§ 32-218. Facilities requirements; planned infrastructure.

(a)

Prior to constructing any new or additional facilities within the right-of-way, franchisee shall make a good faith effort to ascertain whether existing or planned facilities (such as conduit) exists that the franchisee could reasonably utilize to meet its needs. Provided, however, if during the term of this franchise the city adopts a generally applicable ordinance requiring all users of the right-of-way to provide mapping of such facilities prior to constructing any new facilities franchisee will be required to certify in writing to the county engineer that it has made appropriate inquiry to all existing utilities and other entities possessing a right to occupy the rights-of-way as to the availability of existing or planned facilities (such as conduit) that the franchisee could reasonably utilize to meet its needs, and that no such facilities are available or planned within the near future at a reasonable cost.

(b)

Upon a determination that no such facilities are available, franchisee may install new facilities pursuant to the following requirements:

(1)

Unless otherwise provided under the rules and policies adopted pursuant to of the ROW Ordinance, a franchisee shall provide written notification of the proposed construction activity to all existing utilities, franchisees, and other known service providers who shall have 21 days from the receipt of such notification to indicate in writing to the city and the franchisee as to whether they desire to jointly undertake the construction of such facilities or otherwise co-locate their facilities at such time. Any utility or franchise holder electing to jointly construct or co-locate its facilities with that of franchisee shall share in the pro-rata costs of such construction or co-location of facilities reasonably incurred by franchisee and shall participate in the project on reasonably the same time schedule established by the franchisee unless opposed by the city. The county engineer will work with franchisee in developing the process for these notification requirements.

(2)

When a franchisee installs any new trench and/or conduit, the franchisee shall, at the request of the county engineer, enable collocation by city or other entities, install sufficient additional space and/or conduit or other related facilities ("excess conduit") to meet the city's planned infrastructure needs and needs of other entities planning development of facilities in the area.

a.

Such excess conduit, unless otherwise mutually agreed in writing, shall be owned by the city, and the city shall reimburse the franchisee in the amount of the incremental cost of the labor and material of installing the excess conduit simultaneous with the franchisee's conduit. Such reimbursements are subject to review and approval by the city, and unless otherwise agreed to by the city, shall be paid in the form of credits or offsets to franchise fees due the city from franchisee, taking into account the time value of money, distributed to franchisee over not more than 60 equal monthly credits. The specific payment mechanisms will be set out in the franchise agreement or other separate agreement. In no event shall such monthly credit ever exceed the franchise fee due.

b.

If the city and franchisee agree to alternative terms in which the franchisee retains ownership of the excess conduit, the franchisee shall be obligated to make such conduit and/or trench space available to any other user of the rights-of-way on a nondiscriminatory and competitively neutral basis at not more than the pro rata cost of that portion of the excess conduit, determined by the total labor and material cost of all facilities at that location, plus interest at the prevailing market rate. Neither franchisee nor its affiliates shall be entitled to use such excess conduit owned by franchisee without notice to and consent of the county engineer on a determination that such conduit is not needed for current or future use by other franchisees. All city use of the excess conduit shall be at no additional cost to the city. In the event the city leases or sells excess conduit acquired pursuant to this subsection to any third party, it shall require payment of at a minimum the pro rata cost of the excess conduit.

(3)

Such requirements or policies as may be adopted by the city to implement these provisions shall be administered and applied on a competitively neutral and nondiscriminatory basis to maximize the available space in the rights-of-way and to minimize the total number of excavations and cost of total communications infrastructure installation.

(4)

The franchisee shall keep and maintain records and as-built drawings depicting the accurate location of all facilities constructed, reconstructed, located, or relocated in the right-of-way of the city after the date hereof and shall provide that information to the city in a format as may be identified by the county engineer annually or upon request. Such location and identification shall be at the sole cost and expense of the grantee, without any such cost or expense to the city or its authorized agents and contractors.

(Ord. No. O-10-18 , § 1, 3-22-2018)