities located within the streets, the city shall make a reasonable effort to provide grantee with an alternate location within the streets.

1. Whenever a grantee disturbs the surface of any street for any purpose, the grantee shall promptly restore the street to at least its prior condition. When any opening is made by a grantee in a hard surface pavement in any street, the grantee shall refill within twenty-four (24) hours the opening and restore the surface to a condition satisfactory to the city.

2. If a grantee excavates the surface of any street, grantee shall be responsible for restoration in accordance with applicable regulations of the city within the area affected by the excavation. The city may, after providing notice to grantee, refill or repave any opening made by grantee in the street, and the expense thereof shall be paid by grantee. The city may, after providing notice to grantee, remove or repair any work done by grantee which, in the determination of the city, is inadequate. The cost thereof, including the costs of inspection and supervision, shall be paid by grantee. All excavations made by grantee in the streets shall be properly safeguarded for the prevention of accidents. All of grantee’s work under a franchise agreement, and this section in particular, shall be done in strict compliance with all rules, regulations and ordinances of the city. Prior to making any street or right-of-way cuts or openings, grantee shall provide written notice to the city.

1. A grantee’s cable system shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or any other property of the city, or with any other pipes, wires, conduits, pedestals, structures, equipment or other facilities that may have been laid in the streets by, or under, the city’s authority.

2. Grantee shall provide and use any equipment necessary to control and carry grantee’s cable television signals so as to prevent injury to the city’s property or property belonging to any person. Grantee, at its own expense, shall repair, change and improve its facilities to keep them in good repair, and safe and presentable condition.

f. Reservation of street rights. Nothing in this ordinance or any franchise agreement shall prevent the city or utilities owned, maintained or operated by public entities other than city, from constructing sewers; grading, paving, repairing or altering any street; repairing or removing water mains; or constructing or establishing any other public work or improvement. All such work shall be done, insofar as practicable, so as not to obstruct, injure or prevent the use and operation of a grantee’s cable system. However, if any of a grantee’s cable system interferes with the construction or repair of any street or public improvement, including construction, repair or removal of a sewer or water main, the grantee’s cable system shall be removed or replaced in the manner city shall direct, and city shall in no event be liable for any damage to any portion of the grantee’s cable system. Any and all such removal or replacement shall be at the expense of the grantee. Should a grantee fail to remove, adjust or relocate its facilities by the date established by the city’s written notice to the grantee, city may effect such removal, adjustment or relocation, and the expense thereof shall be paid by the grantee, including all reasonable costs and expenses incurred by city due to the grantee’s delay.

g. Use of conduits by the city. The city may install or affix and maintain wires and equipment owned by the city for municipal purposes in or upon any and all of a grantee’s ducts, conduits or equipment in the streets and other public places, without charge to the city, to the extent space therein or thereon is reasonably available, and pursuant to all applicable city ordinances and codes. For the purposes of this subsection, "municipal purposes" includes, but is not limited to, the use of the structures and installations by the city for fire, police, traffic, water, telephone, or signal systems, but not for cable system purposes in competition with a grantee. A grantee shall not deduct the value of such use of its facilities from its franchise fees payable to the city.

h. Street vacation. If any street or portion thereof used by a grantee is vacated by the city during the term of a franchise, unless the city specifically reserves to the grantee the right to continue its installation in the vacated street, the grantee shall, without delay or expense to the city, remove its facilities from such street, and restore, repair or reconstruct the street where such removal has occurred, and place the street in such condition as may be required by the city. In the event of failure, neglect or refusal of the grantee, after thirty (30) days’ notice by the city, to restore, repair or reconstruct such street, the city may do such work or cause it to be done, and the reasonable cost thereof, as found and declared by the city, shall be paid by the grantee within thirty (30) days of receipt of an invoice and documentation, and failure to make such payment shall be considered a material breach of the franchise agreement.

i. Discontinuing use of facilities. Whenever a grantee intends to discontinue using any facility within the streets, the grantee shall submit for the city’s approval a complete description of the facility and the date on which grantee intends to discontinue using the facility. A grantee may remove the facility or request that the city allow it to remain in place. Notwithstanding a grantee’s request that any such facility remain in place, the city may require a grantee to remove the facility from the street or modify the facility to protect the public health, welfare, safety, and convenience, or otherwise serve the public interest. The city may require a grantee to perform a combination of modification and removal of the facility. The grantee shall complete such removal or modification in accordance with a schedule set by the city. Until such time as the grantee removes or modifies the facility as directed by the city, or until the rights to and responsibility for the facility are accepted by another person having authority to construct and maintain such facility, the grantee shall be responsible for all necessary repairs and relocations of the facility, as well as maintenance of the street, in the same manner and degree as if the facility were in active use, and the grantee shall retain all liability for such facility. If the grantee abandons its facilities, the city may choose to use such facilities for any purpose whatsoever including, but not limited to, public, governmental, or educational purposes.

1. A grantee shall comply with all applicable local, state and federal laws, statutes, regulations and orders concerning hazardous substances relating to the grantee’s cable system in the streets.

2. A grantee shall maintain and inspect its cable system located in the streets. Upon reasonable notice to the grantee, the city may inspect the grantee’s facilities in the streets to determine if any release of hazardous substances has occurred, or may occur, from or related to the grantee’s cable system. In removing or modifying the grantee’s facilities, the grantee shall also remove all residue of hazardous substances related thereto.

k. Undergrounding of cable. Where electric and telephone utility wiring is installed underground at the time of cable system construction, or when such wiring is subsequently placed underground, all cable system lines or wiring and equipment shall also be placed underground on a nondiscriminatory basis with other wire line service at no additional expense to the grantor or subscribers. Related cable system equipment such as pedestals must be placed in accordance with applicable code requirements and underground utility rules as interpreted by the city manager or his or her designate. In areas where electric or telephone utility wiring is aerial, the grantee may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation.

i. Where electric or telephone utility wiring is installed underground at the time of cable system construction, or when such wiring is subsequently placed underground, all cable system lines or wiring and equipment shall also be placed underground on a nondiscriminatory basis with other wire line service at no additional expense to the city or subscribers. Related cable system equipment such as pedestals must be placed in accordance with city code requirements and underground utility rules as interpreted by the city manager or his or her designate. In areas where both electric and telephone utility wiring is aerial, the grantee may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation.

ii. The grantee shall utilize existing poles and conduit wherever possible.

iii. No franchise agreement shall be deemed to grant, give or convey to the grantee the right or privilege to install its facilities in any manner on specific utility poles or equipment of the city or any other person without their permission. Copies of agreements for use of poles, conduits or other utility facilities must be provided upon request by the city upon demonstrated need and subject to protecting grantee’s proprietary information from disclosure to third parties.

i. The grantee shall protect public and private property from damage. If damage occurs the grantee shall promptly notify the property owner within twenty-four (24) hours in writing.

ii. If public or private property is disturbed or damaged, the grantee shall restore the property to its former condition, normal wear and tear excepted. Public right-of-way or other city property shall be restored, in a manner and within a timeframe approved by the city manager or his or her designate. If restoration of public right-of-way or other city property is not satisfactorily performed within a reasonable time, the city manager or his or her designate may, after prior notice to the grantee, or without notice where the disturbance or damage may create a risk to public health or safety, or cause delay or added expense to a public project or activity, cause the repairs to be made at the grantee’s expense and recover the cost of those repairs from the grantee. Within thirty (30) days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, the grantee shall pay the city. If suit is brought upon a grantee’s failure to pay for repair or restoration, and if judgment in such a suit is entered in favor of the city, then the grantee shall pay all of the city’s actual costs and expenses resulting from the non-payment, including damages, interest from the date the bill was presented, disbursements, attorneys’ fees and litigation-related costs. Private property must be restored promptly, considering the nature of the work that must be performed and in no event later than seventy-two (72) hours.

iii. Prior to entering onto private property to construct, operate or repair its cable system, grantee shall give the person residing on or using the property adequate written notice (such as a door hanger which clearly identifies the anticipated construction) that it intends to work on the property, a description of the work it intends to perform and a name and phone number the person can call to protest or seek modification of the work. Work shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners, residents and users.

3. Movement of cable system for and by city. The city may remove, replace, modify or disconnect a grantee’s facilities and equipment located in the public right-of-way or on any other city property in the case of fire, disaster, or other emergency, or when a city project or activity makes the removal, replacement, modification or disconnection necessary or less expensive for the city. Except during an emergency, the city shall attempt to provide reasonable notice to the grantee prior to taking such action and shall, when feasible, provide grantee with the opportunity to perform such action. Following notice by the city, the grantee shall remove, replace, modify or disconnect any of its facilities or equipment within any public right-of-way, or on any other city property, except that the city shall provide at least sixty (60) days’ written notice of any major capital improvement project which would require the removal, replacement, modification or disconnection of the grantee’s facilities or equipment. If the grantee fails to complete this work within the time prescribed and to the city’s satisfaction, the city may cause such work to be done and bill the cost of the work to the grantee. Within thirty (30) days of receipt of an itemized list of those costs, the grantee shall pay the city.

4. Movement for other franchise holders. If any removal, replacement, modification or disconnection is required to accommodate the construction, operation or repair of the facilities or equipment of another franchise holder, a grantee shall, after at least thirty (30) days’ advance written notice, take action to effect the necessary changes requested by the responsible entity. Those persons shall determine how costs associated with the removal or relocation shall be allocated.

5. Movement for other permittees. At the request of any person holding a valid permit and upon reasonable advance notice, a grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The expense of such temporary changes must be paid by the permit holder, and grantee may require a reasonable deposit of the estimated payment in advance.

6. Tree trimming. Subject to acquiring prior written permission of the city, the grantee shall have the authority to trim trees that overhang a public right-of-way of the city so as to prevent the branches of such trees from coming in contact with its cable system, in accordance with applicable city codes and regulations and current, accepted professional tree trimming practices.

l. Codes. Grantee shall strictly adhere to all building and zoning codes currently or hereafter in effect. Grantee shall arrange its lines, cables and other appurtenances, on both public and private property, in such a manner as to not cause unreasonable interference with the use of said public or private property by any person. In the event of such interference, the city may require the removal or relocation of a grantee’s lines, cables and other appurtenances from the property in question.

m. Standards. All work authorized and required of a grantee pursuant to this ordinance or a franchise granted hereunder shall be done in a safe, thorough and workmanlike manner. The grantee must comply with all safety requirements, rules and practices and employ all necessary devices as required by applicable law during construction, operation and repair of its cable system. By way of illustration and not limitation, the grantee must comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards. Grantee shall ensure that the drops are properly bonded to the electrical power ground at the home, consistent with the requirements of the National Electric Code and the National Electrical Safety Code in effect at the time the drop is installed. All non-conforming or non-performing drops shall be replaced by grantee as necessary in conformity with the codes in effect at the time the drop is replaced. (Ord. M-3371, 1998)