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SANTA CLARA COUNTY CODE OF ORDINANCES: Sec. B10-69. General conditions upon construction, operation and repair.

Copyrighted by SANTA CLARA COUNTY CODE & Municipal Code Corporation, 1998.

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Sec. B10-69. General conditions upon construction, operation and repair.

(a) The construction, operation, and repair of cable communications systems shall be performed in compliance with all applicable laws, ordinances, resolutions, departmental rules, regulations, written policies, and practices affecting such system. By way of example, and not limitation, this includes the Santa Clara County Zoning Ordinance; all other 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, 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 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 County's demand.

(c) Construction, operation, or repair of a cable communications system shall not commence until all required permits have been obtained from the proper County 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 County, any work and/or construction undertaken that is not completed in compliance with the County'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 County. For any project where a franchisee will be working in the public rights-of way for 30 days or more, franchisee must provide at least 120 days' advance notice of the project to the County prior to submission of permits, and comply with all requirements under the County code applicable to major and special projects, including but not limited to agreeing to pay for additional personnel and equipment costs associated with the County work in connection with the project.

(d) Each cable communications system operator must use its best efforts to minimize interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems. When planning construction in the public rights-of-way, franchisee shall investigate opportunities for coordinating construction with other users of the public rights-of-way. The County may, except as prohibited by law, require a person using the public rights-of-way to engage in joint trenching and to enter into other arrangements to minimize adverse impacts on the public rights-of-way.

(e) Additional poles may not be installed in the public right-of-way without the permission of the County Director of Roads and Airports. The County may require a cable communications system operator to use existing conduit unless the cable communications system operator shows that it is not technically possible to do so.

(1) Whenever all existing utilities are located underground in an area in the County, 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 its cables, wires or fiber optics underground within an area of the County, every cable communications system operator in the same area shall concurrently relocate its cables, wires or fiber optics underground. Other facilities such as equipment cabinets will be placed aboveground or underground as directed by the County Director of Roads and Airports.

(3) The County Director of Roads and Airports may 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 relocation is impractical, or where the interest in protecting against visual blight can be protected in another manner.

(4) Nothing in this section prevents the County from ordering cable communications system facilities to be located or relocated underground under other provisions of the County Code.

(f) Any and all public rights-of-way, other public property, or private property that is disturbed or damaged in connection with or as a result of the construction, operation or repair of a cable communications system shall be repaired by the operator to a condition that complies with the then-current County Code and that is as good or better than its prior condition, in a manner and within a time approved or specified by the County Executive. Without limiting the foregoing, the operator shall compensate any entity whose property is damaged in the course of construction, operation or repair of a cable communications system where the property is not restored by the operator to a condition as good or better than existed before the damage. Because such repairs cannot adequately compensate the County for the inherent damage to the public roads caused by such construction, maintenance or use of its poles, wires, conduits and appurtenances upon the public roads, the County may also impose a reasonable fee upon an operator to cover all costs that may be incurred by the County that are reasonably attributable to operator's construction, use or maintenance of any poles, wires, conduits and appurtenances upon public roads, whether such costs are known or unknown by operator and the County at the time a franchise becomes effective, provided such fees are generally applicable to all utilities and cable communications operators doing construction, operation or repair in the public rights-of-way pursuant to franchises or other authorizations granted by the County after the effective date of this chapter.

(1) A cable communications system operator shall, by a time and in a manner specified by the County, protect, support, temporarily disconnect, relocate, or remove any of its property when requested by the County 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 public improvement; or for any other public 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." The County, on request, will cooperate with each cable communications system operator in providing access to public documents so that the cable communications system operator can research future projects affecting location of facilities in the public right-of-way prior to the operator's installation of its property.

(2) The County shall provide written notice describing where the public work is to be performed and a deadline for completing the work at least 15 days 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 where it cannot be performed by the deadline even with the exercise of due diligence, and such request for an extension will not be unreasonably denied. 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 County 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 reasonable costs incurred. The County will make reasonable efforts to provide prior notice.

(3) To accommodate the construction, operation, 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 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 County, even if the County makes the request for such action. In cases where the requesting person is required under this section 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.

(4) 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 15 days' advance notice to arrange for such temporary wire changes. The cable communications system operator, as a condition of complying with such request, may require the requesting person to pay the reasonable materials and labor expense of such temporary removal or raising or lowering of wires, provided that the operator provides an estimate of the cost of the work and support for that estimate. In cases where the requesting person is required under this section to bear the cost of raising or lowering wires, the operator may require payment of the estimated expense in advance.

(5) 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 County and separate notice to the County Director of Roads and Airports. However, if, within 90 days of the receipt of written notice of abandonment, the County 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 reasonably specified by the County in light of the amount of work to be performed.

(6) A cable communications system operator that abandons its property must, upon request, transfer ownership of the property to the County 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. The operator must indemnify the County against future costs associated with mitigating or eliminating any hazard associated with the abandoned property.

(g) Every cable communications system shall be subject to inspection and testing by the County. Each operator must timely and fully respond to requests for information regarding its system and plans for the system as the County 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.

(h) 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 verify the location of its facilities for public projects when requested by the County at no charge.

(i) At least 90 days prior to commencing construction, each cable communications system operator shall provide the County a 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 County that will be affected.

(j) A franchisee ("Franchisee A") may be required to interconnect Access Channels with a competing franchisee in the County ("Franchisee B") in the event that Franchisee B proves to the County that it would be economically burdensome to its subscribers to construct and maintain return lines directly from the origination point(s) of the Access Channel(s) versus interconnecting with Franchisee A while Franchisee B is originally constructing its system. Franchisee A may request and receive a copy of such proof from the County, and challenge same to County. The County, in its sole discretion, shall make the final determination. In the event Franchisee A receives a directive from the County to interconnect with Franchisee B, Franchisee A shall immediately initiate negotiations with Franchisee B and shall report to the County the results of such negotiations no later than 60 days after such initiation. Franchisee B shall be responsible for all of Franchisee A's costs in constructing and maintaining the interconnect. If the parties cannot reach agreement on the terms of the interconnect, including compensation and timing, the dispute shall be submitted to the County for determination and resolution. If Franchisee A is required by the County to interconnect its Access Channels with Franchisee B while Franchisee B is initially constructing its cable communications system, Franchisee A's obligation to provide the interconnect for any particular Access Channel shall cease when Franchisee B has completed construction of its cable communications system in the vicinity of the PEG user facility, at which time Franchisee B shall construct its own return line from such related PEG user facility.

(Ord. No. NS-905, § 2, 12-13-05)