27.090 Use of Public and Private Property.

(1) Public Right-of-Way Installation.

(a) Generally. The franchisee’s cable system shall only be installed on existing pole facilities that franchisee may use under a valid pole attachment agreement or order of the City, on the property of a subscriber, in compatible easements that franchisee is entitled to use, under or over the streets of the City or on the property of the franchisee. Installation of new poles in the streets is forbidden without the prior written consent of the City.

(b) No Vested Rights Created. A franchisee’s placement of its cable system pursuant to its franchise shall not be deemed to give that franchisee a property or other interest in any particular location within the streets, or a preference over any other entity authorized to use such property. The City reserves the right in its reasonable discretion to designate where a cable system is to be placed within the streets.

(c) Underground and Aerial Construction. In all areas of the City where the cable or wire distribution facilities of the local exchange carrier and the electric company are installed, or are to be installed, underground, the franchisee shall install its cable system underground. Without limitation, where telephone and electric distribution drops are required to be located underground, cable drops shall be underground.

In all areas of the City where the distribution lines of the local exchange carrier and the electric utility were aerially placed at the time of construction of the cable system, if such lines are subsequently relocated underground, the franchisee shall, at that same time, relocate its cable system underground; provided, that if the subscriber requests it, and if consistent with applicable laws and regulations, the franchisee need not relocate drops to the home underground.

(2) Subscriber Property Installation.

(a) Permission Required. No cable, line, wire, amplifier, converter or other piece of equipment owned or controlled by the franchisee shall be installed on private property by the franchisee without first securing the permission of the owner or tenant in possession of such property or the written permission of the holder of any easement for utility lines or similar purposes, except as expressly authorized by Federal law. Except in emergency situations, the franchisee may not enter onto private property for the purpose of installing, repairing or replacing equipment without giving advance notice, and may not enter into a home or multiple dwelling unit for those purposes without an appointment with the occupant of the property. The provisions of this subsection represent permission requirements by the City. These requirements are not meant in any way to replace any property rights of owners or occupants to restrict access to their own property.

(b) Subscriber Right to Install. A subscriber may install its own internal wiring, or contract to have wiring installed, and the franchisee must use that wire unless the installation does not meet applicable FCC standards or applicable safety codes.

(c) Consultation with Subscriber. The franchisee shall consult with the subscriber and the landowner with regard to point of entry of the drop connection to the structure and shall consult with the subscriber or landowner before such point of entry is made. It shall follow any instructions received unless it is not possible to do so in accordance with applicable safety codes.

(d) Consultation on Internal Wiring. The franchisee shall likewise consult with the subscriber and landowner and follow the instructions received with respect to internal wiring installed by the franchisee. In any event, internal cable runs shall be made as unobtrusively as possible.

(e) Terms of Extension of Service. The franchisee shall extend service upon request without charging any fee beyond then-prevailing installation charges except that:

1. In cases where service has been extended on the street past a residence or business, but the drop from the nearest point on the cable system from which service could be provided to the home exceeds 150 feet, the franchisee may require the subscriber to pay the difference between the cost of labor and materials required to install a 150-foot drop to that home and the actual cost of labor and materials required to install the drop to that home.

2. Where drop connections could be aerial, the franchisee shall place the drops underground at the subscriber’s request, if the subscriber agrees to pay the actual difference in labor and materials between the cost of installing an underground drop instead of an aerial drop.

(3) No Hindrance to Public Works. Without limiting the City’s rights under any other provision herein, it is specifically agreed that the rights and privileges granted hereby shall not be in preference or hindrance to the right of the City, or other authority having jurisdiction, to change or alter the grade, to sell or vacate any street or other public property; to construct, operate or maintain or move any building, line, pipe, conduit, ditch, sewer, playground or other public improvement, work, utility, structure, system or facility; or to protect public health and safety and property.

(4) Relocation of Facilities. Without limiting the rights of the City or the rights of others under subsections (1) and (2) of this section, the following rules shall govern:

(a) For Government. The franchisee shall remove, relay and relocate its cable system at its own expense whenever the City or any authorized governmental body, including Manitowoc Public Utilities, so requires, including for reasons of traffic conditions; public health and safety and protection of property; or because the City or authorized governmental body elects to change or alter the grade, or sell or vacate any street or public property; to construct, operate, repair or move any building, line, wire, cable, pipe, conduit, ditch, sewer, playground or other public improvement, work, utility, structure, system or facility; which change, alteration, sale, vacation, movement, construction, operation or repair will be aided by removal, relaying or relocation of the franchisee’s cable system. The franchisee shall be given written notice requesting the removal, relaying or relocation of its cable system as soon as practicable, but at least 20 days in advance of the date removal, relaying or relocation of the cable system must be completed.

(b) For Other Users of Rights-of-Way. If any removal, relaying or relocation is required to accommodate the movement, construction, operation or repair of the facilities of another person that is authorized to occupy the streets, franchisee shall remove, relocate or relay its cable system within 20 days after receiving written notice from such person that such removal, relocation or relaying is required. The reasonable cost of franchisee compliance with respect to any such request shall be borne by the person requesting such compliance and the franchisee may require payment in advance.

(c) For Third Parties. The franchisee shall, upon the request of any person holding a building moving permit issued by the City, temporarily raise, lower, relay, relocate or remove its wires, cables and other facilities to accommodate the moving of the building. The reasonable cost of such temporary raising or lowering, relaying, relocation or removal of the franchisee’s facilities shall be paid by the person requesting the same, and the franchisee shall have the authority to establish the reasonable cost of such changes and require such payment in advance. The franchisee shall temporarily move its system as required under this section if required payments are made and the franchisee is given at least seven days’ advance written notice to arrange for such temporary changes.

(d) Removal or Relocation in Event of Emergency. In event of emergency, or where franchisee’s cable system creates or is contributing to an imminent danger to health, safety or property, City may remove, relocate or relay that cable system without prior notice. Any costs related to such activity shall be borne by franchisee.

(5) Duty to Protect Public and Private Property.

(a) Generally. Franchisee shall construct, operate and maintain its system with due care for the safety and integrity of persons and property, and shall use appropriate safety devices, warning signs, barricades and lights to prevent harm to persons or property. It is the duty of franchisee to protect, at its expense, public and private property from damage caused by the construction, operation and repair of its cable system, and to promptly repair damage caused by the construction, operation and repair of its cable system. Unaesthetic or poor workmanship shall be considered “damage.” Property damaged shall be repaired to a condition at least as good as existed before the damage occurred within 10 days of the damage. The franchisee shall at all times comply with the requirements of 47 USC 541(a)(2)(A) through (C).

(b) Duty to Notify. The franchisee shall notify any person whose property is damaged by the franchisee within four hours of the time the damage is discovered. If the franchisee is unable to make personal contact within four hours, the franchisee may provide notice by placing a door hanger on the property. At a minimum, this section requires the franchisee to place a prominent notice in a prominent place on the damaged property, and to make diligent efforts to contact the property owner or resident by phone or in person.

(6) Failure to Move, Replace or Restore. If the franchisee fails to remove, relay or relocate its cable system as required or within the time period specified in subsection (4) of this section; or if the franchisee fails to restore, repair or replace public streets or public property as required and within the time period specified in subsection (5) of this section; the City may perform the work or hire someone to perform the work, and the franchisee shall compensate the City for all reasonable expenses it incurs. In the event the franchisee fails to restore, replace or repair private property as required and within the time period specified by subsection (5) of this section, the owner may perform the work itself or hire someone to perform the work, and the franchisee shall compensate the owner for all reasonable expenses incurred. If the franchisee fails to protect or restore streets or public property as required by the franchise, the City may do so, and the franchisee shall compensate the City for all reasonable expenses incurred thereby. The franchisee shall pay expenses incurred by the City or property owner within 30 days of receipt of an itemized account of such expenses.

(7) Contractors. All franchisee’s contractors or subcontractors shall be properly qualified and licensed, and each contractor or subcontractor shall have the same obligations with respect to its work as franchisee would have under its franchise and applicable laws and regulations if the work were performed by the franchisee. The franchisee shall be responsible for training and testing, if necessary, the knowledge of all contractors and subcontractors (including installers). The franchisee is also responsible for ensuring that the work of its contractors and subcontractors is performed consistent with its franchise and applicable laws and regulations, shall be fully responsible for all acts or omissions of its contractors or subcontractors and shall be responsible for supervising and promptly correcting acts or omissions by any of its contractors or subcontractors.

(8) Identification. The franchisee shall ensure that all of its vehicles, employees, agents and contractors are clearly identified to the general public as being associated with the franchisee. Any employee, agent or contractor of the franchisee must present a picture identification before entering a subscriber’s home.

(9) Excavation. All excavation shall be performed so as to create the least inconvenience to the public, and in accordance with permits issued by the City. The City shall have the right to supervise all excavation.

(10) Tree Trimming. The franchisee shall be responsible for the trimming of any trees required by the location of its wires. The franchisee shall not, however, remove any tree or trim any portion, either above, at or below ground level, of any tree within any street, highway or other public right-of-way without the prior consent of the City’s Parks and Recreation Department. The City shall have the right at its option to do the trimming requested by the franchisee at the cost of the franchisee, or to require the franchisee to do the same. Regardless of who performs the work requested by the franchisee, the franchisee shall be responsible for and shall defend and hold the City harmless for any and all damages done to any tree as a result of any trimming, or to the land surrounding any tree, whether such tree is trimmed or removed. The requirements herein shall be in addition to any consents the franchisee is required to obtain under the Wisconsin Statutes or any other authority.

[Prior code § 27.09]