§ 5.16.390. General conditions upon construction, operation and repair.

A.

The construction, operation, upgrade and repair of cable communications systems shall be performed in compliance with all laws, ordinances, resolutions, departmental rules, regulations, written policies, and practices affecting such system. By way of example, and not limitation, this includes the relevant portions of the Oakland Municipal Code (i.e., the city's zoning ordinance), ordinances, regulations and policies to preserve or protect the public safety, construction standards, regulations for providing notice to persons that may be affected by system construction, and directives governing the time, place and manner in which facilities may be installed in the public rights-of-way. Persons engaged in the construction, operation, upgrade or repair of cable communications systems shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.

B.

A franchise is required before a permit may be issued for work associated with the construction, operation, upgrade or repair of a cable communications system. Any permit issued for such work to a person that does not hold a franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon and in full compliance with the city's demand.

C.

Construction, operation, upgrade or repair of a cable communications system shall not commence until all required permits have been obtained from the proper city officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of the city, any work and/or construction undertaken that is not completed in compliance with the city's requirements, or which is installed without obtaining necessary permits and approvals shall be removed in accordance with the reasonable timeline set forth by the city. A franchisee shall reimburse the city for costs incurred in inspecting construction projects undertaken in the course of major or minor upgrades, installation of fiber optics, minor and major repairs, all other work for which the city requires inspection, and permit review and processing.

D.

Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized. The city may require, except as prohibited by law or the franchise, a person using the public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the public rights-of-way.

E.

To the extent possible, operators of cable communications systems shall use existing poles and conduit. Additional poles may not be installed in the right-of-way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the City Administrator, which permission shall not be unreasonably withheld.

F.

Undergrounding.

1.

Whenever all existing utilities are located underground in an area in the city, every cable communications system operator installing its system in the same area must locate its cable communications system underground.

2.

Whenever the owner of a pole locates or relocates underground within an area of the city, every cable communications system operator in the same area shall concurrently relocate its cables, wires or fiber optics underground.

3.

The City Council may, in its discretion, exempt a particular cable communications system or facility or group of cable communications systems or facilities from the obligation to locate or relocate the cable communications system or facility underground, where a franchisee has demonstrated that relocation is impractical, or where the interest in protecting against visual blight can be protected in another manner.

G.

Any and all public property, or private property that is disturbed or damaged during the construction, operation, upgrade or repair of a cable communications system shall be promptly repaired by the operator. Public property must be restored to a condition as good as before the disturbance or damage occurred. Public rights-of-way must be restored to a condition consistent with city standards that are generally applicable to all persons performing construction or excavation in the public rights-of-way.

H.

Relocation.

1.

A cable communications system operator shall at no cost to the city and by a time specified by city, protect, support, temporarily disconnect, relocate, or remove any of its property when requested by the city by reason of traffic conditions; public safety; public right-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement; or for any other purpose where the work involved would be aided by the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the "public work."

2.

The city shall provide written notice describing where the public work is to be performed at least three weeks prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. The cable communications system operator may seek an extension of the time to perform the work. The city shall not unreasonably deny such an extension where the operator demonstrates it can not perform the work by the deadline even with the exercise of due diligence. Provided that, in an emergency, or where a cable communications system creates or is contributing to an imminent danger to health, safety, or property, the city may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without prior notice, and charge the cable communications system operator for costs incurred; however, city will make reasonable efforts, considering the circumstances, to provide prior notice.

I.

Construction activities of others.

1.

To accommodate the construction, operation, upgrade or repair of the facilities of another person authorized to use the public rights-of-way or public property, a franchisee shall, by a time specified by such person, protect, support, temporarily disconnect, relocate or remove its facilities. The franchisee shall be given written notice describing where the construction, operation or repair is to be performed at least fifteen (15) days prior to the time by which its work must be completed. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the cable communications system that is being requested to move was not properly installed, the reasonable cost of the same shall be borne by the person requesting the protection, support, temporary disconnection, removal, or relocation and at no charge to the city, even if the city makes the request for such action. In cases where the requesting person is required under this Section 5.16.390(I)(1) to bear the cost of relaying, relocation or temporary removal, a franchisee may require the person to agree, before the work is performed, to pay the reasonable actual cost of the work. If the franchisee does so, it must provide an estimate of the cost of the work and support for that estimate.

2.

A cable communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than fifteen (15) days advance notice to arrange for such temporary wire changes. The expense of such temporary removal or raising or lowering of wires shall be paid in advance by the person requesting the same.

J.

Abandonment.

1.

A cable communications system operator may abandon any property in place in the public rights-of-way or upon public property upon written notice to the city. However, if, within ninety (90) days of the receipt of written notice of abandonment, the city determines, that the safety, appearance, functioning or use of the public right-of-way or public property and facilities in the public right-of-way or on public property will be adversely affected, the property must be removed by a date specified by the city. In specifying a date for removal, the city shall take into account the amount of work to be performed.

2.

A cable communications system operator that abandons its property must, upon request, transfer ownership of the property to the city at no cost, and execute necessary quitclaim deeds provided that nothing in the preceding sentence prevents a cable communications system operator from bringing an action in a court of competent jurisdiction if it believes that the cable communications system was not abandoned. Whether or not ownership is transferred, the operator must indemnify the city against future costs associated with mitigating or eliminating any hazard associated with the abandoned property.

K.

Every cable communications system shall be subject to inspection and testing by the city. Each operator must timely and fully respond to requests for information regarding its system and plans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired.

L.

Each operator of a cable communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall locate its facilities for the city at no charge.

M.

At least ninety (90) days prior to commencing construction, each cable communications system operator shall provide the city a construction plan for any initial cable communications system construction, operation or repair or for any substantial rebuild, upgrade or extension of its cable communications system, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected. The construction plans and timetables shall be reviewed by the city. The city acknowledges that certain portions of the construction plan may be tentative. The cable communications system operator shall provide additional information requested by the city within thirty (30) days of receipt of the request, to the extent such information is available. During construction, notice of changes to the construction plans and/or timetables must be provided to the city forty-eight (48) hours in advance. To the extent that any portion of such plan is tentative, franchisee shall provide the city with an update reasonably in advance of initiating such construction and repair.

N.

Unless otherwise specified in a franchise, upon request of the city and subject to the terms of the franchise, every cable communications system shall be required to interconnect, temporarily, with every other cable communications system within the city, on fair and reasonable terms, for the purpose of providing access to PEG programming.

O.

Upon any request given within one hundred eighty (180) days from and after effective date of the ordinance awarding the franchise or franchise renewal, the franchisee shall make available for the city's review all contracts which it may have with all public utility companies, whereby franchisee is granted any right to use any of the property, equipment or facilities of such utility or utilities in the conduct of any operations pursuant to the franchise or franchise renewal awarded to said franchisee.

(Ord. 12729 § 1 (part), 2006)