5-10 General street use and construction | Frederick Municipal Code

Sec. 5-10. General street use and construction.

(1) The cable system constructed or erected by the Grantee shall be of good quality and workmanship and shall be maintained in good repair and efficiency, and shall meet or exceed all FCC technical standards. The Grantee shall, at its own expense, repair, renew, change and improve its cable system from time to time as may be necessary to accomplish the purposes of this franchise.

(2) Subject to applicable laws, regulations and ordinances of the Grantor and the provisions of this franchise, the 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 the Grantee’s cable system shall, regardless of who performs the construction, be and remain the Grantee’s responsibility. The Grantee shall strictly adhere to all building and zoning codes currently or hereinafter in effect, including without limitation the Uniform Building Code and the Uniform Fire Code, and all permit procedures. The 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, and give appropriate notices to the notification association established in Section 9-1.5-105, C.R.S.

(3) The Grantee shall arrange its lines, cables and other appurtenances, on both public and private property, in such a manner as to cause no unreasonable interference with the use of said public or private property by any person. In the event of such interference, the Grantor may require the removal or relocation of the Grantee’s lines, cable and other appurtenances from the property in question in accordance with the provisions of Subsection 5-10(d) of this Article.

(4) When the Grantee’s construction of facilities in the streets is completed, the Grantee shall provide the Grantor with a strand and trench map showing the location of the installed facility in the streets, excluding proprietary electronics. Pursuant to Section 9-1.5-103(4), C.R.S., the Grantee shall locate, mark and map any of its installed cable or cable system for the Grantor at no expense to the Grantor. The Grantee shall install underground warning tape with a metallic tracer at least twelve (12) inches above all feeder and trunk lines and above all fiber optic cable. All as-builts shall be available at the Grantee’s offices for inspection upon reasonable notice.

(5) Before beginning any excavation or other construction activity on a public right-of-way or easement which crosses or abuts any private property, the Grantee shall clearly mark and delineate with flags, stakes or nonpolluting water-soluble spray paint the boundaries of that public right-of-way or easement where it abuts or crosses the private property.

(6) In the event that emergency repairs are necessary, the Grantee shall immediately notify the Grantor of the need for such repairs. The Grantee may initiate such emergency repairs, and shall apply for appropriate permits within forty-eight (48) hours after discovery of the emergency. The Grantee shall comply with all generally applicable Grantor regulations relating to such excavations or construction, including the payment of permit or license fees.

(7) All construction practices shall be in accordance with all applicable sections of federal and state Occupational Safety and Health Acts and any amendments thereto as well as all state and local codes and standards, where applicable.

(8) All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical Code, as amended, and all applicable state and local codes.

(9) Antenna-supporting structures (towers) shall be designed for the proper loading as specified in the Electronics Industries Association’s R.S. 222-A specifications, as they may be amended from time to time. Antenna-supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state and local codes or regulations.

(10) Neither the Grantee’s plant and equipment, nor any work the Grantee performs, shall endanger or interfere in any manner with the rights of any property owner, or hinder or obstruct pedestrian or vehicular traffic.

(b) Geographical Coverage. Subject to the line extension policy set forth in Subsection 5-12(e), and subject to the provisions of Subsection 5-12(b) of this Article, the Grantee’s cable system shall be continuously operated in such a manner that all subscribers within the franchise area have access to the same cable services. This provision does not imply that the Grantee will provide universal service; only that it shall have the capability of providing universal service to the franchise area.

(c) Location of Facilities. Within forty-eight (48) hours after the Grantor or any franchisee, licensee or permittee of the Grantor notifies the Grantee of a proposed street excavation, the Grantee shall, at the Grantee’s expense:

(1) Mark on the surface all of its locatable underground facilities within the area of the proposed excavation;

(2) Notify the excavator of any unlocatable underground facilities in the area of the proposed excavation; or

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

(1) The Grantor shall have the right to require the Grantee to protect, support, temporarily disconnect, remove or change the location of any of the Grantee’s cable system within the streets when any of the following requires such change, and the expense thereof shall be paid by the Grantee: traffic conditions; public safety; street vacation, construction or change or establishment of street grade, separation or realignment; the installation, construction or repair of sewers, drains, gas or water pipes or any other type of structures or improvements by the Grantor; or the nonrenewal of this franchise. Such removal, replacement or relocation shall be in a manner as the Grantor may reasonably direct, and the Grantor shall in no event be liable for any damage to any portion of the Grantee’s cable system.

(2) Should the Grantee discontinue using any facility within the streets, the Grantee may remove the facility or request that the Grantor permit it to remain in place. Notwithstanding the Grantee’s request that any such facility remain in place, the Grantor may require the 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.

(3) The Grantor may require the Grantee to perform a reasonable combination of modification, removal and/or abandonment of the facility, as determined by the Grantor, which the Grantee shall complete in accordance with a reasonable schedule set by the Grantor. Until such time as the Grantee abandons the facility pursuant to the Grantor’s direction, or removes or modifies the facility as reasonably directed by the Grantor, 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 retain all liability for such facility and 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. If the Grantee abandons its facilities, the Grantor may choose to use such facilities for governmental or educational purposes.

(4) Should the Grantee fail to remove or relocate any such facilities by the date established by the Grantor, the Grantor may effect such removal or relocation, and the expense thereof shall be paid by the Grantee, including all costs and expenses incurred by the Grantor due to the Grantee’s delay. If the Grantor requires the Grantee to relocate its facilities located within the streets, the Grantor shall make a reasonable effort to provide the Grantee with an alternate location within the streets. If funds are generally made available to users of the public rights-of-way for such relocation, the Grantee shall be entitled to its pro rata share of such funds.

(1) Whenever the 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 the Grantee in a hard surface pavement in any street, the Grantee shall promptly refill the opening and restore the surface to a condition reasonably satisfactory to the Grantor.

(2) If the Grantee excavates the surface of any street, the Grantee shall be responsible for restoration in accordance with applicable regulations of the street and its surface within the area affected by the excavation. If the Grantee fails to refill or repave any opening it makes in the street within the time required by the Grantor, then the Grantor may, after providing notice to the Grantee, refill and/or repave any opening made by the Grantee in the street, and the expense thereof shall be paid by the Grantee. The Grantor may, after providing notice to the Grantee, remove and/or repair any work done by the Grantee which, in the reasonable determination of the Grantor, is inadequate. The actual cost thereof shall be paid by the Grantee.

(1) The Grantee shall employ professional care and install and maintain methods and devices for preventing failures and accidents that are likely to cause damage, injuries or nuisances to the public.

(2) The Grantee shall keep and maintain all transmission lines, equipment and structures in a safe, adequate and substantial condition, and in good order and repair. The 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 Grantor, or with any other pipes, wires, conduits, pedestals, structures or other facilities that may have been laid in the streets by, or under, Grantor authority.

(3) The Grantee shall provide and use any equipment and appliances reasonably necessary to control and carry the Grantee’s signals so as to prevent injury to the Grantor’s property or property belonging to any person. The Grantee, at its own expense, shall repair, renew, change and improve its cable system and related facilities in good repair, and safe and presentable condition.

(g) Reservation of Grantor Streets Rights. Nothing in this franchise shall prevent the Grantor or public utilities owned, maintained and/or operated by public entities other than the Grantor from constructing sewers; grading, paving, repairing and/or altering any street; laying down, 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 the Grantee’s cable system.

(h) Use of Conduits by Grantor. Subject to any applicable state or federal regulations or tariffs, the Grantor may install or affix and maintain wires and equipment owned by the Grantor for municipal purposes upon any and all of the Grantee’s ducts, conduits or equipment in the streets and other public places, without charge to the Grantor. Provided, however, that:

(1) Such use by the Grantor does not unreasonably interfere with the current or future use by the Grantee;

(2) Such use by the Grantor is restricted to noncommercial municipal purposes;

(3) The Grantor takes reasonable precautions to prevent any use of the Grantee’s cable system in any manner that results in an inappropriate use thereof, or any loss or damage to the cable system; and

(4) At the Grantee’s sole discretion, the Grantor may be required to pay a reasonable rental fee or otherwise reasonably compensate the Grantee for the use of such poles, conduits or equipment, provided, however, that the Grantee agrees that such compensation or charge shall not exceed that paid by it to public utilities pursuant to the applicable pole attachment agreement or other authorization relating to the franchise area. For the purposes of this Subsection, municipal purposes includes, but is not limited to, the use of the structures and installations for Grantor fire, police, traffic, water, telephone and/or signal systems, but not for cable system purposes in competition with the Grantee. The Grantee shall not deduct the value of such use of its facilities from its franchise fee and/or other fees payable to the Grantor.

(i) Street Vacation. If any street or portion thereof used by the Grantee is vacated by the Grantor during the term of this franchise, unless the Grantor specifically reserves to the Grantee the right to continue its installation in the vacated street, the Grantee shall, without delay or expense to the Grantor, 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 existed prior to the Grantee’s disruption of the street, as may be reasonably required by the Grantor. In the event of failure, neglect or refusal of the Grantee, after thirty (30) days’ notice by the Grantor, to restore, repair or reconstruct such street, the Grantor may do such work or cause it to be done, and the reasonable cost thereof, as found and declared by the Grantor, shall be paid by the Grantee within thirty (30) days of receipt of invoice and documentation, and failure to make such payment shall be considered a material breach of this franchise.

(1) The Grantee shall comply with all applicable state and federal laws, statutes, regulations and orders concerning hazardous substances relating to the Grantee’s cable system in the streets.

(2) The Grantee shall maintain and inspect its cable system located in the streets. Upon reasonable notice to the Grantee, the Grantor 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 as provided in this franchise, the Grantee shall also remove all residue of hazardous substances related thereto.

(3) The Grantee agrees to indemnify the Grantor against any claims, costs and expenses, of any kind, whether direct or indirect, incurred by the Grantor arising out of a release of hazardous substances caused by the Grantee’s cable system in the streets. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutants or contaminants generated or deposited by the Town, its employees or representatives.

(k) Undergrounding of Cable. Existing facilities of the Grantee’s and existing portions of the Grantee’s cable system shall be placed underground at the Grantee’s expense when utilities in the same streets place their facilities underground or when required by general ordinances of the Grantor or applicable state or federal law. Nothing contained in this Section shall require the Grantee to construct, operate and maintain underground any ground-mounted appurtenances.

(l) Installation of New Cable System Underground. All new or upgraded cable system facilities shall be installed underground where existing utility facilities are underground, unless otherwise provided by the Grantor in writing, but may be installed on existing utility poles where aerial facilities currently exist. In areas where no poles exist, the Grantee shall place its facilities underground, and the Grantee shall move existing facilities underground whenever all other utilities go underground. In any case where the Grantee has obtained the required written permission from the Grantor not to underground its cable system, the Grantee shall utilize existing poles whenever possible and economically feasible, and may not construct or install any new, different or additional poles, or other facilities on public property until the written approval for the same is granted by the Grantor. Nothing contained in this Section shall require the Grantee to construct, operate and maintain underground any ground-mounted appurtenances.

(m) Undergrounding of Multiple-Dwelling Units. In cases of single site multiple-dwelling units, the Grantee shall minimize the number of individual aerial drop cables by installing multiple drop cables underground between the pole and dwelling unit where determined to be technologically feasible in agreement with the owners and/or owners’ association of the multiple-dwelling units.

(1) Whenever feasible, the Grantee shall use existing poles when the installation of facilities above ground is permitted. In the event the Grantee cannot obtain the necessary poles and related facilities pursuant to a pole attachment agreement, or in the event it is not otherwise feasible for the Grantee to use existing poles, then it shall be lawful for the Grantee to make all needed excavations in the streets for the purpose of placing, erecting, laying, maintaining, repairing and removing poles, supports for wires and conductors, and any other facility needed for the maintenance or extension of the Grantee’s cable system.

(2) The Grantee shall place any poles or other fixtures in any public right-of-way in such manner as not to interfere with the usual travel of the right-of-way or cause unsafe conditions of any sort. Unless otherwise provided by the Grantor in writing, all poles of the Grantee shall be erected between the curb and the sidewalk, and each pole shall be set whenever practicable at an extension lot line. The Grantor shall have the right to require the Grantee to change location of any pole, structure or other facility within the streets when in the opinion of the Grantor the public convenience requires such change, and the expense thereof shall be paid by the Grantee.

(3) Nothing herein shall exempt the Grantee from compliance with all generally applicable ordinance provisions relating to such excavations or construction or from any provision requiring payment of permit or license fees pertaining thereto.

(o) Tree Trimming. Subject to acquiring prior written permission of the Grantor, the Grantee shall have the authority to trim trees that overhang a street so as to prevent the branches of such trees from coming into contact with the cable system, in accordance with generally applicable codes and regulations and current accepted professional tree trimming practices.

(p) Prewiring. Any law of the Grantor which requires prewiring of subdivisions or other developments for electrical and telephone service shall be construed to include wiring for cable systems.

(q) Completion of Work by Grantor. On failure of the Grantee to commence, pursue or complete any work required by law or by the provisions of this franchise or any applicable permit to be done in any public right-of-way or public utility easement, within the time prescribed and to the satisfaction of the Grantor, the Grantor may, after thirty (30) days’ notice to The Grantee, cause the work to be done. The Grantee shall pay to the Grantor the reasonable costs of the work in the itemized amount reported by the Grantor to the Grantee within thirty (30) days after receipt of the itemized report.

(1) On written notice from the Grantor that any work is being done contrary to the provisions of this franchise, or in an unsafe or dangerous manner as determined by the Grantor, or in violation of the terms of any permit or generally applicable laws, regulations, charter provisions, ordinances or standards, the work may be immediately stopped by the Grantor.

(2) The stop work order shall indicate the nature of the alleged violation or unsafe condition and may establish reasonable conditions under which work may be resumed; and the stop work order shall be:

a. In writing;

b. Given to the individual doing the work, or posted on the work site; and

c. Sent to the Grantee by overnight delivery at the address given herein.

(s) Grantee’s Contractors. The Grantee’s contractors shall be licensed and bonded in accordance with the Grantor’s ordinances, regulations or requirements of any contractors working in the public rights-of-way. Any act or omission of any contractor of the Grantee which violates any provision of this franchise shall be considered an act or omission of the Grantee that violates this franchise.

(t) Private Property. Except in the case of an emergency involving public safety or service interruption to a large number of subscribers, the Grantee shall give reasonable notice to the property owners or legal tenants prior to entering upon any private premises, and said notice shall specify the work to be performed; provided that in the case of construction operations, such notice shall be delivered or provided at least twenty-four (24) hours prior to entry. If any damage is caused by any Grantee activity or omission, the Grantee shall reimburse the property owner one hundred percent (100%) of the cost of the damage or shall replace the damaged property. In the case of an emergency, the Grantee shall attempt to contact the property owner or legal tenant in person, and shall leave a door hanger notice in the event personal contact is not made. Nothing herein shall be construed as authorizing access or entry to private property or any other property where such right to access or entry is not otherwise provided by law.

(1) Depths. Unless otherwise required by law, the Grantee shall comply with the following burial depth standards for facilities in the Grantor’s streets:

a. Underground cable drops from the curb shall be buried at a minimum depth of twelve (12) inches, unless a sprinkler system or other construction concerns preclude it, in which case underground cable drops shall be buried at a depth of six (6) inches.

b. Feeder lines shall be buried at a minimum depth of eighteen (18) inches.

c. Trunk lines shall be buried at a minimum depth of thirty-six (36) inches.

d. Fiber optic cable shall be buried at a minimum depth of thirty-six (36) inches.

e. In no event, however, will the Grantee be required to bury its cable deeper than electric or gas facilities in the same portion of the right-of-way.

(2) Timeliness. Temporary cable drops installed by the Grantee to residences shall be buried according to these standards within two (2) calendar weeks of initial installation, or such other time frame as agreed upon by the subscriber. When freezing surface conditions or other weather conditions prevent the Grantee from achieving such timetable, the Grantee shall apprise the subscriber of the circumstances and the estimated time of burial in writing, and shall provide the subscriber, in writing, with the Grantee’s telephone number and instructions as to how and when to call the Grantee to request burial of the line if the revised schedule is not met. (Ord. 731 § 1, 2004; Ord. 1002 § 13, 2009; Ord. 1003 § 1, 2009)