§ 42-84. Construction obligations.

(a)

A provider is subject to the reasonable regulation of the city to manage its public rights-of-way pursuant to the city's rights as a custodian of public property under state and federal laws. A provider is subject to city ordinances and requirements and federal and state laws and regulations in connection with the construction, expansion, reconstruction, maintenance or repair of facilities in the public rights-of-way.

(b)

At the city's request, a provider shall furnish the city accurate and complete information relating to the construction, reconstruction, removal, maintenance, operation and repair of facilities performed by the provider in the public rights-of-way.

(c)

The construction, expansion, reconstruction, excavation, use, maintenance and operation of a provider's facilities within the public rights-of-way are subject to applicable city requirements.

(1)

A provider may be required to place certain facilities within the public rights-of-way underground according to applicable city requirements absent a compelling demonstration by the provider that, in any specific instance, this requirement is not reasonable or feasible nor is it equally applicable to other similar users of the public rights-of-way.

(2)

A provider shall perform operations, excavations and other construction in the public rights-of-way in accordance with all applicable city requirements, including the obligation to use trenchless technology whenever commercially economical and practical and consistent with obligations on other similar users of the public rights-of-way. The city shall waive the requirement of trenchless technology if it determines that the field conditions warrant the waiver, based upon information provided to the city by the provider. All excavations and other construction in the public rights-of-way shall be conducted so as to minimize interference with the use of public and private property. A provider shall follow all reasonable construction directions given by the city in order to minimize any such interference.

(3)

A provider must obtain a permit, as reasonably required by applicable city codes, prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the provider's facilities. Once a permit is issued, the provider shall give to the city a minimum of 48-hours' notice (which could be at the time of the issuance of the permit) prior to undertaking any of the activities of its network listed in this section in, on or under the public rights-of-way. The failure of the provider to request and obtain a permit from the city prior to performing any of the activities in this section in, on or over any public rights-of-way, except in any emergency as provided for in subsection (10) of this section, will subject the provider to a stop work order from the city and enforcement action pursuant to this Code. If the provider fails to act upon any permit within 90 calendar days of issuance, the permit shall become invalid, and the provider will be required to obtain another permit.

(4)

When a provider completes construction, expansion, reconstruction, removal, excavation or other work, the provider shall promptly restore the rights-of-way in accordance with applicable city requirements. A provider shall replace and properly relay and repair the surface, base, irrigation system and landscape treatment of any public rights-of-way that may be excavated or damaged by reason of the erection, construction, maintenance, or repair of the provider's facilities within 30 calendar days after completion of the work in accordance with existing standards of the city in effect at the time of the work.

(5)

Upon failure of a provider to perform any such repair or replacement work, and five days after written notice has been given by the city to the provider, the city may repair such portion of the public rights-of-way as may have been disturbed by the provider, its contractors or agents. Upon receipt of an invoice from the city, the provider will reimburse the city for the costs so incurred within 30 calendar days from the date of the city invoice.

(6)

Should the city reasonably determine, within two years from the date of the completion of the repair work, that the surface, base, irrigation system or landscape treatment requires additional restoration work to meet existing standards of the city, a provider shall perform such additional restoration work to the satisfaction of the city, subject to all city remedies as provided in this article.

(7)

Notwithstanding the foregoing, if the city determines that the failure of a provider to properly repair or restore the public rights-of-way constitutes a safety hazard to the public, the city may undertake emergency repairs and restoration efforts. A provider shall promptly reimburse the city for all costs incurred by the city within 30 calendar days from the date of the city invoice.

(8)

A provider shall furnish the city with construction plans and maps showing the location and proposed routing of a new construction or reconstruction at least 15 days (subject to subsection (d) of this section), before beginning construction or reconstruction that involves an alteration to the surface or subsurface of the public rights-of-way. A provider may not begin construction until the location of new facilities and proposed routing of the new construction or reconstruction and all required plans and drawings have been approved in writing by the city, which approval will not be unreasonably withheld, taking due consideration of the surrounding area and alternative locations for the facilities and routing.

(9)

If the city manager declares an emergency with regard to the health and safety of the citizens and requests by written notice the removal or abatement of facilities, a provider shall remove or abate the provider's facilities by the deadline provided in the city manager's request. The provider and the city shall cooperate to the extent possible to ensure continuity of service. If the provider, after notice, fails or refuses to act, the city may remove or abate the facility, at the sole cost and expense of the provider, without paying compensation to the provider and without the city incurring liability for damages.

(10)

Except in the case of customer service interruptions and imminent harm to property or person ("emergency conditions"), a provider may not excavate the pavement of a street or public rights-of-way without first complying with city requirements. The city manager or his designee shall be notified immediately regarding work performed under such emergency conditions, and the provider shall comply with the requirements of city standards for the restoration of the public rights-of-way.

(11)

Within 60 days of completion of each new permitted section of a provider's facilities, the provider shall supply the city with a complete set of "as-built" drawings for the segment in a format used in the ordinary course of the provider's business and as reasonably prescribed by the city, and as allowed by law.

(12)

The city may require reasonable bonding requirements of a provider, as are required of other entities that place facilities in the public rights-of-way.

(d)

In determining whether any requirement under this section is unreasonable or unfeasible, the city manager or his designee shall consider, among other things, whether the requirement would subject the provider to an unreasonable increase in risk of service interruption, or to an unreasonable increase in liability for accidents, or to an unreasonable delay in construction or in availability of its services, or to any other unreasonable technical or economic burden.

(Code 1982, § 25.5-42; Ord. No. 99-47, § 17, 8-30-1999; Ord. No. 99-39, § 17, 9-7-1999)