Chapter 21. Cable, Telecommunications, and Right-of-way Regulations

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning. The definitions contained in this article rely on those contained in the Cable Act. Any ambiguity shall be resolved by reference to the federal statutes, regulations and the decisions interpreting the same.

Cable act means the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996 and as may be further amended from time to time.

Cable operator means any person or group of persons who:

(1) Provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system; or

(2) Otherwise controls or is responsible for, through any arrangement, the management and operation of such cable system.

Cable service means:

(1) The one-way transmission to subscribers of video programming, or other programming service; and

(2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

Cable system means any facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and is provided to multiple subscribers within the city. Such terms shall not include:

(1) A facility that serves only to retransmit the television signals of one or more television broadcast stations;

(2) A facility that serves subscribers without using any public right-of-way;

(3) A facility of a common carrier which is subject, in whole or in part, to the provision of title II of the Cable Act, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

(4) An open video system that complies with section 653 of the Cable Act; or

(5) Facilities of any electric utility used solely for operating its electric utility system.

Federal Communications Commission or FCC means that federal agency as presently constituted, or any successor agency.

Franchise means the nonexclusive privilege, whether an initial authorization or renewal thereof, to construct and operate a cable system along the public ways in the service area. It is not intended to include or supersede or otherwise affect any license or permit required for the privilege of transacting and carrying on a business within the city as may be required by other ordinances or laws of the city.

Grantee means a person or group of persons and his or their lawful successor, transferee or assignee granted a franchise by the city council pursuant to this article.

Gross revenues means all amounts from whatever source which are received by a grantee from or in connection with the operation of the cable system to provide cable service within the service area, including, without limitation:

(1) Revenue received from subscribers, including, but not limited to, revenue for basic service, tier service, additional outlets, FM service, music service, commercial service, premium service, pay-per-view service and related event services, or for the distribution of any cable service over the cable system or the provision of any cable service-related activity in connection with the operation of the cable system;

(2) Revenue received from subscribers for installation, change in service and reconnection charges and similar fees;

(3) Revenue received from subscribers for converters, remote controls or other equipment leased or rented to subscribers;

(4) Revenue received from subscribers for service charges and fees attributable to delinquent accounts;

(5) Revenue received from third parties, including advertising revenue, home shopping commissions and leased access payments;

(6) To the extent consistent with law, any payment or consideration, including franchise fees, but excluding any utility users tax or other tax imposed by the city or the state or federal government, collected for direct payment to a third party;

(7) Revenue received by any other person which is derived from or in connection with the operation of a cable system to provide cable service to the extent that such revenue is derived through a means which has the effect of avoiding the payment of franchise fees to the city that would otherwise be paid herein.

There shall be deducted from gross revenue:

(1) Bad debts written off by the grantee in the normal course of its business; provided, however, that bad debt recoveries shall be included in gross revenue; and

(2) Refunds made to subscribers or other third parties.

In computing gross revenue from sources other than a grantee's subscribers, including, without limitation, revenue derived from the sale of advertising, home shopping services, leased access or any other revenues attributable or allocated to the grantee in accordance with generally accepted accounting principles but received by another entity affiliated with the grantee, the aggregate revenue received by the grantee from such other sources during the period in question shall be multiplied by a fraction, the numerator of which shall be the number of the grantee's subscribers in the city as of the last day of such period and the denominator of which shall be the number of subscribers represented in the general ledger where the revenue was allocated as of the last day of such period.

In means in, under, across, above, over, upon, through, among or in any manner connected with.

Local area office means a grantee's business office or service center located within the city or in close proximity thereof, as specified in each franchise.

Public ways means and includes, but is not limited to in any way, the surface of and the space above and below any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, lane, drive, circle or other public right-of-way, including but not limited to public utility easements, dedicated utility strips, parks, streams, tunnels or rights-of-way dedicated for compatible uses for the purpose of installing, operating, repairing and maintaining the cable system.

Service area means the area within the municipal boundaries of the city in which the grantee is authorized pursuant to a franchise to operate its cable system.

Subscriber means any person who lawfully receives cable service provided by a grantee's cable system.

(Ord. No. 8113, § 1(1), 10-23-97)

(a) Franchise required. A nonexclusive franchise to construct, operate and maintain a cable system within all or any portion of the city is required of any person desiring to provide cable service in the city. A franchise may be granted by the city council to any person, whether operating under an existing franchise or not, who offers to furnish and provide such cable services pursuant to the terms and provisions of this article and a franchise acceptable to the city council.

(b) Authority to regulate. To the extent allowed by law, the city council shall retain all authority to regulate noncable systems and noncable services as necessary to protect the public health, safety and welfare and to ensure compliance with all applicable federal, state and/or local laws and regulations. If the grantee is allowed by law and chooses to provide noncable services, the grantee and the city will negotiate the terms and franchise fees in accordance with federal and state law.

(c) Rights reserved to city. The city hereby expressly reserves the following rights:

(1) To exercise its governmental powers, now or hereafter existing, to the fullest extent that such powers may be vested in or granted to the city;

(2) To adopt and promulgate ordinances as it shall find reasonably necessary in the exercise of its lawful police power. Such power shall include the lawful right of the city to maintain control over its public ways, and to adopt such reasonable and nondiscriminatory regulations relating to public ways as the city and/or its departments shall hereinafter provide; and

(3) To exercise the lawful police powers of the city through amendment of this article as well as through enactment of separate ordinances and regulations.

(d) Limits on a grantee's recourse.

(1) The city shall have the immunity from damages afforded by the cable act, as well as all other applicable immunities to which it may be entitled.

(2) All franchises granted by the city shall require an acknowledgment from the grantee that the grantee has not been induced to accept the franchise by any promise, oral or written, by or on behalf of the city or any third person regarding any term or condition of this article or the franchise not expressed therein. A grantee further shall pledge that no promise or inducement, oral or written, has been made to any city employee or official regarding receipt of a franchise.

(3) All franchises granted by the city shall require an acknowledgment from the grantee that the grantee has carefully read the terms and conditions of this article and the franchise. The grantee's acceptance of the obligations imposed by the terms and conditions of this article shall be as specified in the franchise.

(4) A grantee agrees, by the acceptance of a franchise, to accept the validity under present law of the terms and conditions of the franchise and this article in their entireties, and that it will not, at any time, proceed against the city in any claim or proceeding under present law challenging any term or provision of this article or a franchise as unreasonable, arbitrary or void or that the city did not have the authority to impose such term or condition.

(5) The decision of the city council concerning the selection of one or more grantees and the award of one or more franchises is final, and all applicants shall agree as a condition of application not to contest the city council's decision in any court of law or before the Federal Communications Commission.

(6) Nothing in this article or in section 635A of the cable act shall be construed as creating or authorizing liability of any kind, under any law, for any action or failure to act relating to cable service or the granting of a franchise by the city or any official, member, employee or agent of such authority or entity.

(e) Unlawful acts; penalties.

(1) It shall be unlawful for any person to establish, operate or carry on the business of distributing to any person in the city any cable service by means of a cable system unless a franchise therefor has first been obtained pursuant to the provisions of this article and unless such franchise is in full force and effect.

(2) It shall be unlawful for any person to construct, install or maintain within any public way in the city, or within any other public property of the city, or within any privately-owned area within the city which has not yet become a public way but is designated or delineated as a proposed public way on any tentative subdivision map approved by the city, any equipment or facilities for distributing any cable service through a cable system, unless a franchise authorizing such use of such public way, property or area has first been obtained pursuant to the provisions of this article, and unless such franchise is in full force and effect.

(3) It shall be unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable system within the city for the purpose of enabling himself or others to receive any cable service without payment to the owner of the cable system.

(4) It shall be unlawful for any person without the consent of a grantee to willfully tamper with, remove or injure any portion of the cable system.

(5) Any person violating any subsection of this section shall be punished by a fine or by imprisonment or by both fine and imprisonment in accordance with federal, state or local law.

(f) Failure of city to enforce compliance. A grantee shall not be excused from complying with any of the terms and conditions of this article or a franchise by any failure of the city, upon any one or more occasions, to insist upon the grantee's performance or to seek the grantee's compliance with any one or more of such terms or conditions.

(g) Delivery of notices. Every direction, notice or order by the city to be served upon a grantee shall be delivered or sent by registered mail, certified mail, return receipt requested, or any such other means as specified in the franchise to the grantee at the address detailed in the franchise.

(h) Limitations on franchise. The rights granted by this article are subject to all franchises and permits heretofore or hereafter granted by the city council to use the public ways of the city by other public utility or public service corporations. It is not intended by the grantee of a franchise to abridge the exertion of the police power heretofore or hereafter granted to the city by the state. The grant of a franchise is subject to all ordinances and resolutions or agreements adopted by the city council as the same now exists or may be hereafter amended, revised or codified, in the lawful exercise of any other power granted to the city.

(i) Materiality of article. Specific mention of the materiality of any of the provisions in this article is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance pursuant to this article is material and substantial.

(j) Responsibility for publication costs. A grantee shall assume the cost of any publication required by law and such is payable upon a grantee's filing of acceptance of a franchise.

(k) Repeal of amendment of cable act. If any provision of the cable act or other statute, law or regulation which is relied upon in this article or in any franchise for any definition or requirement is repealed, then the language of such provision at the time of such repeal shall nevertheless continue to apply for purposes of this article or any franchise, regardless of such repeal, except as otherwise provided in this article or in any franchise or as prohibited by such subsequent repeal or amendment.

(l) Rights and remedies. The rights and remedies of the parties pursuant to a franchise are cumulative, except as otherwise provided in a franchise, and shall be in addition to and not in derogation of any other rights or remedies which the parties may have with respect to the subject matter of a franchise. A waiver of any right or remedy by a party at one time shall not affect the exercise of such right or remedy or any other right or other remedy by such party at any other time. The failure of the city to take any action in the event of material breach by the grantee shall not be construed or otherwise be deemed to constitute a waiver of the right of the city to take such action at any other time if such material breach has not been cured or with respect to any other material breach by the grantee.

(m) If franchise declared invalid. If, after the effective date of any franchise, any court, agency, commission, legislative body or other authority of competent jurisdiction declares a franchise invalid in whole or in part, or requires the grantee either to perform any act which is inconsistent with any provision of a franchise or cease performing any act required by any provision of a franchise, the city shall reasonably determine whether such declaration or requirement has a material and adverse affect on the franchise. When the grantee intends to exercise its rights pursuant to such declaration, the grantee shall so notify the city of such declaration or requirement. If the city determines that such declaration or requirement has a material and adverse affect on a franchise, it may send a written request to the grantee to enter good faith negotiations with the city to amend the franchise. Nothing in this subsection shall be construed as a requirement for a grantee to agree to amend a franchise in the event of such preemptive declaration or action.

(Ord. No. 8113, § 1(2), (20), 10-23-97)

(a) Application for new franchise.

(1) Submittal; nonrefundable fee. An application for a new franchise shall be submitted to the city council, or its designee, on a written application form furnished by the city, and in accordance with the procedures and schedule to be established and published by the city council. The application will require the facts and information detailed in subsection (a)(3) of this section. Applications shall be accompanied by a nonrefundable application fee of $5,000.00 to the order of the city, which amount shall be used by the city to offset direct expenses incurred in the franchising and evaluation procedures, including, but not limited to, staff time and consulting assistance.

(2) Grantee to pay costs of granting franchise. An applicant to whom the city council grants a nonexclusive franchise in addition to the nonrefundable fee specified in subsection (a)(1) of this section shall pay to the city, within 30 days of receipt of notice of the amount, an amount set by the city council or its designee, which shall represent the remaining out-of-pocket costs incurred by the city, in granting the franchise and not defrayed by fees forthcoming from the provisions of subsection (a)(1) of this section.

(3) Contents. Ten copies of the application shall be filed with the city clerk and shall contain such information as the city may require, including, but not limited to:

a. A general description of the applicant's proposed operation;

b. A statement detailing its business or corporate organization, including, but not limited to, the identification of any person holding a ten percent or greater interest in the applicant's business and a statement disclosing ten percent or greater interest that the applicant has in any other business;

c. A written commitment to timely service and restoration of property;

d. A schedule of proposed charges;

e. A statement setting forth the channels to be allocated for community, municipal, education and leased access; a description of the production facilities and equipment to be made available by the applicant for access; and a statement establishing any additional revenues to be designated for programming or programming assistance for the access channels;

f. If the applicant is a corporation, an audited financial statement for the five previous fiscal years. If the applicant is a partnership, copies of the U.S. Partnership Return of Income (IRS Form 1065) for the five previous fiscal years. If the applicant is a sole proprietorship, copies of personal financial statements for the five previous fiscal years;

g. An estimated five-year operations pro forma which shall include the initial and continuing plant investment, annual profit and loss statements detailing income and expenses, annual balance sheets and annual levels of subscriber penetration. The pro forma shall also state the average return on investment anticipated by the applicant for the five-year operations period and shall state the method of computation thereof. Costs anticipated for voluntary services or contributions shall, if present, be incorporated in the pro forma as required in this article, but shall be separately identified in the pro formas;

h. A listing of existing franchises held by the applicant indicating when the franchises were issued and when the networks were constructed in each respective governmental unit, together with the name and address and phone number of a responsible governmental official knowledgeable of the applicant;

i. A statement detailing the applicant's prior experience in a cable system and/or microwave service, including that of its officers, management and any staff to be associated with the proposed operation;

j. A general statement of the applicant's ability and intent to incorporate technological improvements and advancements in the cable system as such improvements or advancements are generally available in the industry; and

k. Any other reasonable and applicable information which the city council may request.

(4) Public inspection, evaluating applications, public hearing.

a. Upon filing, any franchise application and related documents are public records, open to inspection by the public during reasonable hours, including specifically the regular business hours of the city clerk.

b. Following reasonable notice to the public, any franchise application shall be available for inspection for a period of at least 20 days prior to the city council taking action on the application. Any citizen of the city shall have the right to comment in writing, filed in advance or orally at any meeting at which a franchise application is to be considered.

c. The city shall endeavor to send written notice to all cable operators holding current franchises with the city when a new franchise application is received. Such notice shall include the applicant's name, a statement that the franchise application is available for public inspection and the date of any public hearing on the application, if known at the time of the sending of the notice. The city shall have no obligation to supplement any notice given pursuant to this subsection.

d. Before authorizing the issuance of any such franchise, the city council shall review the applicant's legal, character, financial and technical qualifications and the adequacy and feasibility of the applicant's qualifications to operate a cable system within the city based upon information provided to the city council by the applicant and by other sources in writing or at any public hearing or meeting of the city council and shall conduct a public hearing thereon with at least seven days' advertised notice prior to such public hearing.

(5) Awarding a new franchise.

a. After examining any application submitted pursuant to procedures established in this section and as hereafter amended by the city council designed to assure the legal, financial, technical and character qualifications of an applicant to provide cable service, the city council is authorized, after a full hearing affording due process, to grant a nonexclusive franchise conveying the privilege to construct and operate a cable system within the public ways of the city. A franchise may be awarded to any applicant which in the city council's judgment will appropriately serve the public interest and whose construction and financial plans and arrangement are both feasible and adequate to fulfill the conditions set forth in this article and incorporated into any franchise granted.

b. No provisions in this article shall be deemed or construed to require the city council to grant a franchise following receipt of any franchise application.

(6) Franchise term. The length of term of a franchise shall be determined in the franchise; however, such term shall not exceed 15 years from the date the franchise is accepted by the grantee by written agreement with the city or from the expiration of a grantee's previously existing franchise, whichever is later, unless terminated earlier in accordance with this article or the franchise.

(b) Franchise fees.

(1) Grantee to pay city five percent of gross revenue as a franchise fee. For the reason that the public ways which are used by the grantee in the operation of its cable system within the boundaries of the city are valuable public properties acquired and maintained by the city at great expense to its taxpayers, and that the grant of the privilege to the grantee to use such public ways is a valuable property right without which the grantee would be required to invest substantial capital in right-of-way costs and acquisitions, and because the city will incur costs in regulating and administering the franchise, the grantee shall pay to the city an amount equal to five percent of the grantee's gross revenues.

(2) Franchise fee to be paid annually with statement verifying all collected gross revenues. The franchise fee shall be payable annually to the city, and sent to the city's director of finance. Such payment shall be made on or before the 60th day after the last day of each calendar year during which a franchise is in effect or the date of expiration or termination of a franchise, whichever occurs first. The payment shall be accompanied by a statement of gross revenues prepared by an independent certified public accountant, accounting firm or the grantee's chief financial officer verifying that the grantee's total gross revenues as defined in this article were fairly stated and that the franchise fees were calculated in accordance with this article and the franchise.

(3) City may examine all grantee's records to determine accuracy of amounts payable to the city. Upon 30 days' written notice to the grantee, the city shall have the right to audit and to recompute any amounts determined to be payable under this article and the franchise. Any additional amount due to the city as a result of the audit, which amount shall include interest as proscribed in subsection (b)(4) of this section from the date such amounts should have been paid, shall be paid within 45 days following written notice to the grantee by the city. Such notice shall include a copy of the audit report. The cost of such audit shall be borne by the grantee if it is determined that the grantee's annual payment to the city for any year was underpaid by more than five percent.

(4) Late payment of franchise fee to be charged interest at 12 percent. If any franchise payment or recomputed amount is not made on or before the applicable dates specified in subsection (b)(2) of this section, and following ten days' written notice by the city to a grantee, interest shall be charged daily from such date at the annual rate of 12 percent or at the maximum rate allowed by law, whichever is less.

(5) Acceptance of any payment does not constitute release of all payments due. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the city may have for further or additional sums payable under this article and/or the franchise.

(6) City reserves right to increase franchise fee. The city reserves the right to increase the franchise fee rate if the current federal limitations as to the franchise fee rate are changed as a result of superseding regulations, laws or court action. Any change in the franchise fee rate shall be accomplished by amendment to this article and each franchise, provided that such amendments shall be preceded by a public hearing affording due process.

(7) Article does not exempt grantee from other taxes. Nothing contained in this article shall be construed to exempt the grantee from any lawful tax, business license, levy or assessment which is now or which hereafter be authorized by law.

(8) Collection of other taxes or fees. The city reserves the right to require the grantee to collect any consumer or other tax or other fee of that may be lawfully imposed on subscribers by the city.

(Ord. No. 8113, § 1(3), 10-23-97)

The grantee's acceptance of the obligations imposed by the terms and conditions of this article shall be as specified in the franchise. A grantee shall also agree to provide the cable system and all of the cable services specifically set forth in a franchise. In the event of a conflict between the franchise and the provisions of this article, the provisions of the franchise shall prevail. Failure to provide cable services as promised in the grantee's franchise shall be deemed a breach of the franchise to which the provisions of sections 21-45 and 21-46 shall apply.

(Ord. No. 8113, § 1(4), 10-23-97)

(a) The city is hereby empowered to take legal equitable action to set aside, annul, revoke or cancel a franchise or the transfer of a franchise, if such transfer is not made according to the procedures set forth in this article, or is not in the best interest of the city or the public.

(b) Transfer of a franchise means any transaction in which an ownership or interest in a grantee or its cable system is transferred from one person or group of persons to another person or group of persons so that control of the grantee is transferred, or the rights and/or obligations held by the grantee under a franchise are transferred or assigned to another person or group of persons.

(1) A rebuttable presumption that transfer of control has occurred shall arise upon the acquisition or accumulation by any person, or group of persons, of 35 percent of the voting interest of the grantee or of the person exercising management authority over the grantee. Any purchases or acquisitions of the grantee's stock made by a person other than an officer or director of the grantee over a stock exchange or in the over-the-counter market of which the grantee or any affiliate of the grantee has no control, shall not be subject to the requirements of subsection (b)(4) of this section.

(2) A transfer is pro forma when it involves no substantial change in the ultimate ownership or control of the franchise.

(3) No transfer of a franchise shall occur without prior approval of the city, and such approval shall not be unreasonably withheld.

(4) The grantee shall promptly notify the city in writing of a proposed transfer and shall file with the city clerk an application for transfer of a franchise. The transfer application shall provide complete information of the proposed transaction, including a copy of the proposed agreement, details on the legal, financial and technical qualifications of the transferee as well as any other qualifications the city can lawfully evaluate, and on the potential impact of the transfer on subscriber rates and service.

(5) An application for approval of a pro forma transfer of a franchise shall be considered granted on the 31st calendar day following the filing of such application with the city unless, prior to that date, the city notifies the grantee to the contrary or the city extends such period of time for an additional 30 days. An application for approval of a pro forma transfer of a franchise shall clearly identify the application as such.

(6) In making a determination on whether to grant an application for the transfer of a franchise, the city council shall consider the legal, financial and technical qualifications of the transferee to operate the cable system, as well as any other qualifications the city can lawfully consider; whether the grantee is in compliance with its franchise and the applicable provisions of this article and, if not, the grantee and/or the proposed transferee's commitment and plan to cure such noncompliance; and whether operation by the transferee would adversely affect cable services to subscribers or otherwise be contrary to the public interest to the extent the city can lawfully consider such matters.

(7) No application for a transfer of a franchise shall be granted unless the transferee agrees in writing that it will abide by and accept all applicable terms of this article and the franchise and that it will assume the obligations and liability of the previous grantee under this article and the franchise, including whatever conditions that may be necessary to be prescribed by the city council that will assure such terms, obligations and liabilities will be honored and carried out by the transfer.

(8) Approval by the city of a transfer of a franchise does not constitute a waiver or release of any of the rights of the city under this article or the franchise, whether arising before or after the date of the transfer.

(9) The city shall have 120 days to act upon any transfer request that is accompanied by the information required in this section. If the city fails to act on a request within 120 days of receiving the requested information, the transfer request shall be deemed granted, unless the requesting party and the city agree to an extension of time.

(10) The city may impose a reasonable and related processing fee to cover its costs of considering and evaluating an application for transfer of a franchise, such fee not to exceed $1,500.00.

(Ord. No. 8113, § 1(5), 10-23-97)

(a) Indemnification of city in franchise operation.

(1) It shall be expressly understood and agreed by and between the city and any grantee that the grantee shall defend, indemnify and hold the city, its officers, agents and employees (collectively the "city"), harmless against any and all claims, lawsuits, judgments, costs and expenses, including attorneys' fees, for personal injury, death, property damage or other harm for which recovery of damages is sought, suffered by any person, that may arise out of or be occasioned in any way by the granting of a franchise or the enactment and enforcement of the franchise and/or this article, where such injuries, death or damages are caused by the joint negligence of the city and the grantee, its officers, agents and/or employees and/or by the joint or sole negligence of the grantee, its officers, agents and/or employees. It is the expressed intention of the parties hereto, both the grantee and the city, that the indemnity provided for in this subsection is indemnity by the grantee to indemnify, protect and defend the city from the consequences of the city's own negligence where that negligence is a concurring cause of the injury, death or damage with that of the grantee, its officers, agents and/or employees, and/or the grantee's joint and sole negligence. Furthermore, the indemnity provided for in this subsection shall have no application to any claim, loss, damage, cause of action, suit and liability where the injury, death or damage results from the sole or concurrent negligence of the city unmixed with the fault of the grantee.

(2) The indemnity provided for in this section shall expressly include, but not be limited to, indemnification by the grantee for the use, occupancy and maintenance of any of the cable system; any act or omission of any representative, agent, customer and/or employee of the grantee; the grantee's breach of any of the terms or provisions of the franchise; and any negligent or strictly liable act or omission of the grantee, its officers, agents, representatives, customers, employees or subcontractors in the use, occupancy and maintenance of the cable system. It is the expressed intention of the grantee and the city that the indemnity provided for in this section includes an indemnity to protect and defend the city from the grantee's own negligence as well as the concurrent negligence of the city when mixed with that of the grantee. If any action or proceeding is brought against the city by reason of any of the provisions contained in this section, the grantee further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the city, such acceptance not to be unreasonably withheld.

(3) In addition to the foregoing, the grantee covenants and agrees never to make a claim of any kind or character whatsoever against the city for damage of any kind that it may suffer by reason of the installation, construction, reconstruction, operation or maintenance of any public improvement, utility or communication facility, whether presently in place or which may in the future be constructed or installed, including, but not limited to, any water or wastewater mains or storm sewer facilities, regardless of whether such damage is due to flooding, infiltration, backflow or seepage caused from the failure of any installation, natural causes or city's negligence when such negligence is mixed with that of the grantee, its officers, agents and/or employees.

(b) Reimbursement of costs.

(1) By acceptance of any franchise, the grantee agrees to assume responsibility of the investigation, settlement or defense of any claim made or suit brought against the city due to any liability or potential liability incurred per the provisions of subsection (1) of this section, provided that:

a. The city agrees to the extent allowed by law to cooperate fully with the grantee and its insurers, and to abide by any and all terms, conditions and restrictions of the grantee's commercial insurance policies;

b. The city will incur no defense expenses, nor will it make any offers of settlement on any claim or suit included under subsection (a)(1) of this section, unless so authorized by the grantee and its insurers; and

c. The city provides the grantee written notice of its obligation to defend the city within 20 days of receipt of a claim or within ten days of receipt of a citation or summons in connection with a lawsuit.

The grantee further agrees to assume all costs and expenses associated with defending the city against any claim made or suit brought in accordance with the provisions of subsection (a) of this section, subject to the provisions of subsections (b)(1)a, (b)(1)b and (b)(1)c of this section.

(2) The grantee shall pay and by its acceptance of any franchise agrees that it will pay all expenses incurred by the city defending itself with regard to all claims, lawsuits, judgments, costs and expenses mentioned in subsection (a) of this section, subject to the provisions of subsection (b)(1)b of this section.

(c) Public liability insurance. A cable operator shall maintain and by its acceptance of any franchise agrees that it will maintain throughout the term of the franchise or any renewal or extension thereof, a commercial general liability insurance policy, which coverage shall be at least as broad as ISO CG 00 01 10 93, protecting the city and all persons against liability for loss or damage for personal injury, death or property damage, occasioned by the operations of the cable operator under any franchise granted hereinafter in the amounts of:

(1) Five hundred thousand dollars for bodily injury or death to any one person, within the limit within a 12-month period; however, of $1,000,000.00 for bodily injury or death resulting from any one accident within a 12-month period;

(2) Two hundred fifty thousand dollars for property damage resulting from any one accident within a 12-month period;

(3) Automobile liability insurance with combined single limits of $500,000.00 per accident within a 12-month period for bodily injury and property damage; and

(4) Workers' compensation insurance in compliance with all workers' compensation insurance and safety laws of the state, and amendments thereto.

All insurance carriers providing coverage should be licensed and admitted to do business in the state. All certificates of insurance shall designate the city, its officers, boards, commissions, agents and employees as an additional insured. All policies are to be of the occurrence form. Automobile coverage is to include all owned and hired autos if applicable.

(d) Notice of cancellation or reduction of coverage. The insurance policies mentioned in subsection (c) of this section shall state that the policies are extended to cover the liability assumed by the cable operator under the terms of any franchise and shall contain an endorsement that the policy may not be canceled nor the amount of coverage thereof reduced below the limits required in the franchise with the city until 30 days after receipt by the city by registered mail of written notice of such intent to cancel or reduce the coverage.

(e) Evidence of insurance filed with the city. The grantee shall file and maintain with the city, during the term of a franchise or any renewal thereof, a certificate of insurance evidencing coverage as required in this section.

(f) Insurance company's rating. Insurance is to be placed with insurers with a Best rating of no less than A or equivalent.

(g) Waiver of subrogation on workers' compensation policy. The insurer shall agree to waive all rights of subrogation against the city, its officials, employees and volunteers for losses arising from the activities under a franchise.

(h) No waiver of construction performance and payment bonds or letter of credit. Neither the provisions of this article nor any insurance accepted by the city pursuant thereto, nor any damage recovered by the city thereafter, shall be construed to excuse faithful performance by the cable operator or limit the liability of the cable operator under this article or any franchise granted pursuant hereto, or for damages, either to the full amount of the bonds, letter of credit or otherwise.

(i) Construction performance and payment bonds.

(1) Grantee shall be required to obtain construction performance and payment bonds in an amount established in a franchise.

a. In conjunction with subsection 21-37(a), 30 days prior to commencing construction or reconstruction of the cable system, the grantee shall be required to obtain and maintain throughout the period of construction or reconstruction, at its cost and expense, and file with the city clerk, performance and payment bonds issued by a corporate surety bond company authorized to do business in the state for an amount established in the franchise to guarantee the timely construction and activation or reconstruction of the cable system, the safeguarding of damage to private property, restoration of damage incurred with utilities and payment to all persons who performed services regarding the construction or reconstruction of the cable system.

b. The bonds shall include the following condition: There shall be recoverable by the city, jointly and severally from the principal and surety, any and all damages, losses or costs suffered by the city resulting from the failure of a grantee to satisfactorily complete and fully activate the cable system throughout the service area pursuant to the terms and conditions of this article and the franchise.

(2) Bond must be maintained through any extension of construction time limit authorized by city council. The construction performance and payment bonds shall be available throughout any extension to the prescribed construction or reconstruction time limit authorized by city council pursuant to subsection 21-37(b).

(3) Termination of the construction bond. At such time as the initial construction and activation or reconstruction of the cable system is complete pursuant to the terms and conditions of this article and the franchise, the grantee shall notify the city of its intent to cancel the construction bond. The construction bond may be terminated by the grantee six months from the date of notice unless the city council agrees that the bond may be terminated sooner, or the city council finds that a grantee has not satisfactorily completed initial construction and activation or reconstruction of the cable system pursuant to the terms and conditions of this article and the franchise. In the latter event, the city shall notify the grantee in writing of their specific findings, and the grantee shall maintain the construction bond until the city finds that the construction has been satisfactorily completed.

(4) Rights with respect to construction bond in addition to all other rights of city. The rights reserved to the city with respect to the construction bond are in addition to all other rights of the city, whether reserved by this article or authorized by law, and no action, proceeding or exercise of a right with respect to such construction bond shall affect any other rights the city may have.

(5) Endorsement required. The construction bond shall contain an endorsement that the bond may not be canceled by the surety nor the intention not to renew be stated by the surety until 30 days after receipt by the city, by registered mail, of written notice of such intent to cancel or not to renew.

(Ord. No. 8113, § 1(6), 10-23-97)

(a) Construction or reconstruction plan and strand map to be provided. A grantee shall submit a construction or reconstruction plan not less than 30 days prior to the date the grantee intends to commence construction or reconstruction. The grantee shall, if requested, permit the city manager or the city manager's designee to examine the cable system design details at the grantee's office for the purpose of ascertaining if the plan and design details are in compliance with the franchise. The plan shall include a strand map of the entire service area and shall clearly delineate the following:

(1) Areas within the service area where the cable system will be constructed or reconstructed, including a time schedule of construction or reconstruction for each year that construction or reconstruction is proposed; and

(2) Areas within the service area where extension of the cable system cannot reasonably be done due to lack of present or planned development or other similar reasons, with the areas and the reasons for not serving them clearly indicted on the map.

(b) Delay in system construction or reconstruction requires consent by city council. Any delay in the cable system construction or reconstruction beyond the times specified in the franchise shall require application to and consent by the city council. Any delay beyond the terms of the construction timetable, unless approved by the city council, will be considered a violation of the franchise for which the provisions of subsection 21-36(i) and section 21-45 shall apply. However, nothing in this section shall prevent a grantee from constructing or reconstructing the cable system earlier than required in the franchise.

(c) Failure to proceed with construction and/or reconstruction expeditiously is grounds for liquidated damages. Construction or reconstruction in accordance with the franchise shall occur according to the time schedule as agreed to therein. Failure to meet the time schedule shall be grounds for liquidated damages.

(d) Line extension policy. Extension of a cable system into any area shall be required to be accomplished within 90 days from a potential subscriber's request if the terms of any of the following conditions are met:

(1) Mandatory extension rule.

a. Residential. The grantee shall extend its cable system to any area within its service area or to any area annexed by the city after the effective date of a franchise granted by the city if the cable system has a density of at least 60 potential subscriber equivalent billing units per mile and is not served by another cable operator. The cable system extension shall be at no cost to the subscribers, other than the standard/nonstandard rates for installation.

b. Commercial/industrial. The grantee shall be required to extend the cable system to any commercial/industrial property which has prepaid for the grantee's costs of extending its cable system.

(2) Early extension. In areas not meeting the requirements for mandatory extension of cable system, a grantee shall provide, upon the request of one or more potential subscribers desiring cable service, an estimate of the costs for time and material required to extend cable service to such subscribers. Cable services may be made available on the basis of a capital contribution in aid of construction, which shall include such estimates. For the purpose of determining the amount of capital contribution in aid of construction to be borne by a grantee and subscribers in the area in which service may be expanded, a grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of potential subscriber equivalent billing units per mile of its trunk or distribution cable, and whose denominator equals 60. Subscribers who request service pursuant to this subsection will bear the remainder of the construction and other costs on a pro rata basis. A grantee may require that the payment of the capital contribution in aid of construction borne by such subscribers be paid in advance or that such subscribers give assurance of payment satisfactory to grantee. Once the requirements for service under this section are satisfied, the grantee shall be obligated to provide residential service to qualified areas within 90 days of a request.

(3) Additional coverage. Nothing in this section shall be construed to prevent the grantee from serving areas not covered under this section upon agreement with developers, property owners or residents.

(e) Service drops.

(1) The grantee shall make cable service available to any subscriber within the service area upon request and at the standard installation charge if the installation requires no more than a 125-foot aerial or underground drop measured from the nearest point of a subscriber's home or place of business to the nearest active tap of the cable system. A standard installation includes any necessary street cutting or boring, one outlet and standard materials. A standard installation does not include house amplifiers or a wall fish installation.

(2) If making cable service available requires more than a standard installation, the grantee may charge the subscribers the standard installation charge and an amount equal to the reasonable actual labor and material costs incurred by the grantee for the additional facilities and work.

(3) Absent a showing by the grantee to the city manager of unusual circumstances, such as, but not limited to, street crossings, any standard installation shall be accomplished within seven business days of a subscriber's request, and a non-standard installation shall be accomplished within 15 business days of a subscriber's request.

(f) System construction and operation to be consistent with federal, state and city code requirements; city to observe semiannual proof of performance tests. Construction, installation and maintenance of the cable system shall be performed in an orderly and workmanlike manner. The grantee shall construct, install, operate and maintain its cable system in a manner such that it operates at all times consistent with all laws, ordinances and construction standards of the city and state; the relevant editions of the National Electrical Safety Code and the National Electrical Code, as they affect the construction, maintenance of power supplies and communication lines, attachments and supports; and part 76 of the Rules and Regulations of the Federal Communications Commission. In addition, a grantee shall provide the city, upon a written request of the city manager, with the opportunity to observe the conduct of, and receive a written report of, the results of the grantee's semiannual proof of performance tests. The cable system shall not endanger or unreasonably interfere with the safety of persons or property in the service area or the unincorporated area located 5,000 feet beyond the service area which is not in another municipality's extraterritorial jurisdiction. All equipment and maintenance will be of high quality.

(g) Additional specifications; standby power.

(1) A grantee shall construct, install and maintain the cable system, subject to the supervision of the city, in an orderly and professional manner using due diligence and materials of good and durable quality. All cables and wires shall be installed, where possible, parallel with and in the same manner as electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations. Underground installations shall be in conformance with all applicable codes.

(2) In all cable systems constructed or reconstructed after the effective date of the ordinance from which this article is derived, a grantee shall maintain equipment capable of providing standby power to be engaged automatically in the event of a power failure for 24 hours at all headend, tower and HVAC systems, and for a minimum of 1½ hours at all trunk and distribution amplifiers or fiber optic nodes. All other cable systems shall come into compliance with these standby power requirements on the schedule specified in the franchise.

(h) Access to grantee's trenches by other utilities. During cable system construction or reconstruction, the grantee shall allow other entities reasonable access as determined by the city to put other compatible facilities in the grantee's trenches while the trenches are open and which do not delay or unreasonably interfere with the grantee's construction process. Any utility desiring access to the grantee's trenches shall share equally in the cost of opening and closing of trenches. The grantee shall be allowed access to the open trenches of other entities on an equitable basis.

(i) If city determines any part of facilities are harmful to health and safety of any person, grantee shall promptly correct. If, at any time, it is determined by the city or any other agency or authority of competent jurisdiction that any part of the cable system is endangering the public, including, without limitation, missing vault or pedestal covers, temporary drop cables that cross walkways, driveways or other areas, and low cables, riser problems and other violations of local or state codes and laws that are harmful to the health or safety of any person, then a grantee shall correct all such conditions, at its own cost and expense, immediately, or no later than 24 hours of receipt of notice from the city or any other agency or authority of competent jurisdiction. Until such conditions are corrected, the grantee shall issue suitable warnings to ensure that the health and safety of persons possibly affected are ensured.

(j) Grantee's cable system not to interfere with subscribers' ability to use television receiver. A grantee shall not interfere with the ability of any subscriber to utilize his television receiver for any lawful purpose. The connection of any cable input selector device or any converter to a subscriber's terminal shall not be considered as interference with the subscriber's ability to utilize his television receiver.

(k) Grantee to take all necessary steps to prevent accidents. A grantee shall, at its own cost and expense, take all necessary efforts to prevent accidents at its worksites, including the placing and maintenance of proper guards, fences, barricades and security personnel and, at night, suitable and sufficient lighting.

(l) Notice of cable construction/repair. The grantee will notify residents and businesses on affected streets of pending construction or major repairs, including any which require street or sidewalk trenching, at least 48 hours prior to commencement of such work. Notification shall be by leaving an appropriate notice at the affected residence (i.e., door hanger notice), or mailing a notice to the affected residences and businesses. In the event of any construction possibly affecting businesses and/or residences throughout the service area, a grantee shall notify such businesses or residences by first-class mail, stating the scope and duration of the proposed construction and its impacts at least 14 days prior to commencement of such work.

(Ord. No. 8113, § 1(7), 10-23-97)

(a) All grantee's facilities to be installed only at locations approved by city engineer.

(1) All poles, wires, cables, lines, conduits or other properties of a grantee to be constructed or installed in public ways shall be so constructed or installed only at such locations and in such manner as shall be approved in writing by the city engineer in the exercise of his reasonable discretion.

(2) A grantee or its contractors must obtain permits from the city engineer and/or other appropriate departments of the city prior to any physical work being performed on the public ways or on city-owned property. Permits will be issued to a grantee or its contractors only on approved plans which must be submitted on or before the request of the construction permit. All work will be done in accordance with the city's specifications and must comply with all applicable city construction codes and procedures. A grantee shall not place its cable system, or any part thereof, where such cable system will interfere with any gas, electric or telephone fixtures, water hydrant or main, drainage facility or sanitary sewer.

(3) In those areas of the service area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and/or electric services are underground, the grantee likewise shall construct, operate and maintain all of its cable system. For aesthetic purposes, a grantee will make every effort to utilize present utility poles and shall bury as much as possible of its cable system underground. However, for installations occurring after the effective date of a grantee's franchise, and at the time a grantee rebuilds or upgrades the cable system, all affected trunk or feeder cable (coaxial, fiber or functional equivalent) must be placed underground if electric and/or telephone services are also placed underground at the time of the new installation. The aesthetics of the property will be deemed a high priority in the installation, maintenance and repairs.

(b) During construction, reconstruction or maintenance of system grantee shall not obstruct public ways without prior consent of authorities. In connection with the construction, reconstruction, operation, maintenance, repair or removal of the cable system, a grantee shall give due regard to the aesthetics of the service area and shall not obstruct, endanger or interfere with the proper use of the public ways, railways, passenger travel or other traffic to, from or within the city without prior written consent of the appropriate authorities, except in cases of emergency repairs where the grantee shall use its best efforts to minimize disruption and shall provide prompt notice to the city as soon as practicable, and, in any event, no later than 24 hours after the commencement of the emergency repair. In addition:

(1) All transmission and distribution structures, lines and equipment erected by a grantee within the city shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any public way.

(2) In case of any disturbance to any public way, a grantee, at its own cost and expense and in a manner and time period approved by the city manager, shall replace and restore such public way to a condition better than or reasonably comparable to that in existence before the work involving such disturbance was done as determined by the city engineer. Restoration must be completed within a reasonable time after commencement of the restoration project. Failure to timely restore the public way shall constitute a material default of this article and will subject any franchise granted to a grantee to the procedures for termination set forth in section 21-46.

(3) If a grantee's cable system creates a hazardous or unsafe condition or an interference with a public way, then at its own expense, the grantee shall voluntarily, or upon the request of the city or its city manager, remove that part of the cable system that creates the hazardous condition from the subject property. Failure to timely remove the cable system as required in this subsection will be considered a material default of this article and will subject any franchise granted to a grantee to the procedures for termination set forth in section 21-46.

(4) If at any time the grantee disturbs the yard, residence or other real or personal property of a resident of the city, the grantee shall ensure that the resident's yard, residence or other personal property is returned, replaced and/or restored to a condition better than or reasonably comparable to that in existence before the disturbance as determined by the city engineer. The cost associated with both the disturbance and the return, replacement and/or restoration shall be borne by the grantee. The requirements imposed upon the grantee shall extend to any subcontractor or independent contractor that the grantee might employ to perform the tasks outlined in this section.

(c) Grantee to provide strand maps to affected utility companies of entire system prior to issuance of permit for construction or reconstruction. Strand maps are to be filed with affected utility companies. Prior to requesting the issuance of a permit for the installation of any facility or apparatus in accordance with the provisions of this section, a grantee shall file such maps with all utility companies and public agencies whose facilities are affected by such installation.

(d) Upon undergrounding of utility lines, grantee shall concurrently place lines underground at depth approved by city engineer. All underground facilities of a grantee in any public way or in any private easement shall be installed at such depths and locations as shall be approved by the city engineer, except with respect to such cable service lines where the grantee uses existing poles with permission from their owner, and where and so long as electric and telephone lines to the subscribers are overhead. Upon the undergrounding of the utility lines of the owner of such poles, a grantee shall concurrently (or earlier) place its facilities underground at depths and locations approved by the city engineer. Reasonable written notice of the undergrounding of wires will be sent to affected cable operators; and when possible, reasonable access to open trenches at such time as the utility lines are being placed underground will be granted.

(e) Relocation at request of the city. When requested to do so by the city manager for the safety or convenience of the city, its franchise holders or citizens affected thereby, or any other governmental entity, a grantee, at its own expense, shall protect, support, temporarily dislocate or temporarily or permanently remove or relocate any facilities or portion of the cable system installed, used or maintained under a franchise. It is expressly provided that whenever by reason of the construction, repair or maintenance of the relocation, lowering of the grade, widening, raising of any public way by the city or by the location or manner of construction, reconstruction, maintenance or repair of any public structure or facility by the city, it shall be deemed necessary by the city manager to relocate, move, change, alter or modify any of its facilities, such change, relocation, alteration or modification shall be promptly made by the grantee when ordered in writing by the city or its city manager without claim for reimbursement or damages against the city. Upon notification to the grantee as provided in this subsection, the grantee shall remove and relocate that portion of the cable system at its own expense as directed by the city. In nonemergency situations, the grantee is entitled to 48 hours' advance written notice to arrange for such temporary wire changes. However, no such notice shall be required by the city in emergency situations. Emergencies will be determined by the city manager at his sole discretion. Failure to timely perform will be considered a material default of this article and will subject any franchise granted to a grantee to the procedures for termination set forth in section 21-46.

(f) Grantee shall obtain prior approval before altering any municipal facility; alternations to be at cost of the grantee. In connection with the construction, operation, maintenance, inspection, repair or removal of the cable system, a grantee shall, at its own cost and expense, protect any and all existing structures belonging to the city. A grantee shall obtain the prior approval of the city before altering any water main, sewage or drainage system or any other municipal structure in a public way, because of the presence of the system in the public ways. Any such alteration shall be made by a grantee, at its sole cost and expense, and in a manner reasonably prescribed by the city. A grantee shall also be liable, at its own cost and expense, to replace or repair and restore to a condition better than or reasonably comparable to that which existed before any such alteration as determined by the city engineer and in a manner reasonably specified by the city, any public way or other public place or any municipal structure involved in the construction of the cable system that may become disturbed or damaged as a result of any work thereon by or on behalf of the grantee pursuant to a franchise.

(g) Grantee shall temporarily move its wires to permit moving of buildings or structures by third persons. The grantee shall, at the request of any person holding a moving permit issued by the city, temporarily remove, raise or lower its wires to permit the moving of buildings or structures; provided, the reasonable expense of such temporary raising or lowering of wires is paid by such person, including, if required by the grantee, making such payment in advance; and the grantee is given not less than seven calendar days advance written notice to arrange for such temporary wire changes in nonemergency situations. However, no such notice shall be required by a benefitted person in emergency situations. Emergencies will be determined by the city manager.

(h) Failure by grantee to complete required work in any public way can result in city causing work to be done at expense of grantee. Upon failure of the grantee to complete any work required by law, or by the provisions of this article or a franchise, to be done in any public way or other public place within ten days following due notice and to the reasonable satisfaction of the city engineer, the city may, at its option, cause such work to be done and a grantee shall pay to the city the reasonable cost thereof in the itemized amounts reported by the city engineer to the grantee within 30 days after receipt of such itemized report. Or, at the city's option, the city may demand of the grantee the estimated cost of such work as estimated by the city engineer, and such shall be paid by the grantee to city with 30 days of such demand; upon award of any contract or contracts for such work, the grantee shall pay to the city within 30 days of demand any additional amount necessary to provide for cost of such work. Upon completion of such work, the grantee shall pay to the city or the city shall refund to the grantee such sums of that total received and retained by city shall equal the cost of such work. Cost as used in this section shall include 15 percent of other costs for the city's overhead.

(i) City may remove grantee's facilities as may be required during emergencies. The city reserves the right to remove any portion of a grantee's equipment and facilities as may be required in the case of fire, disaster or any emergency as determined by the city's onsite designee without liability for interruption of cable service and the city shall not be obligated to restore cable service or to pay the costs of expenses of restoring cable service.

(j) Cost of tree trimming is to be at expense of grantee; city has option to decide whether city or grantee does the trimming. A grantee shall notify the city regarding the need to trim trees upon and overhanging public ways of the city so as to prevent the branches of such trees from coming into contact with the wires and cables of the grantee; at the option of the city, such trimming may be done by the city at the expense of the grantee, or by the grantee under the city's supervision and direction at the expense of the grantee. When authorized, such trimming shall be limited to the area required for clear cable passage and shall not include major structural branches which materially alter the appearance and natural growth habits of the tree. The grantee shall be responsible for any and all damages to any tree as a result of trimming or to the land surrounding any tree whether such tree is trimmed or removed, or for damage to property or person caused by such trimming and removal of any tree. Additionally, the grantee shall, at its own cost and expense, at the request of the city, replace all trees or shrubs damaged as a result of any construction or maintenance of the cable system undertaken by the grantee with trees and shrubs of a reasonably comparable size and type, as determined in the sole discretion of the city manager.

(k) Grantee shall remove system from any public street following termination or expiration of franchise. If the use of a part of the cable system is discontinued for any reason for a continuous period of 12 months, or if such cable system or property has been installed in any public way or public place without complying with the requirements of the franchise or the franchise has been terminated, canceled or has expired without renewal, or without having been sold to a qualified new grantee, upon being given 30 days' written notice from the city engineer a grantee shall promptly at its own expense remove from the public ways or public places all such property and poles of such cable system other than that which the city engineer may permit to be abandoned in place. In the event of such removal, a grantee shall promptly restore the public way or other area from which such property has been removed to a condition satisfactory to the city engineer.

(l) Grantee's property may be considered abandoned 60 days after termination or expiration of franchise. Any property of a grantee remaining in place 60 days after the lawful termination or expiration of a franchise shall be, at the option of the city council, considered permanently abandoned unless such property has been sold or conveyed to a new city-approved and -qualified grantee. The city engineer may extend such time as the city, in its sole opinion, deems to be necessary or prudent.

(m) Abandonment in place shall be done at direction of city engineer; ownership of property shall be transferred to city. Any property of a grantee permitted to be abandoned in place shall be abandoned in such a manner as the city engineer shall reasonably prescribe. Upon permanent abandonment of the property of a grantee in place, the grantee shall submit to the city an instrument in writing to be approved by the city attorney transferring to the city the ownership of such property. If such an instrument is not received within 30 days of the abandonment, the property shall automatically become that of the city.

(Ord. No. 8113, § 1(8), 10-23-97)

(a) Type and scope of system. A grantee shall install and maintain the cable system agreed upon in the franchise and this article.

(1) Service to schools, public buildings, etc.

a. A grantee shall provide, without charge, within its service area and any extension thereof, one standard installation and basic cable service to each fire station, public and/or private school, police station, public library, emergency management office and all other publicly owned and occupied buildings and facilities when requested in writing by the city manager. For the purposes of this section, standard installations shall be as defined in subsection 21-37(e)(1).

b. If making cable service available requires more than a standard installation, or if additional outlets are desired in any school or public building, the grantee is entitled to charge the building owner or occupier an amount equal to the reasonable actual labor and material costs incurred by the grantee for the additional facilities and work.

c. Further, the city agrees to take reasonable precautions to prevent the illegal and/or improper use of cable service within public buildings. The grantee shall not be obligated to provide free cable service to any school unless the school agrees to take reasonable precautions to prevent any illegal and/or inappropriate use of cable service within the school.

(2) Emergency alert override system. A grantee shall comply with all requirements of the FCC regarding installation, maintenance and use of an emergency alert system. A grantee shall cooperate with the city in the use and operation of the emergency alert override system. The city shall take reasonable precautions to prevent the improper use of the emergency alert system.

(b) Access channels.

(1) Generally. A grantee shall provide and maintain the number and type of access channels as are set forth in the franchise.

(2) Underutilized access channels to be used by the grantee under rules established by city. Whenever any access channel is utilized less than an average of eight hours per day for six days per week for a continuous period of not less than 12 consecutive weeks, the grantee may utilize the unused access channel capacity; however, no access capacity shall be utilized by the grantee until all other channel capacity on the cable system has been programmed. Programs shown more than twice during the 12-week period, non-locally-produced programming and character generated programming shall not count toward utilization of the access channels.

(3) Additional channels. If each access channel is being used for nonrepetitive locally produced programming (excluding character generated programming) more than 12 hours per day, seven days a week for 12 consecutive weeks, a grantee shall, upon receipt of written notice from the city, make an additional new channel available for the same purpose within 120 days, up to the maximum number of channels specified in the franchise for access use.

(c) Supervision and regulation of franchises. The city manager or his designee may do all things necessary and lawful to supervise, inspect and regulate the construction and operation of cable systems franchised under this article and implement complaint procedures.

(d) Grantee to maintain a local area office. A grantee shall maintain a local area office which shall be open during the business hours stated in the franchise and shall maintain a publicly listed telephone number with a toll-free number and sufficient lines which shall be so operated and staffed to respond to customers in at least five ways:

(1) Accepting payments and resolving billing difficulties;

(2) Giving out and exchanging or accepting return converters;

(3) Scheduling and conducting service or technician calls;

(4) Answering subscriber inquiries; and

(5) Resolving complaints.

The city as well as all subscribers shall be promptly noticed of the location of the office and of any change of address of such office or of telephone numbers. The grantee shall also prepare a promotional notice to familiarize residents with the location of such office, the services available and complaint procedures. This notice is to be given to each new subscriber upon installation of service and is to be distributed at least once per year to all subscribers.

(e) Repair and maintenance crews to be maintained that is capable of responding to subscriber complaints. The grantee shall maintain sufficient repair and maintenance crews capable of responding to subscriber complaints or requests for service in accordance with subscriber service standards described in section 21-40.

(f) Outage log to be maintained showing details of service failure. A grantee shall maintain an outage log showing the date, approximate time, location, duration, estimated number of subscribers affected, type and probable cause of all headend, trunk or distribution failures due to causes other than routine testing or maintenance at reasonable times. A copy of such log shall be filed with the city manager within 15 calendar days of a written request therefor by the city manager and shall be retained by a grantee at its local area office for at least a period of three years.

(g) Planned service interruption. The need for periodic cable service interruptions by the grantee to perform preventive maintenance, repair and reconstruction of the cable system is hereby acknowledged. All such interruptions shall be planned during minimum viewing hours when possible. The grantee shall be sensitive to newsworthy events of general public interest and modify such outage plans to allow maximum subscriber reception of the news of these events.

(h) City can require testing of cable system and report on performance. When there have been repeated complaints made which the grantee has failed to solve to the satisfaction of the city, or when there exists other evidence which in the reasonable judgment of the city manager casts doubt on the reliability or quality of cable service, the city manager shall have the right and authority to compel a grantee to test, analyze and report on the performance of the cable system no more frequently than one time per franchise year. Such tests shall be performed by or under the supervision of a qualified, registered professional engineer or an engineer with proper training and experience as determined by the city. The city shall have the opportunity to observe testing. Such report as well as the qualifications of the engineer responsible for the tests shall be delivered to the city manager no later than 14 days after the city manager formally notifies the grantee and shall include the following information: the nature of the complaints which precipitated the special tests; which cable system components were tested, the equipment used and the procedures employed in such testing; the results of such tests; and the methods in which such complaints were or will be resolved.

(i) City may cause additional tests to be performed by independent professional engineer at cost of grantee. If the technical problems continue to persist following system testing by the grantee in subsection (h) of this section, and the technical problems are within the grantee's control, the city manager may require that additional testing and analysis be conducted by the grantee but supervised by an independent qualified engineer selected by the city. The engineer shall sign all records of special tests and forward to the city manager such records with a report interpreting the results of the tests and recommending actions to be taken by the grantee and the city. The reasonable costs of such expense shall be paid for by the grantee within 30 days after the city submits the engineer's invoice, such costs not to exceed $1,500.00 per year.

(j) Failure to correct technical deficiencies may result in directive from city council. The grantee shall continue, throughout the term of the franchise, to maintain the technical standards and quality of service set forth in this article and in the franchise. Should the city council find by resolution that the grantee has failed to maintain these technical standards and quality of service, or to correct technical deficiencies identified in subsections (h) and (i) of this section, the city council by resolution may specifically enumerate improvements recommended by the engineer and require the grantee to make such improvements. Failure of the grantee to make such improvements within a reasonable period of time to be stated in the resolution will constitute a breach of condition for which a remedy in liquidated damages and/or franchise revocation is applicable.

(k) Performance evaluation sessions may be held every three years. Upon written request by the city manager, a grantee shall cooperatively participate with the city in a performance evaluation session of the grantee, to be held no more often than every three years from the effective date of a franchise.

(l) Written report required of grantee; details outlined. Sixty days following receipt of the written request for a performance evaluation session, the grantee shall submit to the city council or such other entity as may be formed by the city, a written report in reasonable detail covering the significant events related to the grantee's performance or nonperformance of the terms and conditions of its franchise during the period from the submission of the last such report. Such reports shall, if applicable, cover significant events, including, but not limited to, those events related to the following topics:

(1) Compliance with and any modification necessary with respect to the financial commitments required under the franchise;

(2) Compliance with requirements regarding cable system characteristics and technical performance and testing requirements;

(3) Compliance with construction terms, standards and schedules;

(4) A description of the changes made or contemplated to the mix, level and quality of programming the broad categories of video programming or other cable services of the cable system; nothing in this subsection, however, shall imply any city regulatory authority or power of censorship over the content of the programming on the grantee's channels, the community and education access channels or the leased channels;

(5) Compliance with, and any modification necessary with respect to the grantee's privacy protection policies;

(6) A summary of all significant cable service interruptions;

(7) A summary of all significant and representative subscriber complaints and the action taken by the grantee in response thereto;

(8) A summary of relevant developments in the law and regulatory constraints; and

(9) Other events or areas of compliance with the terms of the franchise and/or this article which the city or the grantee may find significant.

(m) City may request additional information and clarification to determine franchise compliance. Within 60 days after receipt of the grantee's report, the city may request additional reasonable and appropriate information on specified topics which the grantee shall supply within 60 days of such request. The city may review the grantee's performance to determine whether the grantee has complied with the terms and conditions of the franchise and shall, following completion of any such review, keep the grantee's report on file. Nothing in this section shall affect the city's remedies provided elsewhere in this article.

(n) Special evaluation session possible at any time. Special evaluation sessions may be held at any time during the term of a franchise at the request of the city or the grantee with a 30-day notice.

(o) Public notification of performance evaluation sessions. All performance evaluation sessions shall be open to the public and announced in a newspaper of general circulation in accordance with the city's legal notice requirements at least ten days but no more than 20 days preceding each session. A grantee shall notify its subscribers of all performance evaluation sessions at least ten days preceding each session by any means the grantee deems reasonable. The city's cost of such notice shall be reimbursed by the grantee within 30 days of receiving an invoice for such cost.

(p) Discussion topics listed. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to, cable service rate structures; franchise fees; liquidated damages; free or discounted services; application of new technologies; system performance; cable service provided; access; programming offered; subscriber complaints; subscriber privacy rights; amendments to this article; judicial and FCC rulings; line extension policies; and grantee or city rules.

(q) City may issue report on adequacy of system performance and require improvements where necessary. Within 60 days after the conclusion of any evaluation session, including the clarification period described, the city may prepare a written report with respect to the adequacy of the grantee's performance in comparison to its obligations under its franchise and this article. If inadequacies are found which result in a violation of any of the material provisions of this article or a franchise, the grantee shall have a minimum of 30 days to respond and propose a plan for implementing any improvement or correction. Additional time for cure may be allowed by the city as appropriate.

(Ord. No. 8113, § 1(9), 10-23-97)

(a) Customer service standards shall be detailed in the franchise and shall conform at least to the standards established by the Federal Communication Commission.

(b) A grantee shall comply with all procedures established cooperatively by the city and the grantee regarding handling of all complaints received directly by the city from city residents regarding the grantee's cable service.

(Ord. No. 8113, § 1(10), 10-23-97)

(a) Annual reports required. The cable operator shall file annually with the city:

(1) A statement of gross revenues prepared by an independent certified public accountant, accounting firm or the cable operator's chief financial officer as required by subsection 21-33(b); and

(2) Within 120 days following the end of each calendar year, an operational report, including, but not limited to, the following information, specific to the city: number of dwelling/commercial units passed, number of equivalent billing units passed in areas within the service area not served by a grantee, number of cable plant miles, number of subscribers and the penetration rate. This report shall be certified as being correct by a responsible representative of the grantee.

(b) Customer service reports required.

(1) A grantee shall submit to the city within 30 days of a written request of the city manager a reasonable, statistical summary of the operations of the cable system and a detailed report showing compliance with customer service standards.

(2) The statistical summary shall include, but not be limited to: the number of dwelling/commercial units passed; the number of basic cable service subscribers; the number of subscribers for each additional cable service tier; the penetration rates for basic cable service and other cable service tiers; the number of premium units purchased by subscribers and the number of cable plant miles.

(3) The compliance report for customer service standards shall be developed in consultation between the city manager and a grantee and shall provide the detail necessary to monitor a grantee's compliance with these standards. Such report may include, but not be limited to:

a. A summary of system outages and down time;

b. Percent of telephone calls that were answered within 30 seconds during the past quarter;

c. Percentage of time when all incoming trunk lines were in a busy condition during the past quarter;

d. Number of repair service requests received in the past quarter;

e. Breakdown by cause of problem (e.g., subscriber equipment, drop, converter, system, etc.); and

f. Breakdown by time of response or resolution (e.g., within 24 hours or same day, etc.)

(4) Upon breach of a customer service standard and failure of a grantee to remedy such breach upon 30 days' prior written notice from the city, the city may invoke the liquidated damages provision of the franchise without prejudice to any other remedy otherwise available to the city.

(c) Grantee shall file current maps showing location of equipment installed. The grantee shall file with the city engineer, within 90 days of any change, strand or trench maps or sets of maps drawn to scale showing the location of the cable system in place in the public ways and other public places of the city. The grantee shall also file the same maps within ten days of receiving a written request from the city engineer.

(d) Ownership reports required. The cable operator shall file with the city not later than 30 calendar days after the receipt of a written request from the city manager two copies of the following supplemental information:

(1) If a nonprofit corporation, a list of all current directors or trustees of record. If a public corporation, a list of all shareholders who individually or as a concerted group hold ten percent or more of the voting stock of the corporation;

(2) A current list of all the cable operator's officers and directors, including addresses and telephone numbers;

(3) The names, business addresses and business and emergency phone numbers of the cable system manager and engineer; and

(4) If the cable operator is a subsidiary, a copy of the annual report of the parent firm.

(e) Public availability of reports. Such reports as required under this article shall be available to the public in the office of the city clerk during normal business hours, unless a grantee claims such information is confidential, privileged or proprietary and perfects the right to claim the same pursuant to the procedures established in a franchise.

(f) Correspondence. A grantee shall not apply for any waivers, exceptions or declaratory rulings from the Federal Communications Commission or any other federal or state regulatory agency which would materially and directly affect the franchise granted by the city to the grantee without providing the city manager with copies of all filings within ten days of the date that such filings were mailed or otherwise sent to the FCC or other regulatory agency.

(g) City's access to grantee's records. The city shall have access to and may request copies, at no expense to the city, of all of the grantee's records reasonably necessary to ensure compliance with the franchise or this article, such access to be made available during normal business hours at the grantee's local area office within 30 days of the grantee's receipt of a written request from the city for such records. All books and records shall be made available for a period of at least three years. The grantee shall not be required to provide subscriber information in violation of section 631 of the cable act. Notwithstanding anything contained herein to the contrary, the grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature.

(h) False entries. Any false entry in the books of account or records of a grantee or false statement in the reports to the city knowingly made by a grantee shall constitute the breach of a material provision of this article and the franchise.

(Ord. No. 8113, § 1(11), 10-23-97)

(a) City reserves right to regulate rates. To the fullest extent provided by federal and state law, the city reserves the right to regulate and may regulate a grantee's fees, rates and/or other charges for cable service.

(b) Current rate schedule to be filed with the city; 30 days' notice required prior to rate change. A grantee, for information purposes and for the city to ensure nondiscrimination, shall provide the city with a complete schedule of all current cable service charges, and shall give at least 30 days' prior notice to the city and to all affected subscribers of any pricing changes or additional charges, excluding temporary marketing and sales discounts or offers.

(c) Grantee to furnish service to each person in franchise area making request for service. The grantee shall furnish and maintain cable services to each person within the service area who makes a bona fide request to receive any cable service that is based upon the requirements of this article. If cable service is denied, the grantee will give written response to the requestor of the cable service, if so requested. Nothing in a franchise shall limit the right of the grantee to deny service to any household or individual who has negative credit or service history with the grantee, which may include nonpayment of bills or theft or damage to the grantee's equipment or who has threatened or assaulted employees of the grantee in the course of their employment.

(d) Charges must be applied on nondiscriminatory basis. All charges must be applied on a nondiscriminatory basis. A grantee may, however, conduct promotional campaigns in which rates are discounted or waived, and may offer bulk rate discounts for multiple unit dwellings, hotels, motels and similar institutions.

(Ord. No. 8113, § 1(12), 10-23-97)

(a) The franchise renewal process of the city shall be in accordance with section 626 of the cable act, and with all other applicable state and federal laws.

(b) Notwithstanding anything to the contrary set forth in this section, the grantee and the city may at any time during the term of the then current franchise, while affording the public appropriate notice and opportunity to comment, agree to undertake and finalize informal negotiations regarding renewal of the then current franchise and the city may grant a renewal thereof. The grantee and the city consider the terms set forth in this section to be consistent with the express provisions of section 626 of the cable act.

(c) No provisions in this article or any franchise shall be deemed or construed to require the city council to renew a franchise.

(d) The length of term of a franchise shall be determined in the franchise; however, such term shall not exceed 15 years from the date the franchise is accepted by the grantee by written agreement with the city or from the expiration of a grantee's previously existing franchise, whichever is later, unless terminated earlier in accordance with this article or the franchise.

(Ord. No. 8113, § 1(13), 10-23-97)

(a) Grantee required to file an irrevocable letter of credit. Within 30 days after the effective date of a franchise, the grantee shall deposit with the city's director of finance an irrevocable letter of credit in a form satisfactory to the city attorney and the director of finance in an amount of $100,000.00, or of such other amount as specified in a franchise, issued by a federally insured commercial lending institution with a credit rating of BAA or BBB+ or higher. The grantee shall maintain the irrevocable letter of credit at all times throughout the term of the franchise in the amount set forth in this subsection or as set forth in the franchise. Any draw from the letter of credit shall cause the grantee within 30 days from receipt of notice of the draw by the city to replenish the letter of credit to the amount required by this article. The letter of credit shall be used to assure the faithful performance by the grantee of all provisions of the franchise and this article and to ensure compliance with all orders, permits and directions of any agency, commission, board, department, division or office of the city having jurisdiction over the grantee's acts or defaults under a franchise and this article, and the payment by the grantee of any penalties, liquidated damages, claims, liens, franchise fees, taxes or other fees due to the city which arise by reason of the construction, operation or maintenance of the cable system, including cost of removal or abandonment of any property of the grantee.

(b) Letter of credit may be drawn upon by city manager after following due process.

(1) The letter of credit may be drawn upon by the city by presentation of a draft at sight on the lending institution, accompanied by a written certificate signed by the city manager certifying the grantee has failed to comply with the franchise and/or this article, stating the nature of the noncompliance and stating the amount being withdrawn. Examples of the nature of the noncompliance for drawing upon the letter of credit include, but are not limited to, the following:

a. Failure of the grantee to pay to the city any franchise fees, taxes, liens or other fees within ten days of receiving written notice of delinquency;

b. Failure of the grantee to pay to the city, after ten days' written notice, any amounts due and owing the city by reason of the indemnity provision of subsection 21-36(b)(2);

c. Failure of the grantee to pay to the city any liquidated damages due and owing to the city pursuant to the franchise and/or this article within 30 days of receiving written notice from the city;

d. Failure of the grantee to pay to the city any other payment as required by the franchise, within ten days of receiving written notice of delinquency;

e. Failure of the grantee to pay to the city within ten working days after receipt of written notice from the city, any damages, claims, costs or expenses which the city has been compelled to pay or incur by the reason of any material act or default by the grantee;

f. Failure to comply within 30 days after receipt of written notice from the city with any material provisions of the franchise or this article which the city reasonably determines can be remedied by an expenditure of amount from the letter or other instrument.

(2) In the event of such noncompliance, the city may order the withdrawal of the amount thereof from the letter or other instrument for payment to the city, provided that, prior to each such withdrawal, the grantee shall be afforded an opportunity to cure any of such failures within 30 days after written notice from the city that the withdrawal is to be made; or if such cure cannot be reasonably accomplished within such 30 days, then the grantee shall have a reasonable time to cure as determined by the city, provided that the grantee commences such cure within such 30 days and diligently pursues such cure to completion.

(c) Letter of credit shall be replenished to original amount following any draw down. The grantee agrees that if the city at any time draws upon the letter of credit, the amount of available credit shall, within 30 days of the date the grantee receives notice of the draw by the city, be increased to the extent necessary to replenish that portion of the available credit exhausted by the honoring of the city's draft. If the existing letter of credit cannot be replenished, a new letter of credit shall be issued in the amount specified in this section or as stated in the franchise.

(d) City's rights with respect to letter of credit are in addition to other rights. The rights reserved to the city with respect to the letter of credit are in addition to all other rights of the city, whether reserved by a franchise, this article or authorized by law; and no action or proceeding against the letter of credit shall affect any other right the city may have.

(Ord. No. 8113, § 1(14), 10-23-97)

(a) Liquidated damages to be paid by grantee for certain delays or nonperformance. The grantee shall comply with all requirements in its franchise with the city regarding liquidated damages related to delays or nonperformance.

(b) Procedures established to assure grantee of due process and opportunity to cure problem before damages assessed. If the city manager, following prior reasonable notice to a grantee to cure any problem that might result in liquidated damages, concludes that a grantee is, in fact, liable for liquidated damages pursuant to the franchise, he shall issue to a grantee by certified mail a notice of intention to assess liquidated damages. The notice shall set forth the basis of the assessment and shall inform the grantee that liquidated damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the city council and the city council rules that the violation has been corrected, or that an extension of the time or other relief should be granted. If the grantee desires a hearing before the city council, it shall send a written notice of appeal by certified mail to the city manager within ten days of receiving the notice of intention to assess liquidated damages. After the hearing, if the city council sustains in whole or in part the city manager's assessment of liquidated damages, the city manager may at any time thereafter draw upon the letter of credit required by the franchise. Unless the city council indicates to the contrary, such liquidated damages shall be assessed beginning with the date on which the grantee receives the notice of intention to assess liquidated damages and continuing thereafter until such time as the violation ceases, as reasonably determined by the city manager.

(Ord. No. 8113, § 1(15), 10-23-97)

(a) Franchise may be terminated for material breach of terms and conditions. In addition to all other rights and powers retained by the city, the city reserves the right to terminate the franchise and all rights and privileges of the grantee in the event of a material breach of its terms and conditions. Material provisions shall include all labeled as such and any other, which, under all the facts and circumstances indicated, is a significant provision of the franchise or this article. A material breach by a grantee may include, but shall not be limited to, the following:

(1) Violation of any material and applicable provision of this article or the franchise or any other material rule, order, regulation or determination of the city made pursuant to a franchise;

(2) Attempt to evade any material and applicable provisions of this article and/or the franchise or practice any fraud or deceit upon the city or subscribers;

(3) Failure to begin or complete cable system construction or reconstruction as provided under the franchise;

(4) Failure to maintain insurance, bonds and the letter of credit required by the applicable provisions of this article or the franchise;

(5) Failure to restore cable service after 48 consecutive hours of interrupted cable service, except when there is just cause and when approval of such interruption is obtained from the city;

(6) Substantial failure to provide the financial information required by this article and/or the franchise;

(7) Substantial failure to satisfy the requirements regarding cable system characteristics or repeated failure to meet the technical performance standards specified in the franchise;

(8) Abandonment of the cable system in whole or material part without the prior written consent of the city;

(9) Substantial failure to supply the access channels and other support and any related services, equipment and facilities as required in the franchise;

(10) Substantial and repeated failure to comply with the customer service standards and requirements set forth in this article and the franchise;

(11) Any material written misrepresentation, intentionally made by or on behalf of a grantee in its proposal to obtain a franchise or in connection with the negotiation or renegotiating of the franchise or any amendment or other modification to a franchise, to the extent that any such misrepresentation was relied upon by the city;

(12) The grantee's becoming insolvent, unable or unwilling to pay its debts, or upon listing of an order for relief in favor of the grantee in a bankruptcy proceeding to the extent such insolvency, failure to pay debts or bankruptcy materially interferes with the operation of the cable system in service area; and/or

(13) At any time where a pattern of similar actions by a grantee has led to the repeated assessment of liquidated damages for the same.

(b) Violations that occur which are not the fault of the grantee shall not constitute a material breach. The provisions of subsection (a) of this section shall not constitute a material breach if the violation occurs but is without fault of the grantee or occurs as a result of circumstance beyond its control. A grantee shall not be excused by mere economic hardship nor any misfeasance or malfeasance of its shareholders, partners, directors, officers or employees.

(c) Procedures outlined leading to possible termination of franchise. The city shall make a written demand that a grantee comply with any provision, rule, order or determination under or pursuant to this article or the franchise. The demand shall set forth the exact nature of the alleged noncompliance. If the violation, breach, failure, refusal or negligence by a grantee continues for a period of 30 days following such written demand without written proof that corrective action has been taken or is being actively and expeditiously pursued, and the violation is of a material franchise provision as detailed, in part, in subsection (a) of this section, the city may place the issue of termination of the franchise before the city council. The city shall cause to be served upon the grantee, at least 20 days prior to the day of such city council meeting, a written notice of intent to request such termination and the time and place of the meeting. Public notice shall be given of the meeting and the issue which the city council is to consider.

(d) City council shall hear and consider issues and determine if a violation has occurred. The city council shall:

(1) Hear and consider the issue of whether a material violation of this article or the franchise has occurred;

(2) Hear any person interested therein, including the grantee; and

(3) Determine, in its discretion, whether or not any such material violation by the grantee has occurred.

Any hearing by the city which concerns the assessment of substantial penalties or liquidated damages against a grantee, or the revocation of a franchise, will be conducted according to the state Administrative Procedures Act, V.T.C.A., Government Code § 2001.001 et seq. Specifically, the grantee will be provided with substantial due process, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the testimony of other persons as permitted by law and to question witnesses. A complete verbatim record and transcript shall be made of such proceeding and the cost of such record and transcript shall be borne by the grantee.

(e) City council may declare franchise terminated if compliance does not occur within specified period. If the city council shall determine the material violation by a grantee was the fault of the grantee and within its control, the city council may, by ordinance, declare that the franchise of the grantee be terminated, unless there is compliance within such period as the city council may fix. Such decision to terminate a franchise shall be made in writing and transmitted to the grantee within five days of the city council's action.

(f) Right to appeal. If a grantee is adversely affected by a decision of the city, it may appeal the action within 60 days of the city council's action to any court of competent jurisdiction. For the purposes of any action occurring in accordance with subsections (d) and (e) of this section, the parties stipulate that the record of the administrative proceeding and the decision of the city shall constitute the entire factual record.

(Ord. No. 8113, § 1(16), 10-23-97)

(a) Any franchise granted shall, at the option of city, cease and terminate 120 days after the appointment of a receiver or trustee to take over and conduct the business of the grantee, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of such 120 days, or unless:

(1) Such receivers or trustees shall have within 120 days, after their election or appointment fully complied with all the terms and provisions of this article and the franchise, and the receivers or trustees within such 120 days shall have remedied all defaults under the franchise; and

(2) Such receivers or trustees shall have within 120 days executed a franchise duly approved by the court having jurisdiction on the premise whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise, including applicable provisions of this article.

(b) In the case of a foreclosure or other involuntary sale of the plant, property or equipment of the grantee, or any part thereof, the grantee shall notify the city manager of such foreclosure or involuntary sale. The city may then serve notice of termination upon the grantee and to purchaser at such sale, in which event the franchise and rights and privileges of the grantee shall cease and terminate within 30 days after service of such notice unless:

(1) The city has approved the transfer of the franchise as provided for in this article; and

(2) Such successful purchaser shall have covenanted and agreed with the city to assume and be bound by all the terms and conditions of the franchise.

(Ord. No. 8113, § 1(17), 10-23-97)

(a) Any provision of this article may be waived, at the sole discretion of the city by resolution or ordinance of the city council.

(b) A grantee may submit a written request for a waiver of the requirements of this article to the city council at any time during the franchise term. Such request for a waiver, at the sole discretion of the city council, may be set for a public hearing, and a decision shall be made within 120 days following the submission.

(c) The city council may authorize the economic, technical or legal evaluation of the grantee's waiver request, and the grantee shall be required to reimburse the city for any reasonable expenditure incurred by the city in connection with such evaluation.

(d) This section is enacted solely for the convenience and benefit of the city and shall not be construed in such a manner as to create any right or entitlement for the grantee.

(Ord. No. 8113, § 1(18), 10-23-97)

Whenever this article or a franchise sets forth any time for any act to be performed by or on behalf of the grantee, such time shall be deemed to be of the essence, and any failure of the grantee to perform within the time allotted shall always be sufficient grounds for the city to invoke liquidated damages or initiate procedures leading toward the revocation of a franchise.

(Ord. No. 8113, § 1(19), 10-23-97)

Alternative mounting structure means a manmade tree, clock, tower, church steeple, bell tower, utility pole, light standard, identification pylon, flagpole, or similar structure, designed to support and camouflage or conceal the presence of telecommunications antennas.

Antenna means a structure or device used to collect or radiate electromagnetic waves, including directional antennas, such as panels, wireless cable and satellite dishes, and omni-directional antennas such as whips, but not including satellite earth stations.

Antenna array means an arrangement of antennas and its supporting structure.

Co-location means a signal telecommunications tower and/or site used by more than one telecommunications service provider.

Commission means the city's planning and zoning commission as presently constituted, or any successor commission.

Dish antenna means a parabolic or bowl-shaped device that receives and or transmits signals in a specific directional pattern.

EIA-222 means Electronics Industries Association Standard 222, "Structural Standards for Steel Antenna Towers and Antennas Support Structures."

Electric transmission tower means a self-supporting structure in excess of 50 feet in height designed to support high voltage electric lines. This does not include local utility or distribution poles (with or without transformers) designed to provide electric service to individual customers.

FAA means the Federal Aviation Administration as presently constituted, or any successor federal agency.

FCC means the Federal Communications Commission as presently constituted, or any successor federal agency.

Guyed tower means any telecommunications tower supported in whole or in part by cables anchored to the ground.

Identification pylon means a permanent ground-mounted sign consisting solely of a single monolithic structure used to identify a development.

Monopole tower means a self-supporting telecommunications tower which consists of a single vertical pole fixed into the ground and/or attached to a foundation.

Panel antenna means an antenna which receives and/or transmits signals in a directional pattern.

Self-supporting tower means a telecommunications tower which consists of an open network of metal braces forming a tower which is usually triangular or square in cross-section.

Stealth antenna means a telecommunications antenna that is effectively camouflaged or concealed from view.

Structure means an object including a mobile object constructed or installed by man, including, but not limited to, buildings, poles, water towers, cranes, smokestacks, earth formations and overhead transmission lines.

Telecommunications means the transmission, between or among points specified by the user of audio and/or visual information of the user's choosing without change in the form or content of information as sent and received.

Telecommunications antenna means an antenna used to provide a telecommunications service. This excludes lighting rods, amateur radio antennas less than 50 feet in height and whip antennas less than four inches in diameter and less than ten feet in height.

Telecommunication service means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

Telecommunications tower means a self-supporting or guyed structure more than 20 feet in height, built primarily to support one or more telecommunications antennas.

Tower height means the distance measured from grade to the highest point of any and all components of the structures, including antennas, hazard lighting and other appurtenance, if any.

Whip antenna means an omni-directional dipole antenna cylindrical shape which is no more than six inches in diameter.

(Ord. No. 8287, § 3, 5-28-98; Ord. No. 9621, § 6, 9-11-03)

To facilitate co-location and coordination of a telecommunication site, the director of planning and community development shall, within 30 days of the effective date of this ordinance, notify the providers of telecommunication services, as that term is defined by federal law, of the enactment of this ordinance. The providers shall within 90 days of the date of such notice, provide the city with their respective master antenna plans. The plans shall include detailed maps, showing the locations and characteristics of all telecommunications towers and antennas servicing any portion of the city and indicating coverage areas for current and, to the extent possible, future telecommunication towers and antennas. Providers shall also provide the city with updates to the above documents within 90 days of their creation.

(Ord. No. 8287, § 3, 5-28-98)

(a) In the event the use of any wireless communication facility, which would include telecommunications tower or other antenna support structure, has been discontinued for a period of 365 days, the antenna support structure shall be deemed to be abandoned. Determination of the date of abandonment shall be made by the chief building official who shall have the right to request documentation from the owner/operator regarding the issue of usage.

(b) Upon the determination of abandonment, the owner/operator of the antenna support structure shall remove the antenna support structure within 90 days of receipt of notice from the chief building official notifying the owner/operator of such abandonment. If the antenna support structure is not removed within the 90-day period, the chief building official may cause it to be removed at the owner's expense.

(Ord. No. 8287, § 3, 5-28-98)

Any person who desires to erect or utilize a telecommunication facility and who wishes to present evidence that such entity would be limited by the current regulations of the city dealing with zoning and land use may apply for such use under this article. The city council shall, upon a showing that stricter application of the regulations would prohibit or have the effect of prohibiting personal wireless service, as defined by federal law, modify the subject regulations, consistent with the spirit and intent of this article and second to the extent necessary to prevent the prohibition.

(Ord. No. 8287, § 3, 5-28-98)

(a) Any person violating any section of this article shall constitute an offense affecting safety, zoning and/or public health and, upon conviction, is punishable as provided in section 1-14.

(b) In addition to the penalties provided in subsection (a) above, any violation of this article is hereby declared to be a nuisance. In addition to any other relief to which the city may be entitled, the city attorney is authorized to file suit in any court of competent jurisdiction to enjoin any person from violating or causing to be violated any of the sections of this article.

(Ord. No. 8287, § 3, 5-28-98)

(a) Applicable federal and state standards. All telecommunication towers and antennas shall be erected and operated in compliance with current FCC and FAA rules and regulations and all other applicable federal, state, and local standards.

(b) Structural standards. Telecommunication tower structure must conform to the most current revision of EIA-222 Standards.

(c) Co-location. Towers shall be designed and built to accommodate a minimum of two cellular or personal communication service providers if the towers are 75 feet or more in height. The owner of the tower must certify to the city that the tower is available for use by other telecommunications service providers on a reasonable nondiscriminatory basis.

(d) Fencing. Security fencing enclosing the base of a tower shall be by a wrought iron or steel chain link fence with evergreen hedge, or a masonry wall, each not less than six feet in height. The exterior of equipment buildings and/or metal equipment cabinets visible from an SFE, SF1, SF2, MF1, MF2, MF3, UN, NSC, LC or ACE zoning district, residential use, or public right-of-way must have a neutral aggregate finish or be painted to reflect the color and character of adjoining structures or blend with adjacent landscaping and other surroundings.

(e) Setbacks. All telecommunications towers as well as guys and guy anchors shall be located within the buildable area of the lot and set back a minimum of 20 feet from any property line. Telecommunications towers in excess of 400 feet in height shall be set back a minimum of 2600 feet from the right-of-way of all controlled access federal and state roadways designated as freeways to provide unobstructed flight paths for helicopters.

(f) Signage. Except as otherwise permitted in this article, no signage letter, symbols, images or trademarks in excess of 200 square inches shall be placed on or affixed to any part of a telecommunications tower, antenna, antenna array equipment building, or security fencing other than as required by the FCC regulations or other applicable law.

(g) Lighting. Except as otherwise permitted in this article, no signal lights or illumination of any kind shall be permitted on or directed toward any tower unless required by the FCC, the FAA or other appropriate public authority.

(Ord. No. 8287, § 3, 5-28-98; Ord. No. 11,866, § 9, 2-23-12; Ord. No. 13,191, § 3, 5-12-16)

(a) Historic/cultural. Except for compatible alternative mounting structures approved by the city council that effectively camouflage or conceal the presence of telecommunications antennas, telecommunications facilities should not be located on or within 300 feet of property included in a national or local historic district or designated scenic corridor. In addition, said facilities should, whenever possible, be located so as to ensure that historic or culturally significant vistas, and landscapes are protected and that the views of and vistas from architecturally and/or historically significant structures are not impaired or diminished.

(b) Residential. Except as otherwise provided in this article, telecommunications towers are not permitted in any SFE, SF1, SF2, MF1, MF2, MF3, UN, NSC, LC or ACE zoning district and must be at least:

(1) Two hundred fifty feet from any property, which is within a SFE, SF1, SF2, MF1, MF2, MF3, UN, NSC, LC or ACE zoning district or is used for residential purposes, regardless of the zoning district if the tower height is 75 feet or less; or

(2) A distance from any property which is within a SFE, SF1, SF2, MF1, MF2, MF3, UN, NSC, LC or ACE zoning district or is used for residential purposes, regardless of the zoning district, calculated as follows:

a. Two hundred fifty feet; plus

b. Five feet per each foot of tower height or portion thereof over 75 feet.

(c) Fall zone. A tower shall be constructed so as to minimize the potential safety hazards and located in such a manner that if the structure should fall along its longest dimension, it will remain within the property boundaries and avoid habitable structures, public streets, utility lines and other antennas or towers.

(d) Tower spacing. Any new telecommunication tower in excess of 180 feet in height must be located a minimum of one mile from any existing tower in excess of 180 feet in height.

(e) Towers permitted by right. Freestanding monopole telecommunication towers 85 feet or less in height are permitted in the MU, GC, LI and HI zoning districts; provided that all of the applicable standards of this article are satisfied.

(f) Towers requiring special use permits. Except as otherwise provided in this article, telecommunication towers in excess of 50 feet in height and monopole towers in excess of 85 feet in height are permitted in the MU, GC, LI and HI zoning districts with a special use permit.

(g) Telecommunication towers erected to replace existing poles. Telecommunication towers erected to replace existing poles are permitted in all zoning districts if:

(1) The pole replaced is a functioning utility pole or light standard within a utility easement or public right-of-way, recreation facility light pole or telecommunication tower;

(2) Replacement tower height, including antennae array, does not exceed:

a. The height of the original utility, light standard or recreation facility pole by more than ten feet; or

b. The height of the original telecommunication tower and antennae array.

(3) The pole replaced does not obstruct a public sidewalk, public alley or other public right-of-way; and

(4) Pole appearance and function, except for antennae, are not significantly altered.

(Ord. No. 8287, § 3, 5-28-98; Ord. No. 11,866, § 10, 2-23-12; Ord. No. 13,191, § 4, 5-12-16)

(a) New alternative mounting structures 100 feet or less in height are permitted by right in the MU, GC, LI and HI zoning districts.

(b) New alternative mounting structures in excess of 100 feet in height are permitted in the MU, GC, LI and HI zoning districts with a special use permit.

(c) All new alternative mounting structures located in a SFE, SF1, SF2, MF1, MF2, MF3, UN, NSC, LC or ACE zoning district shall require a special use permit.

(d) Alternative mounting structures must be similar in color, scale and character to adjoining buildings or structures or blend with the landscaping and other surroundings immediately adjacent to them so as to generally avoid the creation of unique visual objects that stand out in the environment.

(Ord. No. 8287, § 3, 5-28-98; Ord. No. 11,866, § 11, 2-23-12; Ord. No. 13,191, § 5, 5-12-16)

The purpose of this section is to promote public safety and maintain order and harmony within the city's zoning districts by restricting the size and location of telecommunication antennas. The object is to avoid the creation of visual distractions, prevent obstructions to the view of pedestrians and motorist on public thoroughfares and to ensure the structural integrity of supporting structures.

(1) Whip and panel antenna mounting standards.

a. Individual telecommunications antennas are allowed on existing electric utility poles, light standards, and telecommunication towers in excess of 40 feet in height, provided that the total length of any antenna does not exceed 15 percent of the height of the structure. The height of a telecommunications tower is determined by the highest point of any and all components of the structure, including antennas.

b. Telecommunication antennas and arrays are allowed by right on existing electric transmission towers.

c. Existing structures in excess of 50 feet in height may, as a matter of right, be rebuilt, if necessary, to support or contain a new antenna, provided that the new structure complies with subsection 21-112(g).

d. Panel antennas, which do not extend above the structures, or whip antennas 15 feet or less in height, are permitted on conforming and properly permitted ground sign structures.

e. Building mounted panel antennas are permitted on nonresidential buildings and multifamily dwellings in all zoning districts, provided that they are mounted flush with the exterior of the building and that they do not project above the roof line nor more than 30 inches from the surface of the building to which they are attached. The antenna's appearance shall be such that its color and texture blends with the surrounding surface of the building.

f. Whip antennas are permitted on nonresidential buildings and multifamily dwellings in all zoning districts, provided that the total length of the whip antennas, regardless of mounting method or location, does not exceed 15 feet of the height of the building.

g. Only one building/roof mounted antenna support structure, less than 100 square feet in area, is permitted per 5,000 square feet of building floor area.

(2) Dish antenna mounting standards.

a. Dish antennas shall not be permitted in any front setback area or sideyard setback adjacent to any roadway.

b. Ground mounted dish antennas in excess of five feet in height shall be screened from roadways and adjacent property by a minimum six-foot high screening fence, evergreen hedge, or masonry wall.

c. Dish antennas in excess of ten feet in height or more than three meters in diameter shall not be permitted in any SFE, SF1, SF2, MF1, MF2, MF3, UN, NSC, LC or ACE zoning district.

d. Building/roof mounted dish antennas one meter or less in diameter are permitted in all zoning districts.

e. Building/roof mounted dish antennas two meters or less in diameter are permitted on all buildings in excess of 5,000 square feet of building floor area in the MU, GC, LI and HI zoning districts.

f. Only one building/roof mounted dish antenna, two meters or less in diameter, is permitted per 5,000 square feet of building floor area on nonresidential buildings and on multifamily dwellings in the SFE, SF1, SF2, MF1, MF2, MF3, UN, NSC, LC or ACE zoning districts.

g. Building/roof mounted dish antennas in excess of two meters in diameter may be permitted on buildings in excess of 100,000 square feet of building floor area in the MU, GC, LI and HI zoning districts with a special use permit.

h. Building/roof mounted dish antennas in excess of one meter in diameter in SFE, SF1, SF2, MF1, MF2, MF3, UN, NSC, LC or ACE zoning districts shall be painted to have an appearance that blends with the building on which they are located or be located so that they are not visible from any adjacent roadway.

i. Building/roof mounted dish antennas in excess of two meters in diameter, in MU zoning districts shall be painted or screened with enclosures so as to have an appearance that blends with the building on which they are located or be located so that they are not visible from any adjacent roadway.

(3) Structural certification. The chief building official shall be provided with an engineer's certification that the structure will support and not be adversely affected by the proposed antenna and associated equipment.

(Ord. No. 8287, § 3, 5-28-98; Ord. No. 11,866, § 12, 2-23-12; Ord. No. 13,191, § 6, 5-12-16)

Towers and antennas erected or leased by a public agency for police, fire, EMS, 911 or other similar public emergency communications shall be exempted from requirements of this division.

(Ord. No. 8287, § 3, 5-28-98)

Distances in this article shall be measured along a single straight line between the center of the tower base and the nearest point on any property line of a historic property, scenic corridor or SFE, SF1, SF2, MF1, MF2, MF3, UN, NSC, LC or ACE zoned property or residential use.

(Ord. No. 8287, § 3, 5-28-98; Ord. No. 11,866, § 13, 2-23-12; Ord. No. 13,191, § 7, 5-12-16)

The summary table in this section provides a tabular summary of the telecommunication facilities allowed in the various zoning and historic districts as well as the scenic corridors of the city. The table is intended for reference only and does not necessary reflect all of the regulations that may apply. If a conflict occurs between the text of this article and the summary table, the text shall control.

(1) Permitted by right. Facilities identified with a "P" are permitted by right and shall be permitted in the corresponding district subject to all other applicable standards of this Code.

(2) Permitted with special use permit. Facilities identified with a "SUP" are permitted by right, but shall be permitted in the corresponding district only in compliance with the supplementary use standards referenced in the final column of the table and subject to all other applicable standards of this article and Code requirements.

(3) Not permitted. Uses not identified in a particular district column of the use table as permitted by right are not allowed in such district unless otherwise expressly permitted by other sections of this article.

(4) Conditions. The final column of the summary table contains references to the standards applicable to the telecommunication facility type in one or more districts or corridors.

Key:

* Nonresidential and multifamily structures only.

** Nonresidential structures in excess of 5,000 square feet of floor area.

*** Nonresidential structures in excess of 100,000 square feet of floor area.

(Ord. No. 8287, § 3, 5-28-98; Ord. No. 11,866, § 14, 2-23-12; Ord. No. 13,191, § 8, 5-12-16)

This division provides the city council the opportunity to deny or to conditionally approve those uses for which special use permits are required. These uses generally have unusual nuisance characteristics or are of a public or semipublic character often essential or desirable for the general convenience and welfare of the community. Because, however, of the nature of the use, the importance of the use's relationship to the comprehensive plan, or possible adverse impact on neighboring properties of the use, review, evaluation, and exercise of planning judgment relative to the location and site plan of the proposed use are required.

(Ord. No. 8287, § 3, 5-28-98)

A building permit shall not be issued for any use to be located in a zoning district which permits that use only as a special use unless a special use permit has first been issued in accordance with the provisions of this division.

(Ord. No. 8287, § 3, 5-28-98)

(a) All applications for a special use permit for a telecommunications tower, antenna, or other facilities to provide a telecommunications service shall be filed with the director of planning and community development. The application shall be accompanied by a site plan which, along with the application, will become a part of the special use permit, if approved. The accompanying site plan shall provide the following information:

(1) Data describing all processes and activities involved with the proposed use;

(2) Boundaries of the area covered by the site plan;

(3) The location of each existing and proposed building and structure in the area covered by the site plan and the number of stories, height, roofline, gross floor area of any such building or structure;

(4) The location of existing drainageways, and significant natural features;

(5) Proposed landscaping and screening buffers;

(6) The location and dimensions of all curb cuts, public and private streets, parking and loading areas, pedestrian walks, lighting facilities, and outside trash storage facilities; and

(7) The location, height and type of each wall, fence, and all other types of screening.

(b) Unless an exception is granted by the city council, telecommunications facilities requiring a special use permit, including towers and related equipment buildings, shall be located on a platted lot.

(c) When a special use permit is required to comply with the provisions of this article and when the technical information provided by the applicant is beyond the technical capacity of the city staff to review the applicant, in addition to the usual application fee, shall reimburse the city for the actual cost to the city for the services of a technical expert to review the application and/or information supplement, up to a maximum of $5,000.00 dollars.

(d) Prior to leasing or purchasing facilities, the telecommunication service provider is encouraged to meet with the director of planning and community development or his/her designee to determine if the location will require a special use permit or other approvals, and to review the merits of potential locations.

(Ord. No. 8287, § 3, 5-28-98)

After determining that the application submitted under this article is complete, the director of planning and community development shall prepare a staff report, which may include a recommendation for approval or disapproval based upon the criteria in section 21-128. A copy of the staff report on a proposed special use permit shall be mailed to the applicant at least five days prior to the public hearing on the application.

(Ord. No. 8287, § 3, 5-28-98)

The notification and public hearing process for a special use permit or revocation thereof shall be the same as set forth in division 2 of the Unified Land Development Code.

(Ord. No. 8287, § 3, 5-28-98; Ord. No. 11,866, § 15, 2-23-12)

The commission shall, after due notice, conduct a public hearing on the application and shall consider the staff report submitted as provided in section 21-124. At the public hearing, the commission shall consider the application, staff report, the relevant support materials and public testimony given at the public hearing. After the close of the public hearing, the commission shall prepare and deliver a report and recommendation to the city council to approve or disapprove the proposed special use permit based upon the criteria set forth in section 21-128.

(Ord. No. 8287, § 3, 5-28-98)

After receiving the final report of the commission, the city council shall, after due notice, conduct a public hearing on the proposed special use permit. At the public hearing the city council shall consider the application, the staff report and the relevant support materials and the public testimony given at the public hearing. After the close of the public hearing, the city council shall approve or disapprove or approve with conditions the special use permit. Such decision shall be in writing and supported by substantial evidence.

(Ord. No. 8287, § 3, 5-28-98)

A special use permit shall be issued only if all of the following conditions have been found:

(1) That the specific use will be compatible with and not injurious to the use and enjoyment of other property, nor significantly diminish or impair property values within the immediate vicinity in any material way;

(2) That the establishment of the specific use will not impede the normal and orderly development and improvement of surrounding property;

(3) That adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided;

(4) That adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration;

(5) That there are sufficient landscaping, screening, setbacks and other land use measures to ensure harmony and compatibility with adjacent property; and

(6) That the proposed use is in accordance with the comprehensive plan and generally consistent with this Code.

(Ord. No. 8287, § 3, 5-28-98)

In authorizing a special use permit, the city council may impose additional reasonable conditions necessary to protect the public interest and welfare of the community.

(Ord. No. 8287, § 3, 5-28-98)

A special use permit issued under this division shall expire one year after its date of issuance if construction or use authorized thereunder is not substantially under way as determined by the chief building official prior to the expiration of the one-year period; provided, however, if, prior to the expiration of such one-year period, the owner of property to which a special use permit applies requests an extension thereof, the city council may approve such extension for not more than one additional year.

(Ord. No. 8287, § 3, 5-28-98)

A special use permit may be revoked or modified, after notice and hearing, for either of the following reasons:

(1) The special use permit was obtained or extended by fraud or deception; or

(2) That one or more of the conditions imposed by the permit has not been met or has been violated.

(Ord. No. 8287, § 3, 5-28-98)

The procedure for amendment of a special use permit shall be the same as for a new application, provided, however, that the city manager may approve minor variations from the original permit which do not result in any increase in external impact on adjacent properties or neighborhoods.

(Ord. No. 8287, § 3, 5-28-98)

A processing fee of $300.00 shall be required for the processing of each special use permit request. Until the processing fee is paid in full, no action shall be taken on any application or appeal.

(Ord. No. 8287, § 3, 5-28-98)

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Abandon and its derivatives mean the facilities have been left in an unused or non-functioning condition for more than 90 consecutive days.

Antenna means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

Applicable codes mean the most current building, electrical, mechanical, plumbing and fire codes codified in chapter 7 of the city's development code and amended therein.

Cable service is defined in 47 U.S.C. § 522(6).

Cable service provider means a person who provides cable service and has been issued a state-issued certificate of franchise authority from the Public Utility Commission of Texas or its successor under V.T.C.A., Utilities Code ch. 66.

Certificated telecommunications provider has the meaning as set forth in V.T.C.A., Local Government Code § 283.002(2), for which the PUC has issued a certificate of operating authority or service provider certificate of operating authority to provide local exchange telephone service or voice service.

City-owned utility pole means a utility pole owned or operated by a city-owned utility, as defined in V.T.C.A. Utilities Code § 11.003, and located in a public right-of-way.

Collocate and collocation mean the installation, mounting, maintenance, modification, operation, or replacement of network nodes in a public right-of-way on or adjacent to a pole.

Decorative pole means a streetlight pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than temporary holiday or special event attachments, have been placed or are permitted to be placed pursuant to this article.

Design district means and includes that property which is the arts, cultural and entertainment (ACE) zoning district.

Design manual means the design manual for siting and criteria for the installation of wireless micro network nodes, network nodes, node support poles and related ground equipment pursuant to V.T.C.A., Local Government Code ch. 284.

Director means the director of engineering.

Electric cooperative has the meaning assigned by V.T.C.A., Utilities Code § 11.003.

Electric utility has the meaning assigned by V.T.C.A., Utilities Code § 31.002.

Facilities means a pole, conduit, pipeline, line, wire, equipment, antenna, structure, or facility of any kind whatsoever, and includes utility poles, transport facilities, micro network nodes, network nodes, node support poles, and related ground equipment.

Historic district means an area that is zoned or otherwise designated as a historic district under city ordinance or state or federal law.

Law means common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance.

Macro tower means a guyed or self-supported pole or monopole that supports or is capable of supporting antennas and greater than the height parameters prescribed by V.T.C.A., Local Government Code § 284.103 and that supports or is capable of supporting antennas.

Micro network node means a network node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 11 inches.

Network node means equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term includes:

(1) Equipment associated with wireless communications;

(2) A radio transceiver, an antenna, a battery-only backup power supply, and comparable equipment, regardless of technological configuration; and

(3) Coaxial or fiber-optic cable that is immediately adjacent to and directly associated with a particular collocation.

The term does not include an electric generator, a pole or a macro tower.

Network provider means:

(1) A wireless service provider; or

(2) A person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider:

a. Network notes; or

b. Node support poles or any other structure that supports or is capable of supporting a network node.

Node support pole means a pole installed by a network provider for the primary purpose of supporting a network node.

Park means an area that is designated by the city as a public park for the purpose of recreational activity.

Permit means a written authorization for the use of the public right-of-way or collocation on a service pole (as to network providers) before a user of the public right-of-way may perform an action or initiate, continue or complete a project in the right-of-way. A "permit" includes all permits required by this article and applicable codes adopted by the city.

Pole means a service pole, city-owned utility pole, node support pole, or utility pole.

Private easement means an easement or other real property right that is only for the benefit of the grantor and grantee and their successors and assigns.

Public right-of-way or right-of-way means the area on, below, or above a public roadway, street, highway, alley, sidewalk, waterway, or utility easement in which the city has an interest. The term does not include a private easement or the airwaves above a public right-of-way with regard to wireless telecommunications.

Public property means public rights-of-way, bridges, tunnels, and similar property in which the city holds any property interest or exercises any rights of management or control.

Public right-of-way rate means the annual rental charge paid by a network provider to the city related to the construction, maintenance, or operation of network nodes within the public right-of-way, as provided in section 2-595(6) of this Code.

Public utility commission or PUC means the state public utility commission.

Service pole means a pole owned or operated by the city and located in the public right-of-way, including:

(1) A pole that supports traffic control functions;

(2) A structure for signage;

(3) A pole that supports lighting, other than a decorative pole; and

(4) A pole or similar structure owned or operated by the city and supporting only network nodes.

Sidewalk means that portion of a public right-of-way improved and designated for and ordinarily used for pedestrian travel or pedestrian and bicycle travel.

Street means that portion of a public right-of-way improved and designated for or ordinarily used for vehicular traffic.

Substantially similar means that:

(1) The new or upgraded network node, including the antenna or other equipment element, will not be more than ten percent larger than the existing network node, provided that the increase may not result in the network node exceeding the size limitation provided in the design manual adopted and thereafter amended pursuant to section 21-160; and

(2) The new or upgraded pole will not be more than ten percent higher than the existing pole, provided that the provided that the increase may not result in the pole exceeding the height limitations provided in the design manual adopted and thereafter amended pursuant to section 21-160.

The determination of whether a replacement or upgrade is substantially similar under [subsections] (1) and (2) is made by measuring from the dimensions of the network node or node support pole, as provided in the design manual.

Telecommunications provider has the meaning assigned by V.T.C.A., Utilities Code § 51.002.

Telephone cooperative has the meaning assigned by V.T.C.A., Utilities Code § 162.003.

Transport facility means each transmission path physically within a public right-of-way, extending with a physical line from a network node directly to the network, for the purpose of providing backhaul for network nodes.

Utility pole means a pole that provides:

(1) Electric distribution with a voltage rating of not more than 34.5 kilovolts; or

(2) Services of a telecommunications provider, as defined by V.T.C.A., Utilities Code § 51.002.

Video service has the meaning as set forth in V.T.C.A., Utilities Code § 66.002(10).

Video service provider has the meaning as set forth in V.T.C.A., Utilities Code § 66.002(11), for which the PUC has issued a state-issued certificate of franchise authority to provide video service.

Voice service has the meaning as set forth in V.T.C.A., Utilities Code § 283.002.

Wireless service means any service, using licensed or unlicensed wireless spectrum, including the use of Wi-Fi, whether at a fixed location or mobile, provided to the public using a network node.

Wireless service provider means a person that provides wireless service to the public.

(Ord. No. 13,558, § 3, 8-24-17)

No appurtenances or attachments, other than temporary holiday or special event attachments, are permitted to be placed on decorative poles.

(Ord. No. 13,558, § 3, 8-24-17)

(a) Insurance. Any person required under this article to obtain the city's consent to make use of the public right-of-way or any person required by this chapter to obtain a permit to perform construction in the public right-of-way must, during the period of the use or work, obtain and keep in effect insurance against claims for injuries to persons or damages to property arising from or in connection with the performance of the work, comprehensive general liability and property damage insurance with minimum limits of $500,000.00 for the injury or the death of any one person, $1,000,000.00 for each occurrence, and $100,000.00 for each occurrence of damage to or destruction of property.

(b) Indemnity.

(1) Certificated telecommunications providers. The indemnity provisions of V.T.C.A., Local Government Code § 283.057(a) and (b), apply to certificated telecommunications providers using or accessing public rights-of-way; provided that the following definitions will be applicable to such section:

a. Municipality shall mean the city; and

b. Parties shall mean the city and the certificate telecommunications provider.

(2) Cable service providers and video service providers. The indemnity provisions of V.T.C.A., Utilities Code § 66.012(a) and (b) apply to cable service providers and video service providers using or accessing public rights-of-way, provided that the following definitions will be applicable to such section:

a. Municipality shall mean the city;

b. Holder of state-issued certificate of franchise authority shall mean a cable service provider or a video service provider; and

c. Parties shall mean and refer to the city and cable service provider or cable video service provider, as applicable.

(3) Network providers. Pursuant to V.T.C.A., Local Government Code § 284.302, the indemnification provisions of V.T.C.A., Local Government Code § 283.057(a) and (b) apply to network providers using or accessing public rights-of-way, provided that the following definitions will be applicable to such section:

a. Municipality shall mean the city;

b. Certificated telecommunications provider shall mean a network provider.

c. Parties shall mean the city and the network provider.

(4) Electric and gas franchises. The indemnity provisions of the franchise ordinance applicable to each utility shall apply.

(5) Other water, wastewater, electrical, natural gas, or other services not authorized by city ordinance. The contract shall contain the following indemnify language:

The user of the public right-of-way must indemnify and hold the city and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney's fees and costs of defense), proceedings, actions, demands, causes of action, liability, and suits of any kind and nature, including personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought that is found by a court of competent jurisdiction to be caused solely by the negligent act, error, or omission of the user of the public right-of-way, any agent, officer, director, representative, employee, affiliate, or subcontractor of the user of the public right-of-way, or its respective officers, agents, employees, directors, or representatives, while installing, repairing, or maintaining facilities in a public right-of-way. The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the city, its officers, employees, contractors, or subcontractors. If a user of the public right-of-way and the city are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the city under state law and without waiving any defenses of the city and user of the public right-of-way under state law. This section is solely for the benefit of the city and the user of the public right-of-way and does not create or grant any rights, contractual or otherwise, to any other person or entity.

(Ord. No. 13,558, § 3, 8-24-17)

(a) Within 60 days following written notice from the city, any person owning facilities located on, below, or above the public right-of-way, must, as directed by the city, and at the person's sole cost, temporarily or permanently remove, relocate, change or alter the position of any of their facilities that are in the public right-of-way whenever the city determines that the removal, relocation, change or alteration is necessary for the construction, repair, maintenance, installation, completion, relocations, or widening of any city improvement, facilities, or equipment, on, below or above the public right-of-way. Relocation of a micro network node, network node, node support pole, and related ground equipment must comply with the provisions of this article regarding spacing and other limitations.

(b) If a person does not remove or relocate its facilities as required by (a) of this section, the city may remove the facilities at the person's sole cost and expense, without further notice to the person and within 30 days following receipt of an invoice from the city, the person shall reimburse the city for its reasonable expenses incurred in the removal or relocation of the facilities.

(c) If the director determines that there is imminent danger to the public health, safety and welfare, the director may immediately disconnect, remove or relocate a person's facilities on, below or above the public right-of-way at the person's sole cost. The person shall reimburse the city for its reasonable expenses incurred in the removal or relocation of the facilities within 30 days following receipt of an invoice from the city.

(d) If a person owning a facility in the public right-of-way removes or relocates the facility at its discretion, the person shall notify the city in writing not less than ten business days prior to the removal or relocation. A relocation must comply with the provisions of this article. The person shall obtain all permits required for the removal or relocation of the person's facilities prior to the removal or relocation.

(e) If a person does not remove or relocate its facilities as required by (a) and (b) of this article, the city may remove the facilities at the person's sole cost and expense, without further notice to the person and within 30 days following issuance of an invoice from the city, the person shall reimburse the city for its reasonable expenses incurred in the removal or relocation of the facilities.

(Ord. No. 13,558, § 3, 8-24-17)

(a) It is unlawful for any person to knowingly construct, place, maintain, or operate any line, wire, pipe, conduit, equipment, antenna, pole, structure, or facility in a public right-of-way or other public property for the purpose of providing water, wastewater, electrical, natural gas, or other unauthorized service to any person, without first receiving the consent of the city council. The city council may, as a condition of its giving its consent, require the person requesting such use to enter into a written agreement with the city containing the conditions under which the use of the public right-of-way will be permitted.

(b) Except in cases of emergency, it is unlawful for any person to knowingly dig up, break, cut, excavate, drill or tunnel in or on any public right-of-way without first obtaining a right-of-way work permit from the city.

(c) It is unlawful for any person to knowingly install or place any facilities in a public right-of-way or make use of the public right-of-way for any purpose not authorized by state law or the city, as applicable, in accordance with city ordinances.

(d) It is unlawful for any person doing work under a permit to violate a provision of the permit.

(e) It is unlawful for any person to continue work under a permit after receiving a stop work order or receiving notice that a stop work order has been issued or to resume the work or activity until the director withdraws the stop work order.

(f) Each unauthorized use of the public right-of-way or other public property is a separate offense and each day a violation continues is a separate offense.

(g) Persons committing unlawful acts or otherwise violating this article shall be punished, upon conviction, as provided in section 1-14.

(Ord. No. 13,558, § 3, 8-24-17)

(a) Gas and electric franchises. To the extent of a conflict between this article and a gas or electric franchise existing on the date of this article, the gas or electric franchise ordinance shall control.

(b) Other utilities and telecommunications providers. Per V.T.C.A., Local Government Code § 284.252, the provisions of V.T.C.A., Local Government Code ch. 284 do not apply to the attachment of network nodes on poles or other structures owned by investor-owned electric utilities, electric cooperatives, telephone cooperatives, or telecommunications providers, and does not confer any new city authority over those utilities, cooperatives or providers.

(c) Cable service or video service providers. Per V.T.C.A., Local Government Code § 284.253, approval for the installation, placement, maintenance or operation of a network node or transport facility does not authorize:

(1) Cable services or video service to be provided without compliance with V.T.C.A., Utilities Code ch. 66; or

(2) Information service as defined by 47 U.S.C. § 153(24) to be provided in the public right-of-way; or

(3) Telecommunications service as defined by 47 U.S.C. § 153(53) to be provided in the public right-of-way.

(d) Wireless service providers. A wireless service provider, or its affiliate, that holds a cable or video franchise under V.T.C.A., Utilities Code ch. 66, is not required to obtain additional authorization or to pay any fees based on the provider's provision of wireless service over its network nodes.

(Ord. No. 13,558, § 3, 8-24-17)

Subject to the provisions of V.T.C.A. Local Government Code ch. 284, this article, the design manual, and other applicable ordinances, a network provider may use the public rights-of-way without the need for a special use permit, other zoning review, or further land use approval to:

(1) Construct, modify, maintain, operate, relocate and remove a network node or node support pole;

(2) Modify or replace a utility pole or node support pole; and

(3) Collocate on a pole.

(Ord. No. 13,558, § 3, 8-24-17)

(a) Prohibited areas.

(1) A network provider may not install a node support pole in a public right-of-way that is adjacent to a street or thoroughfare that is:

a. Not more than 50 feet wide; and

b. Adjacent to a single-family residential lot or other multifamily residences or undeveloped land that is designated for residential use by zoning or deed restrictions.

(2) A network provider may not install a node support pole in a public right-of-way in a park.

(b) Historic districts. A network provider must obtain advance written approval from the city manager before collocating network nodes or installing node support poles in historic districts. As a condition for approval, the network providers must provide design or concealment measures for the new network node or node support pole, as provided in the design manual. The network provider should explore the feasibility of using camouflage measures to improve the aesthetics of the network node, node support pole, or related ground equipment or any portion of the network node, node support pole or ground equipment to minimize the impact to the aesthetics in the historic district. Nothing in this subsection limits the city's authority to enforce historic preservation zoning regulations consistent with the preservation of local zoning authority under 47 U.S.C. Section 332(c)(7), the requirements for facility modifications under 47 U.S.C. Section 1455(a), or the National Historic Preservation Act of 1966 (16. U.S.C. Section 470 et seq.) and the regulations adopted to implement these laws.

(c) Design districts. A network provider must obtain advance written approval from the city manager before collocating new network nodes or installing new node support poles in a design district. As a condition for approval of new network nodes or new node support poles in a design district, the city requires reasonable design or concealment measures for the new network nodes or new node support poles. Therefore, any request for installations in a design district, must be accompanied with concealment measures in the permit applications. The city requests that a network provider explore the feasibility of using certain camouflage measures to improve the aesthetics of the network nodes, node support poles, or related ground equipment, or any portion of the nodes, poles, or equipment, to minimize the impact to the aesthetics on decorative poles in a design district.

(d) Undergrounding areas. A network provider, in relation to installation for which the city has approved a permit application, must comply with undergrounding requirements, including the city's ordinances, zoning regulations, state law, private deed restrictions, and other public or private restrictions that prohibit installing above-ground structures in a public right-of-way without first obtaining zoning or land use approval. Areas of the city may be designated from time to time by the city as underground areas in accordance with filed plats, or conversions of overhead to underground areas, as may be allowed by law. This subsection does not prohibit a network provider from replacing an existing structure.

(Ord. No. 13,558, § 3, 8-24-17)

(a) Adoption of design manual. The city council adopts the Design Manual for Siting and Criteria for the Installation of Wireless Micro Network Nodes, Network Nodes, Node Support Poles and Related Ground Equipment pursuant to V.T.C.A., Local Government Code ch. 284. A copy of the design manual is available in the city clerk's office.

(b) Revisions to design manual. The director may from time-to-time add to, delete from, or revise the design manual without council action if the revision:

(1) Does not conflict with a provision of state law or this article;

(2) Is for the purpose of providing detailed or technical specifications, requirements, or procedures applicable to the matters regulated under this article, but does not implement new substantive regulations or requirements not addressed in this article;

(3) Is adopted in compliance with written procedures, as approved by the city manager, that provide for public notice, an opportunity for public comment, and consideration of any public comments prior to adoption; and

(4) Is approved by the city manager.

(c) Compliance with design manual. A network provider must comply with any applicable provisions of the design manual as a condition of approval of any application, permit, or other approval required under this article or the design manual.

(Ord. No. 13,558, § 3, 8-24-17)

A network provider that wants to connect a network node to the network using the public right-of-way may:

(1) Install its own transport facilities if it obtains a permit under this article and pays the public right-of-way rates in section 2-595(6); or

(2) Obtain transport service from a person that is paying municipal fees to occupy the public right-of-way that are the equivalent of not less than $28.00 per node per month.

(Ord. No. 13,558, § 3, 8-24-17)

(a) Fees. The network provider must pay the fees and rates established in section 2-595 of this Code.

(b) Notice of annual increase in public right-of-way rate. The city will provide written notice to the network provider of a new annual public right-of-way rate, adjusted as provided by section 2-595(6) of this Code, which shall apply to the first payment due to the city on or after 60 days following the notice.

(Ord. No. 13,558, § 3, 8-24-17)

(a) Permits required by applicable codes. In addition to the right-of-way work permit in division 3, the network provider must obtain all other permits required by applicable codes and pay the fees established in section 2-595 of this Code.

(b) Consolidated permits. The network provider may file a consolidated application for the installation or collocation of not more than 30 network nodes and receive a single permit for a permit required by this article or an applicable code. As examples, a network provider may receive one right-of-way work permit for the installation or collocation of not more than 30 network nodes and, if an electrical permit is required, also, a network provider may receive one electrical permit for the installation or collocation of not more than 30 network nodes.

(c) Issuance of permits. The permit(s) will be issued if the application complies with the provisions of V.T.C.A., Local Government Code ch. 284, this article, applicable codes, and the design manual.

(Ord. No. 13,558, § 3, 8-24-17)

The review process for a permit application for installation of transport facilities, micro network node, network node, node support pole, and related ground equipment shall conform to the following, as required by V.T.C.A., Local Government Code § 284.154:

(1) The city will (i) determine whether an application for a network node or node support pole is complete, (ii) specifically identify the missing information, and (iii) notify the applicant of that determination within 30 days after receiving the application.

(2) The city will (i) determine whether an application for a transport facility is complete within ten days after receiving the application, (ii) specifically identify the missing information, and (iii) notify the applicant of that determination within ten days after receiving the application.

(3) An application for a permit is deemed approved if the city does not approve or deny the application for:

a. A node support pole within 150 days after the date the city receives a complete application.

b. A network node within 60 days after the date the city receives a complete application.

c. A transport facility within 21 days after the date the city receives a completed application.

(4) An application may not be denied unless the work to be performed under the permit does not comply with applicable codes.

(5) If an application is denied, the city will document the basis for the denial, including the specific applicable code provisions or other rules, regulations or other law on which the denial is based. Documentation of the denial will be sent to the applicant by electronic mail on or before the date the city denies the application.

(6) Within 30 days after the date the city denies the application, the applicant may cure the deficiencies identified in the denial documentation and resubmit the application without paying an additional application fee, other than a fee for actual costs incurred by the city.

(7) The city will approve or deny a revised completed application after a denial within 90 days after the date the city receives the completed revised application.

The city's review will be limited to the deficiencies cited m the denial documentation.

(Ord. No. 13,558, § 3, 8-24-17)

In addition to the requirements in this division 2, a network provider must comply with the provisions of division 3 of this article.

(Ord. No. 13,558, § 3, 8-24-17)

(a) Required. Except in cases of emergency, a right-of-way work permit must be obtained from the city before performing any work in the public right-of-way that requires digging up, breaking up, cutting, excavating, drilling, or tunneling in or upon any public right-of-way. If emergency work in the public right-of-way that would require a permit is necessary and the city permit office is closed, the person doing the work must apply for a right-of-way permit the next business day after the emergency work.

(b) Exceptions to permit requirement. The permit requirements of this section do not apply to:

(1) The repair, replacement, or maintenance of an existing telephone line, natural gas line, electric line, cable television or telecommunications line, irrigation line, or other existing pipe, cable, or facility lawfully located in the public right-of-way, if the repair, replacement, or maintenance does not require the digging up, breaking up, cutting, excavation, drilling or tunneling under or the removal, modification, or excavation of a public street, sidewalk, water or sewer line, or other city-owned improvement. This subsection does not apply to routine maintenance of network providers;

(2) A network provider's routine maintenance of micro network nodes, network nodes, node support poles and related ground equipment that does not require excavation or closing of sidewalk or vehicular lanes in a public right-of-way;

(3) Replacing or upgrading a network node or pole with a node or pole that is substantially similar in size or smaller and that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way, but only if:

a. The replacement or upgrade does not include replacement of an existing node support pole; and

b. The replacement or upgrade does not defeat existing concealment elements of a node support pole;

(4) The installation, placement, maintenance, operation, or replacement of micro network nodes that are strung on cables between existing poles or node support poles, in compliance with the National Electric Safety Code;

(5) The repair, replacement, or maintenance of existing trees, shrubs, flowers, grass, vegetation, berms, decorative landscaping, or watering systems that are lawfully located in the public right-way, if the repair, replacement, or maintenance does not require the digging up, breaking up, cutting, excavation, drilling or tunneling under, or the removal, modification, or excavation, of a public street, sidewalk, water or sewer line, or other city-owned improvement;

(6) The repair, replacement, or maintenance of signs, or other ornamental features or materials denoting the entrance to a neighborhood or subdivision that are lawfully located in a public right-of-way, if the repair, replacement, or maintenance does not require the digging up, breaking up, cutting, excavation, drilling or tunneling under, or the removal, modification, or excavation of, a public street, sidewalk, water or sewer line, or other city-owned improvement;

(7) Any work performed for the city under a contract with the city;

(8) Any work required to install a sign on a public right-of-way if the applicant has received a sign permit from the city and has complied with the requirements of this article; or

(9) The placement or maintenance of trees, shrubs, irrigation systems, or other landscaping materials or equipment placed in the right-of-way of a residential lot at the direction of the owner or person in control of the lot.

(Ord. No. 13,558, § 3, 8-24-17)

(a) A completed application for a permit must be submitted to the city on a city form, accompanied by the applicable fee.

(b) In addition to other requirements in this article, the application for transport facilities, micro network node, network node, node support pole, and related ground equipment must include:

(1) Construction and engineering drawings and information to confirm that the network provider will comply with the design manual and applicable codes;

(2) A certification that the proposed network node will be placed into active commercial service by or for the network provider not later than 60 days after the date the construction and final testing of the network is completed;

(3) A certification that the network node complies with applicable regulations of the Federal Communications Commission;

(4) Information related to the network providers' use of the public right-of-way to ensure compliance with V.T.C.A., Local Government Code, ch. 284, applicable codes, this article, and the design manual; and

(5) Concealment measures for collocations of network nodes or installations of node support poles in a historic district or on a decorative pole with the city manager's advance written approval for such collocation or installation.

(c) Applications must include construction and engineering drawings and information that the director determines is reasonably necessary to administer this article and to protect the public and public property, to the extent not inconsistent with law;

(d) The permit must contain the name, address, and telephone number of the person performing the work, the location of the work, and any other information designated by the director. The permit, other than permits for network nodes, node support poles, and related equipment, may also contain special conditions the director determines are necessary to insure compliance with this article, applicable codes, or to protect the public and public property.

(e) The permit holder must keep the permit posted at a visible place at the work site and make it available for inspection upon the request of any city employee.

(f) A permit issued under this article is valid for the time period specified by the director, based on the estimated time to complete the work. Upon the written request of the permit holder, the director may grant additional time to complete the work under the permit.

(g) A network provider must begin the installation for which a permit is issued within six months after the date of issuance of the permit and diligently pursue the installation to completion. The city may grant a longer time to complete the installation or grant reasonable extensions of time as requested by the network provider.

(Ord. No. 13,558, § 3, 8-24-17)

(a) If a person violates a provision of this article, the director may issue a written stop work order to the violator directing any work or activity authorized to be done under a permit to cease until the violation is corrected. Upon receiving a stop work order, the permit holder must immediately cause all work authorized under the permit to stop, but may take steps necessary to secure the site.

(b) The director may revoke a permit for a violation of this article. To revoke a permit, the director must send or deliver written notice of a violation to the permit holder ordering the violation to be corrected within a specified time. If the permit holder fails to correct the violation as directed, the director may revoke the permit by giving notice to the permit holder in writing.

(c) The appeal must be submitted in writing to the city manager within 72 hours of the action being appealed. The city manager will promptly review the facts and issue a written determination.

(d) The revocation and appeal provisions in this section govern over any other conflicting provision in this Code.

(Ord. No. 13,558, § 3, 8-24-17)

Any person performing any construction or other work in the public right-of-way, whether under a permit issued under this article or otherwise, must comply with the following requirements:

(1) Specifications. All excavations, alterations, backfill, repairs, and other work must be made in conformance with any written specifications or requirements adopted by the city. The director may allow modifications of a specification if unusual circumstances are present, the modifications would comply with the spirit and intent of the specification, and the modification would not adversely affect the public safety or interest.

(2) Boring and encasing. If the director determines it is impractical to excavate within a street, all pipelines, conduits, or other crossings must be bored, tunneled, or drilled under the paved section, and, if required by the director, the crossings must be encased in a manner approved by the director.

(3) Damage to city streets. Any type of ditching equipment used on city streets must be equipped with street pads. All damage done to public right-of-way and other public property during the work must be repaired by the permit holder to city specifications. If the permit holder fails to make the repairs, the director may make the repairs and charge the cost to the permit holder.

(4) Correction of defects. If a permit holder fails to properly restore the surface of the public right-of-way or other public property, abandons the work, or fails to correct a hazardous condition after notice to do so, the director may take any action necessary to restore the right-of-way, complete the work, or correct the hazardous condition at the permit holder's expense.

(5) Bonds. For good cause, and if necessary to protect the health, safety, and welfare of the public, the director may require as a condition to the issuance of a right-of-way work permit or before work begins under the permit, that the applicant or permit holder post a bond to insure the repair of streets or the completion of the proposed work or to insure compliance with any other requirement of this article.

(6) Debris on public rights-of-way. During the work, the public right-of-way must be kept clean of excessive rubbish, earth, mud, rock, and other debris, to the satisfaction of the director.

(7) Traffic safety. All work in a public right-of-way or adjacent to a street must be done with barricades, traffic cones, lights, flares, signs, flagmen, and other traffic control devices as specified in the latest edition of the manual for uniform traffic control devices of the state department of transportation. Where the director believes it necessary to avoid traffic congestion or for public safety, he may require work be done only at certain hours during the day or night. Any excavation in the public right-of-way that is a potential danger to the public must be secured against entry in the manner specified by the director.

(Ord. No. 13,558, § 3, 8-24-17)