§ 25.29. Street Occupancy.

A.

Prior to the installation, inspection, repair, replacement, relocation or removal of any conduit, cable wire, fiber-optics or other facilities, or the start of any other construction, in or on the Public Ways, the Grantee must, pursuant to the requirements of existing or subsequently enacted City ordinances of general applicability, obtain all required engineering and construction permits from the City. Application for said permits shall set out the place, date and time where the conduit, cable wire, fiber-optics or other facilities are to be installed, inspected, repaired, replaced, relocated or removed or where any other form of construction is to be conducted. All permit applications submitted by the Grantee must contain drawings showing known utility facilities and specifications prepared by a qualified engineer/technician, and letters of no conflict as provided by other utilities having facilities located where the Grantee desires to place its conduit, cable wires, fiber-optics or other facilities. The City's issuance of a permit shall not create in the Grantee any vested rights and shall not be construed as a warranty that the placement of any conduit, cable wires, fiber-optics or other facilities is in compliance with any applicable rules, regulations or laws.

B.

Within forty-five (45) days after completion of each installation, inspection, repair, replacement, relocation or removal of any conduit, cable wires, fiber-optics or other facilities or the completion of other construction as authorized by issuance of a permit, the Grantee shall provide the City with final as-built drawings signed and sealed by a Professional Surveyor and Mapper (as defined in § 472.005, Florida Statutes). The as-built drawings shall also be in the form of an electronic overview map (in autocad, microstation, mapinfo or ESRI format) showing all underground conduit, cable wires, fiber-optics or other facilities.

C.

The Grantee shall produce and maintain a complete set of as-built drawings and electronic overview maps, including, but not limited to, horizontal and vertical profiles of all conduit, cable wires, fiber-optics and other facilities of the System owned or leased by the Grantee in the Public Ways. Within thirty (30) days of any written request by the City Engineer, the Grantee must provide the City with copies of such complete set of as-built drawings and electronic overview maps.

D.

Any conduit, cable wires, fiber-optics or other facilities installed, replaced or relocated by the Grantee without first having obtained the required permits shall be removed within thirty (30) days of written notice by the City to remove the same and in default of compliance with such notice, such facilities may be removed by order of the City's Public Works Department and the cost of removal shall be borne and paid by the Grantee.

E.

All installations shall be underground in those areas of the City where public utilities providing both telephone and electric service are underground at the time of installation. Conduits, cable wires, fiber-optic lines or other facilities of the System shall be placed between the property line and the curb line of all streets and avenues and shall not be within the roadway recovery area. All underground facilities of the System shall have consistent alignment parallel with the edge of pavement, a thirty-six inch (36") depth of cover for and shall have two (2') foot horizontal clearance from other underground utilities and their appurtenances.

F.

In areas where either telephone or electric utility facilities are above ground at the time of installation, the Grantee may, subject to approval of the City's Public Works Director, install its service above-ground; provided, however, that at such time as those facilities are required to be placed underground by the City or are placed underground, the Grantee shall likewise at the same time place its facilities underground without additional cost to the City or any Subscriber served within the City. If the facilities of either the electric or the telephone utility are aerial, the Cable Television facilities may be located underground at the request of a property owner, provided that the excess cost over aerial location shall be borne by the property owner making the request.

G.

In areas of the City where either telephone or electric utility wires or other facilities are above ground and such facilities are moved, either voluntarily or at the direction of the City, to a new pole or other above-ground structure, the Grantee shall likewise move its above-ground Cable Television facilities to such new pole or structure within thirty (30) days after receipt of written notice from either the City or the owner of the new pole or structure, without additional cost to the City or to the individual Subscriber so served within the City.

H.

For attachment to any pole or other above-ground structure, the lowest placement of any cable wire or fiber-optics in the Public Way shall not be less than eighteen (18) feet from the ground. Where applicable, conduit, cable wires, fiber-optics and other facilities shall be installed, operated and maintained in accordance with the National Electrical Code, the National Electrical Safety Code, the Florida Department of Transportation Utilities Accommodation Guide, the State of Florida Manual of Uniform Minimum Standards for Design Construction and Maintenance for Streets and Highways and the "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines" established by the Department of Commerce, Bureau of Standards of the United States, as each is in force at the time of the respective installation. Notwithstanding, the Grantee shall comply with the standards set forth in the City of Orlando's Engineering Standards Manual adopted by the City Council on June 14, 1993, and prospectively for any future installation, repair, relocation or removal of conduit, cable wires, fiber-optics or other facilities in the Public Way, as such standards, in whole or in part, may be amended from time to time.

I.

Grantee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on the Public Way or on privately-owned property until the written approval of the appropriate governmental authority, and, if necessary, of the property owner, is obtained. However, no location on any pole or other above-ground structure shall be considered a vested interest of the Grantee and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City or other governmental authority determines that the public convenience would be enhanced thereby.

J.

Where the City desires to make use of the poles or other above-ground structures of the Grantee the City may require the Grantee to permit such use free of charge, if the City determines that the use would enhance the public convenience and would not unduly interfere with the Grantee's operations. This paragraph shall not be construed to require the Grantee to permit the Orlando Utilities Commission to utilize the Grantee's poles or structures free of charge.

K.

Grantee shall remove, replace, or modify at its own expense, the installation of any of its facilities as may be deemed necessary by the City or other appropriate governmental authority to meet its proper responsibilities. If, at any time, the City or other authority of competent jurisdiction reasonably determines that any part of the System is harmful to the health or safety of any Person, then the Grantee shall, at its own expense, promptly correct or eliminate all such conditions. If, at any time, a condition exists that the City or other authority of competent jurisdiction reasonably determines is an emergency that is potentially hazardous or life threatening to any Person or is a threat to the health or safety of the general public, and to remedy such condition the City or other authority of competent jurisdiction reasonably determines that the Grantee must temporarily relocate a specific cable wire, fiber-optics or other facility, then the City, as an appropriate exercise of its police powers, may order the Grantee to immediately perform such temporary relocation until the condition has been remedied, and to do so at its own expense and with out liability to or recourse against the City. In such an emergency, when the Grantee is not immediately available or is unable to provide the necessary immediate relocation, then the City shall have the right to perform, or cause to be performed, such temporary relocation until the condition has been remedied with the total cost being charged to and paid for by the Grantee upon demand.

L.

Within a reasonable period of time from the date of written notice from the City, the Grantee must, as specified in said notice, either relocate or remove, at its own cost and expense, such conduit, cable wires, fiber-optics or other facilities in the event the City determines that such relocation or removal is necessary (a) for the construction, completion, repair, relocation or maintenance of a City project, (b) because the cable wire, fiber-optics or other facility is interfering with or adversely affecting the proper operation of street light poles, traffic signals, or any communications system belonging to the City or an agency thereof or (c) because the cable wire, fiber-optics or other facility is interfering with the City's use of its property, or is interfering with the convenient, safe or continuous use, or the maintenance, improvement, extension or expansion of any Public Way(s). In the event the City issues any such written notice to the Grantee, and the Grantee fails to cause the aforementioned relocation or removal as required herein within a reasonable period of time, the City shall be entitled to relocate or remove such cable wire, fiber-optics or other facility at the Grantee's sole cost and expense, without further notice to Grantee.

M.

All installations in the Public Ways of conduit, cable wires, fiber-optics, equipment, fixtures or other facilities shall be subject to the City Code and other regulations of the City pertaining thereto, and shall be performed with the least possible interference with the use of the Public Ways and the rights and appearance and reasonable convenience of the property owners who adjoin on the Public Way and in compliance with the rules and regulations of the Florida Department of Transportation. The Grantee shall at all times employ reasonable care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any installations by the Grantee in any Public Way shall be in such a manner as not to interfere with the usual travel on such Public Way.

N.

In the event that installations, repairs, relocations or other work to be conducted by the Grantee requires streets or traffic lanes to be closed or obstructed, Grantee must, pursuant to the requirements of existing or subsequently enacted City ordinances, obtain all permits from City, and shall obtain approval of its maintenance-of-traffic plan from the City's Public Works Department.

O.

In the event of disturbance of any sort of any Public Way or private property by the Grantee, due to installations, repairs or otherwise, the Grantee shall, at its own expense and in a manner reasonably acceptable to the City or other appropriate governmental authority or the private owner, as the case may be, restore without delay such Public Way or private property that has been so disturbed to as good a condition as such Public Way was in immediately prior to the work by the Grantee that caused such disturbance. If the Grantee fails to so restore the Public Way, the City's Public Works Department, upon twenty (20) days written notice to the Grantee, may perform such restoration as it deems reasonably necessary and the Grantee shall be charged and required to pay the cost of such restoration. The Grantee shall, to the satisfaction of the City's Public Works Director, maintain any restorations made pursuant hereto for a period of one (1) year following the date of its completion. Failure to comply with this subsection shall be deemed sufficient grounds for denial of any future permits for installations in the Public Way.

P.

The Grantee shall not in any way displace, damage or destroy any sewer, water main, pipe, conduit, wires, fiber-optics or other facilities, or any property belonging to, the City or any third party who placed the same therein by express authority of the City, without the consent of the City. The Grantee shall bear all responsibility and costs for any such conduct where City consent has not been obtained.

Q.

The removal, cutting, marring, defacing or destruction of any trees or other vegetation (other than grass) by the Grantee within the Public Way is prohibited, unless the Grantee has obtained all applicable permits from the City, except in cases where normal tree or vegetation trimming is necessary to ensure the safe operation of the Cable Service or to protect the Grantee's cable wires, fiber-optics or other facilities. All such normal tree or vegetation trimming by the Grantee must be performed in accordance with the requirements of existing or subsequently enacted City ordinances and shall be at the Grantee's own expense. All other removal, cutting, marring, defacing or destruction of any trees or other vegetation (other than grass) by the Grantee shall be subject to the supervision and direction of the City or other appropriate governmental authority. If the Grantee either (i) fails to engage in normal tree or vegetation trimming on public property and such failure results in the Grantee's cable wires, fiber-optics or other facilities causing damage or injury to any property or person or (ii) engages in normal tree or vegetation trimming on public property and through such action causes damage or injury to any property or person, then the Grantee, by acceptance of the Franchise, agrees to indemnify, hold harmless, and defend the City for any liability resulting from such damage or injury. The Grantee may contract for such services provided, however, any firm or individual so retained shall receive City approval prior to commencing such activity.

R.

In the event work to be performed by the Grantee requires the obstruction of any City owned or operated, metered parking spaces, the Grantee shall obtain City approval, which shall not be unreasonably withheld, and pay a fee if required to the City as prescribed in any existing or subsequently enacted City Ordinance.

S.

As and when deemed necessary by City Council to be in the interest of the City or its residents, the City may abandon portions of the Public Ways. Such action is within the power of the City in the proper exercise of its municipal authority and may be done without notice to or the consent of any Grantee. The City shall not be responsible for any costs, damages, loss or other expense to the Grantee as a result of abandonment of any Public Way.

T.

Except for acts of willful misconduct or gross negligence and to the extent permitted by applicable law, neither the City nor its officials, boards, commissions, consultants, agents, employees or independent contractors shall have any liability to the Grantee for any claims by the Grantee for any damages, costs, expenses or losses resulting from the City's breakage, removal, alteration or relocation of any part of the System or Grantee's facilities which arises out of or in connection with any emergency or disaster situation, or, when deemed by City Council to be necessary or in the best interest of the public, any public works project, public improvement, alteration of a City structure, change in the grade or line of any Public Way, or the elimination or closing of any Public Way; nor shall any charge be made by the Grantee against the City for the Grantee's damages, costs, expenses or losses related thereto.

U.

In an emergency, as determined by the City, when the Grantee or its representative is not immediately available or is unable to provide the necessary immediate repairs to any conduit, cable wire, fiber-optics or other facility that is damaged or malfunctioning and, in the City's sole discretion, is deemed a threat to public safety, the City, when apprised of such an emergency, shall have the right to remove or make repairs to the same with the total cost being charged to and paid for by the Grantee.

V.

Nothing in this ordinance shall exempt the Grantee from obtaining Engineering Permits pursuant to Part 6B, Chapter 65 of the Orlando City Code for work done within the Public Way. The Grantee is required to pay the appropriate permit fees for such Engineering Permits unless otherwise provided by general or local law. Any such permit fees paid to the City shall be in addition to any franchise fees authorized hereunder, without right of offset, to the extent the City is permitted by law to impose franchise fees.

W.

The Grantee shall at all times comply with the requirements of the Trench Safety Act under Chapter 553, Florida Statutes and the Underground Facility Damage Prevention and Safety Act under Chapter 556, Florida Statutes and shall utilize, and if permissible, maintain membership in the utility notification one call system administered by Sunshine State One-Call of Florida, Inc.

X.

In an effort to minimize the number of facilities within the City's rights-of-way, the disruption of traffic and roadway destruction, the Grantee shall enter into joint use agreements with the City and other parties who are expressly authorized by the City to use its Public Ways provided the terms of such agreements are satisfactory to the Grantee. Nothing herein contained shall mandate that the Grantee enter into joint use agreements with parties other than the City or an agency of the City. The Grantee shall not be permitted to perform construction in those segments of Public Ways where there exists vacant or available conduit, dark fiber or surplus fiber owned by the City, an agency of the City or another governmental body which is or, through a reasonable amount of effort and expense, can be made compatible with the System. Under such circumstances the Grantee shall have the opportunity to enter into a use agreement or lease arrangement with the City or an agency of the City at or below reasonable and prevailing market rates for such conduit or fiber or, where owned by another governmental body, shall, in good faith, first exhaust all means of obtaining use of such conduit or fiber before applying for a right-of-way construction permit from the City.

Y.

At all times during the term of any Franchise granted pursuant to this Chapter 25, the rights of the Grantee shall be subject to all lawful exercise of police power by the City, and to such reasonable regulation of the Public Ways as the City shall hereafter by resolution or ordinance provide in the interest of the health, safety and welfare of the public. Any inconsistency or ambiguity between the provisions of this Chapter 25 and any lawful exercise of the City's police power shall be resolved in favor of the latter.

Z.

The City, in the proper exercise of its municipal powers and duties with respect to the Public rights-of-way, shall have access at any time to all manholes of the Company in the Public rights-of-way. The City will provide the Company prior notice to afford an opportunity to have trained Company personnel present unless determined by the City to be an emergency situation.

(Ord. of 1-7-1985, Doc. #19125; Ord. of 9-23-1996, Doc. #29666; Ord. of 12-11-2000, § 2.7, Doc. #33439; Ord. of 8-13-2001, §§ 4.6, 6, Doc. #34000)