§ 4. Use of Right-of-Way.  

Latest version.
  • In the use of right-of-way under this franchise, the Grantee shall be subject to all rules, regulations, policies, resolutions and ordinances of general applicability now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power. In addition, the Grantee shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City relating to permits and fees, sidewalk and pavement cuts, utility location, construction coordination, beautification, and other requirements on the use of the right-of-way and shall comply with the following:


    The Grantee's use of right-of-way shall in all matters be subordinate to the City's use of the right-of-way for any public purpose. The Grantee shall coordinate the placement of its facilities in a manner which minimizes adverse impact on public improvements, as reasonably determined by the City. Where placement is not otherwise regulated, the facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvement.


    All earth, materials, sidewalks, paving, crossings, utilities, public improvements, or improvements of any kind injured or removed by the Grantee in its activities under this franchise shall be fully repaired or replaced promptly by the Grantee at its sole expense and to the reasonable satisfaction of the City or owner thereof.


    All facilities constructed, replaced, or relocated in the right-of-way after the date hereof shall be placed underground unless otherwise agreed to by the City. In those areas and portions of the City where the Grantee is using facilities of other utilities which are not placed underground, Grantee may continue to use such aboveground facilities until such time as the other utility places them underground. Where there are obstructions in the right-of-way such as trees, shrubs, other utilities, commercial signs, man-made structures, or other like obstructions which make the cost of such underground burial unreasonable, the Grantee may request waiver of this requirement, in which event the City will not unreasonably withhold consent. Any amplifiers, vaults, boxes, pedestals, and similar facilities placed above ground in street right-of-way shall be located behind the sidewalk where feasible. Underground facilities shall be placed in appropriate size and type of rigid conduit under paving and under proposed paving as set forth in the Year 2000 Transportation Plan as on file with the Metropolitan Area Planning Commission except where otherwise agreed by the City and the Grantee. For purposes of this subsection, "underground" shall include a partial underground system, e.g., streamlining, so long as it meets the other requirements of this ordinance.


    The Grantee shall keep and maintain accurate records and as-built drawings depicting accurate horizontal and vertical location of all facilities constructed, reconstructed, or relocated in the street right-of-way of arterial streets after the date hereof. Such facilities shall be horizontally and vertically located at least every 100 feet and at any other alignment change. All points of facilities shall be horizontally located from street centerline, or section or quartersection lines or corners. Vertical locations or all points of facilities shall consist of elevations in either City datum or United States Geological Survey datum.


    The Grantee shall notify the City not less than three (3) working days in advance (such notice to be adequate for timely notice on the governing body agenda under City procedures) of any construction, reconstruction, repair, or relocation of facilities which would require any street closure which reduces traffic flow to less than two lanes of moving traffic. Except in the event of an emergency, as reasonably determined by the Grantee, no such closure shall take place without prior authorization from the City. In addition, all work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. Such signing shall be in conformance with the latest edition of the Federal Highway Administration's Standards and Guideline for Work Zone Traffic Control, unless otherwise agreed to by the City.


    The Grantee shall cooperate promptly and fully with the City and take all reasonable measures necessary to provide accurate and complete information upon request from the City regarding the nature and horizontal and vertical location of its facilities located within right-of-way when requested by the City or its authorized agents for a public project. Such location and identification shall be at the sole expense of the Grantee without expense to the City, its employees, agents, or authorized contractors. The Grantee shall designate and maintain a local agent, familiar with the facilities, who is responsible for satisfying information needs of the City and other users of the right-of-way.


    The Grantee shall promptly remove, relocate, or adjust any facilities located in right-of-way if reasonably necessary and directed by the City for a public project including those required by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade installation of sewers, drains, water pipes, power lines, signal lines and tracts of any other type of structures or improvements by public agencies. Such removal, relocation, or adjustment for a particular public project shall be performed by the Grantee once at its sole expense without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to rules and regulations of the City pertaining to such. If additional removal, relocation, or adjustment is the result of the inaccurate or mistaken information of the Grantee, the Grantee shall be responsible for such at its sole expense.


    Upon failure of the Grantee to commence, pursue, or complete any work required by law or by the provisions of any City ordinance or by its franchise to be done in any street right-of-way or other public place, within the time prescribed, and to the satisfaction of the City Engineer, the City Engineer, at his or her option, may cause such work to be done and the Grantee shall pay to the City the cost thereof in the amounts reported by the City Engineer, plus ten percent to the City within thirty days after receipt of such itemized report.


    It shall be the responsibility of the Grantee to take adequate measures to protect and defend its facilities in the right-of-way from harm or damage. If the Grantee fails to accurately or timely locate facilities when requested, it has no claim for costs or damages against the City and its authorized contractors unless such party is solely responsible for the harm or damage by its negligence or intentional conduct. Grantee shall be responsible to the City and its agents, representatives, and authorized contractors for all damages including, but not limited to, delay damages, repair costs, down time, construction delays, penalties or other expenses of any kind arising out of the failure of the Grantee to perform any of its obligations under this agreement unless the damaged party is solely responsible for the harm or damage by its negligence or intentionally caused harm. However, the City and its authorized contractors shall be responsible to take reasonable precautionary measures including calling for utility locations and observing marker posts when working near Grantee facilities.


    The Grantee, on the request of any applicant, shall remove or raise or lower its wires temporarily to permit the moving of houses or other structures. The expense of such temporary removal, raising or lowering of wires shall be paid by the party or parties requesting the same, and the Grantee may require such payment in advance. The Grantee shall be given not less than fifteen (15) days' written notice from the applicant detailing the time and location of the moving operations, and not less than twenty-four (24) hours, advance notice from the applicant advising of the actual operation.


    Permission is hereby granted to the Grantee to trim trees upon and overhanging streets, alleys, sidewalks and public places of said City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Grantee, all of said trimming to be done under the supervision and direction of any City officials to whom said duties have been or may be designated.


    All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the facilities in the right-of-way shall be in accordance with applicable present and future federal, state, and City law and regulation, including but not limited to the most recent editions of the National Electrical Code, the National Electrical Safety Code, and the Fiber Optic Cable Installation Standard of the Telecommunications Industry Committee, or such substantive equivalents as may hereafter be adopted or promulgated. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this ordinance may be additional to or stricter than such minimum standards. It is further understood that notwithstanding such standards the Grantee shall have the right to wire and install its own power supplies.