§ 5.17.400. General requirements.

A.

The construction, operation, upgrade and repair of a state franchise holder's network 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 (e.g., the city's zoning regulations), 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 a state franchise holder's network 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 state franchise or a local franchise is required before a permit may be issued for work associated with the construction, operation, upgrade or repair of a network. 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 state franchise holder's network 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 state franchise holder 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.

The City Administrator shall either approve or deny a state franchise holder's application for any permit within sixty (60) days of receiving a completed permit application from the state franchise holder. An application for a permit shall not be complete until the applicant has complied with applicable laws and regulations, including but not limited to, all applicable requirements of Division 13 of the California Public Resources Code section 21000 et seq. (the California Environmental Quality Act).

E.

If the City Administrator denies a state franchise holder's application for a permit, the City Administrator shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.

F.

A state franchise holder that has been denied a permit by final decision of the City Administrator may appeal the denial to the City Council whose decision shall be final. Upon receiving a notice of appeal, the City Council shall take one of the following actions:

1.

Affirm the action of the City Administrator without a hearing; or

2.

Refer the matter back to the City Administrator for further review with or without instructions.

G.

Interference with the use of the public rights-of-way by others must be minimized. The city may require, except as prohibited by law, 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.

H.

To the extent possible, state franchise holders 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.

I.

Undergrounding. Whenever all existing utilities are located underground in an area in the city, the installation of the network of every state franchise holder shall conform to and be governed by the Oakland Municipal Code, Subsection F of Section 5.16.390 of Chapter 5.16 entitled "Cable Systems and Open Video Systems."

J.

Any and all public or private property that is disturbed or damaged during the construction, operation, upgrade or repair of a state franchise holder's network shall be promptly repaired by the holder. 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.

K.

Relocation. A state franchise holder 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 rights-of-way construction and repair (including regrading, resurfacing or widening); vacating public rights-of-way; 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 state franchise holder's network. Collectively, such matters are referred to below as the "public work."

2.

The city shall provide written notice to the state franchise holder describing where the public work is to be performed at least three weeks prior to the deadline by which the state franchise holder must protect, support, temporarily disconnect, relocate or remove its facilities. The state franchise holder may seek an extension of the time to perform the work. The city shall not unreasonably deny such an extension where the state franchise holder 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 state franchise holder's network 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 network without prior notice, and charge the state franchise holder for costs incurred; however, the city will make reasonable efforts, considering the circumstances, to provide prior notice.

L.

Construction activities of others. 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 state franchise holder shall, by a time specified by such person, protect, support, temporarily disconnect, relocate or remove its facilities. The state franchise holder 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 the work will commence. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the network 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 subsection 5.17.400(L)(1) to bear the cost of relaying, relocation or temporary removal, a state franchise holder may require the person to agree, before the work is performed, to pay the reasonable actual cost of the work. If the state franchise holder does so, it must provide an estimate of the cost of the work and support for that estimate.

2.

A state franchise holder 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 state franchise holder 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.

M.

Abandonment.

1.

A state franchise holder 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 rights-of- way or the public property and facilities in the public rights-of-way or on the 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 state franchise holder 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 state franchise holder from bringing an action in a court of competent jurisdiction if it believes that the network was not abandoned. Whether or not ownership is transferred, the state franchise holder must indemnify the city against future costs associated with mitigating or eliminating any hazard associated with the abandoned property.

N.

Every network shall be subject to inspection by the city. Each state franchise holder 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.

O.

Each state franchise holder 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 state franchise holder shall locate its facilities for the city at no charge.

P.

At least ninety (90) days prior to commencing construction, each state franchise holder shall provide the city a construction plan for any initial construction, operation or repair or for any substantial rebuild, upgrade or extension of its network, 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 state franchise holder 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, the state franchise holder shall provide the city with an update reasonably in advance of initiating such construction and repair.

(Ord. 12819 § 1 (part), 2007)