Tracy Municipal Code Art. 5 Construction Requirements

(a) Grantee shall not construct any cable system facilities until grantee has secured the necessary permits, including encroachment permits, from grantor, or other responsible public agencies. The grantee shall be subject to all requirements of grantor's ordinance for "street openings" (chapter 7.04 of the Municipal Code) applicable to contractors working within the public rights-of-way, including payment of permit fees and the cost of grantor inspection services. No provision of this ordinance or the franchise agreement shall be deemed a waiver of the obligation of a grantee to pay grantor for the issuance of a permit.

(b) In those areas of the City where transmission lines or distribution facilities of the public utilities providing telephone and electric power service are underground, the grantee likewise shall construct, operate and maintain its transmission and distribution facilities underground.

(c) In those areas of the City where the grantee's cables are located on the above-ground transmission or distribution facilities of the public and/or municipal utility providing telephone or electric power service, and in the event that the facilities of both the telephone and electric power utilities subsequently are placed underground, then the grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at grantee's cost, provided, that in this event, the grantee may recover from subscribers any of grantee's un-recovered costs in the manner and to the extent permitted by federal and state law. Certain of grantee's equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue to remain in above-ground enclosures, unless otherwise provided in the franchise agreement.

(d) Excavation of any public right-of-way shall normally be limited to once per twelve (12) consecutive month period. Based on a showing of extraordinary circumstances, the grantor may waive this requirement.

(e) Any changes in or extensions of any poles, anchors, wires, cables, conduits, vaults, laterals or other fixtures and equipment (herein referred to as "structures"), or the construction of any additional structures, in, upon, along, across, under or over the streets, alleys and public ways shall be made under the direction of the director of engineering and development or the city engineer or a designee, who shall, if the proposed change, extension or construction conforms to the provisions hereof, issue written permits therefor. The height above public thoroughfares of all aerial wires shall conform to the requirements of the California regulatory body having jurisdiction thereof.

(1) All transmission and distribution structures, lines and equipment erected by the grantee shall be located so as not to interfere with the proper use of the public rights-of-way, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said public rights-of-way, and not to materially interfere with existing public and municipal utility installations.

(2) Upon issuance of a finding by the grantor that any property or improvement of the grantor in the public rights-of-way has been disturbed or damaged by the grantee or any of its contractors, agents or employees in connection with undertaking any and all work pursuant to the rights granted to the grantee pursuant to this ordinance and the franchise agreement, the grantee shall promptly, at the grantee's sole cost and expense, restore to its former condition said property or improvement which was so disturbed or damaged. If such property or improvement shall at any time, until resurfaced by the grantor, become uneven, unsettled or otherwise require additional restorative work, repair or replacement because of the initial disturbance or damage to the property by the grantee, then the grantee, as soon as reasonably possible, shall, promptly upon receipt of written notice from the grantor and at the grantee's sole cost and expense, restore said property or improvement which was disturbed or damaged. Any such restoration by the grantee shall be made in accordance with such materials and specifications as may, from time to time, be established by the grantor.

(3) Prior to commencing any work on the system in the public rights-of-way, the grantee shall obtain any and all permits, licenses and authorizations lawfully required for such work, and pay all applicable fees and costs. In the event the grantee is commencing a franchise area-wide cable system upgrade or rebuild, the grantee may obtain permits in incremental phases. If emergency work on the system in the public right-of-way is required, the grantee shall with all due diligence, seek to obtain any and all such required permits, licenses and authorizations within seven (7) working days after commencing such emergency work. Prior to performing any work in the public right-of-way, grantee shall give appropriate notice to the "Underground Service Alert" ("USA"), or any similar type service provider as designated by the grantor, other agencies and as provided by law.

(4) There shall be no unreasonable or unnecessary obstruction of the public rights-of-way by the grantee in connection with any of the work provided for herein. The grantee shall maintain traffic control, including but not limited to, any barriers, signs and warning signals during any work performed on or about the public rights-of-way or adjacent thereto as may be necessary to reasonably avoid injury or damage to life and property.

(5) If the grantor lawfully elects to alter or change the grade or location of any public right-of-way, the grantee shall upon reasonable notice by the grantor, and in a timely manner, remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense, provided, that if other similarly situated users of the public rights-of-way are compensated or reimbursed by grantor for any of the costs associated with the removal or relocation of any equipment and facilities, the grantee shall be entitled to share in such grantor compensation or reimbursement, to the extent permitted by law.

(6) The grantee shall not place poles, conduits or other fixtures above or below ground where the same will interfere with any gas, electric, or telephone fixtures, water hydrants or other utility or cable system components, and all such poles, conduits or other fixtures placed in any street shall be so placed as to comply with all ordinances of the grantor.

(7) In accordance with applicable law, the grantee or any utility user of the public rights-of-way may be required by the grantor to permit joint use of its poles and/or conduit located in the public rights-of-way, insofar as such joint use may be reasonably practicable and upon payment of a reasonable rental fee for such usage. In the absence of agreement regarding such joint use, each party shall be entitled to exercise any rights and defenses provided by applicable law.

(8) The grantee, on request of any person holding a moving permit issued by the grantor, shall temporarily raise or lower its wires or fixtures to permit the moving of buildings. The expense of such temporary raising or lowering of wires or fixtures shall be paid by the person requesting the same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than ten (10) business days prior written notice to arrange for the temporary wire or equipment changes.

(9) The grantee shall, after coordination with the grantor, have the authority to trim any trees or other natural growth, on public property and overhanging the public rights-of-way so as to prevent the branches of such trees or other natural growth from coming in contact with the grantee's wires, cables and other equipment. The grantor may require all trimming of trees and natural growth to be done under its supervision and direction, at the expense of the grantee. In an emergency, the grantee may trim a tree or other natural growth on public property to the minimum extent necessary to address the emergency; provided that after such emergency trimming, the grantee shall promptly notify the grantor.

(10) The grantee shall obtain permission from the property owner prior to trimming any privately-owned trees or foliage.

(11) Grantee shall be subject to any and all requirements established by the grantor with regard to the placement and screening of grantee's facilities and equipment located in the public rights-of-way. Such requirements may include, but not be limited to, use of landscaping to screen pedestals and cabinets and, if technically and economically feasible, requiring that construction is flush with the natural grade of the surrounding area. Any requirement for flush mounting shall be established prior to the grant of any franchise, or prior to a major cable system upgrade or rebuild, and shall be on a general basis.

(Ord. 1025 § 6 (part), 2001)

(a) Subject to applicable law, in the event that more than one (1) franchise is awarded, the grantor reserves the right to limit the number of unused drop cables per residence or business

(b) If the grantor franchises multiple cable systems to operate within the municipal limits of the City, it shall do so on conditions that each new cable system entrant indemnify and hold harmless and reimburse the existing grantees from and against all costs and expenses incurred in strengthening poles, replacing poles, rearranging attachments, placing underground facilities and all other costs including those of grantees, the City and utilities, incident to inspections, make ready, and construction of an additional cable system in the franchise area; and grantee shall be designated a third party beneficiary of such conditions as are incorporated into the authorization(s) granted to such new entrant cable system.

(Ord. 1025 § 6 (part), 2001)