CHAPTER 8-2: CITY RIGHT-OF-WAY
SECTIONS:
8-2-3 USE OF CITY RIGHT-OF-WAY:
8-2-8 RESPONSIBILITY OF PERMITTEE:
8-2-9 RESPONSIBILITY OF PROPERTY OWNER; SEWER CONNECTION:
8-2-10 CONSTRUCTION AND RELOCATION OF FACILITIES:
8-2-11 PAVEMENT CUTS IN NEW STREETS:
8-2-12 PAVEMENT RESTORATION FEE:
8-2-14 CEASE AND DESIST ORDERS:
8-2-20 SALE OF UNNECESSARY PUBLIC WAYS:
8-2-1 DEFINITIONS OF TERMS:
AUTHORITY POLE:
(A) A utility pole, other than a utility pole for designated services, that is owned or operated by the City and that is in a right-of-way, including a utility pole that provides lighting or traffic control functions such as light poles, traffic signals and structures for signage.
(B) A pole or similar structure that is owned or operated by the City, that is in a right-of-way and that supports only wireless facilities.
CITY RIGHT-OF-WAY: Any public street, highway, alley, sidewalk or other platted or written easement which has been dedicated to, or accepted by, or acquired by, the City for public purposes.
EASEMENT: A grant of one (1) or more property rights (e.g., access) by the owner to, or for the use by, the public, a corporation, or another person or entity that includes the total area lying between the exterior edges of the easement.
FRANCHISE: A voter approved franchise from the City to a public utility pursuant to A.R.S. § 9-502 or a utility allowed to operate in City right-of-way by a state of Arizona or federal statute.
HISTORIC DISTRICT: Includes areas of the City which are recognized by either local historic preservation districts or the National Register of Historic Places, and/or a combination of both, and as shown on the map on the City’s website at:
http://www.prescott-az.gov/wpcontent/uploads/2015/08/national_register_districts.pdf
and updated from time to time.
LICENSEE: A person or company who has an implied or express invitation, either through an existing franchise agreement or applicable statute, to enter upon the property of the licensor to do a particular or specified act, or series of acts.
MONOPOLE: A wireless support structure that is not more than forty inches (40") in diameter at the ground level and that has all the wireless facilities mounted on or inside of the pole.
PERMITTEE: The person or company that will make use of the permit awarded by the City. Not the contractor or subcontractor performing the work.
PERSON: Any individual or his agent, firm, partnership, association, corporation or agent of the aforementioned groups or the state, or any agency or political subdivision thereof.
SMALL WIRELESS FACILITY (SWF): A wireless facility: (1) on which each wireless provider’s antenna could fit within an enclosure of no more than six (6) cubic feet in volume; and (2) for which all wireless equipment associated with the wireless facility, whether ground mounted or pole mounted, is cumulatively no more that twenty-eight (28) cubic feet in volume, not including any: (a) electric meter; (b) concealment element; (c) demarcation boxes; (d) grounding equipment; (e) power transfer switch; (f) cutoff switch; or (g) vertical cable runs.
UTILITY: Any lawful operating public service corporation as defined in Article XV, Section 2 of the Constitution of the State of Arizona or any utility that is allowed to operate in portions of City right-of-way by way of a state of Arizona or federal statute, whether deemed a public service corporation pursuant to Article XV, Section 2, of the Constitution of the State of Arizona, or not.
UTILITY POLE: A pole or similar structure that is used in whole or in part by a communications service provider or for electric distribution, lighting, traffic control or signage or a similar function. "Utility pole" does not include structures supporting only wireless facilities.
WIRELESS FACILITY: A pole or similar structure used in whole or part for communications services, electric distribution, lighting or traffic signals.
WIRELESS SUPPORT STRUCTURE: A freestanding structure, such as a:
(A) Monopole;
(B) Guyed or self-supporting tower;
(C) Sign or billboard; or
(D) Any other existing or proposed structure designed to support, or capable of supporting, SWFs.
(The definition does not include a utility pole.) (Ord. 1338, 6-11-1979; amd. Ord. 2279, 6-25-1991; Ord. 4121, 6-26-2001; Ord. 4981-1519, 6-7-2016; Ord. 2019-1646, 3-12-2019; Ord. 2022-1789, 6-14-2022)
8-2-2 IMPROVEMENTS:
No person shall make, or allow to remain, any improvement in any City right-of-way unless a permit from the Engineering Division is first secured and unless the permit and application fees specified in this chapter are first paid to the City. The term "improvement," as herein used, means and includes grading or regrading, placing of base materials, paving or repaving, construction or reconstruction of any sidewalk, driveway approach, curb, curb and gutter, bike path, alley gutter or cross gutter; the placement of any bench or planter box or other solid object, traffic-control and protection devices, striping and fences; the planting or removal of any tree or shrubbery; the placing, relocating or transporting of any structure; excavations for the installation or repair of any sanitary sewer line, water line, gas line, electrical line, television cable, telephone line or appurtenant facilities; the installation or repair of any storm drain, drainage structures or appurtenant facilities; and the installation of any small cell wireless or monopole wireless facility.
Drainage regulations for the control of drainage in public right-of-way, public easement or public property shall be as set forth in Title XVI, Chapter 2. (Ord. 1338, 6-11-1979; amd. Ord. 1432, 3-10-1980; Ord. 1508, 3-9-1981; Ord. 3350, eff. 6-22-1995; Ord. 3853, 3-9-1999; Ord. 4981-1519, 6-7-2016; Ord. 2019-1646, 3-12-2019; Ord. 2022-1789, 6-14-2022)
8-2-3 USE OF CITY RIGHT-OF-WAY:
(A) No person shall maintain or use a location on any City right-of-way or sidewalk owned by the City for the purpose of conducting any business, providing a service, advertising or making or attempting to make sales, except for those facilities or uses described as follows: sanitary sewer mains; manholes and service connections; water mains; vaults and service connections; gas mains, vaults, manholes and service connections; television conduit, duct, direct buried cable or wire, vaults, manholes and poles; electrical conduit, duct, direct buried cable or wire, vaults, manholes and poles; telephone and other communication conduit, duct, direct buried cable or wire, vaults, manholes and poles; small cell wireless facilities and support structures; and those uses and facilities specifically listed in Section 8-2-4.
(B) No person shall make any improvement at any location on, over, across or under any City right-of-way or sidewalk owned by the City other than that which has been approved and a permit issued by the Public Works Department for said improvement.
(C) No person shall stand on any City right-of-way or sidewalk owned by the City and solicit, or attempt to solicit employment, business or contributions from the occupants of any vehicle.
(D) No person shall place, maintain or cause to be placed or maintained an encroachment or obstruction on or in any public right-of-way, unless a permit has been issued by the City of Prescott pursuant to Section 8-2-6.
(E) No person shall place, maintain or cause to be placed or maintained a campaign sign or any other temporary sign on or in any public right-of-way. Violations of these provisions shall be punishable as prescribed in Section 1-3-1, General Penalty; Misdemeanors, Civil Violations, Continuing Violations. (Ord. 3528, eff. 8-13-1996; Ord. 4107, 5-8-2001; Ord. 4839-1302, 7-10-2012; Ord. 4968-1506, 2-16-2016; Ord. 4981-1519, 6-7-2016; Ord. 2019-1646, 3-12-2019; Ord. 2022-1789, 6-14-2022)
8-2-4 EXEMPTIONS:
The following uses are hereby exempt from the provisions of Sections 8-2-2 and 8-2-3(A), but are subject to the remaining provisions of this chapter (unless otherwise indicated):
(A) The placement of mailboxes. Said mailboxes are also exempt from the provisions of Section 8-2-7 unless they do not meet the construction requirements as set forth in the General Engineering Standard details 134Q-1 and 134Q-2.
(B) The placement of receptacles for free magazines, periodicals, newspapers, and paper-based marketing and advertisement materials, which are also exempt from the provisions of Sections 8-2-3(B), 8-2-5 and 8-2-7, outside of the downtown business area. However, said receptacles shall be placed back of the curb where curbs are installed and shall be placed so as not to interfere with the traveled roadway where curbs are not installed. The placement of privately owned receptacles for free magazines, periodicals, newspapers, and paper-based marketing and advertisement materials is strictly prohibited in the downtown business area. The "downtown business area" is defined in subsection (K) of this section.
(C) The placement of vending machines for the sale of magazines, periodicals, and newspapers outside of the City’s downtown business area is exempt from the provisions of this chapter with respect to requiring a permit and paying the fees therefor, but said newspaper racks shall be securely fastened by a chain or cable to a permanent structure to prevent their being moved and interfering with pedestrian traffic. The placement of privately owned vending machines in the downtown business area is strictly prohibited. The "downtown business area" is defined in subsection (K) of this section.
(D) The placement of City-owned receptacles and vending machines for the storage of, and/or sale of, magazines, periodicals, newspapers, and paper-based marketing and advertisement materials.
(E) The planting of or the removal of any tree or shrubbery, which is also exempt from the provisions of Section 8-2-7.
(F) The placement of racks or similar improvements for the securing and parking of bicycles adjacent to businesses owned by or occupied by the applicant, which are also exempt from the provision of Section 8-2-7; provided, however, that in the downtown Prescott area all such racks or similar improvements must be constructed of black metal or iron which is compatible with the existing downtown furnishings in the downtown Prescott area.
No permit shall be issued pursuant to this subsection until the applicant posts with the City a general liability insurance policy, in an amount of not less than one million dollars ($1,000,000.00), naming the City of Prescott as an additional insured. The requirement for insurance shall remain in full force and effect so long as the racks or similar improvements remain in the public right-of-way.
(G) Planters or other similar uses, which are also exempt from the provisions of Section 8-2-7.
(H) Sidewalk sales by duly licensed businesses adjacent thereto, which are also exempt from the provisions of Section 8-2-7. Said sales shall only be allowed by written permission of the City Manager, subject to any terms, conditions and restrictions as determined by the City Manager. Such sales shall be limited to four (4) events per year per business, as determined by the City Manager. All merchandise and associated equipment, if placed in a sidewalk, must be placed in such a manner that it allows a minimum of forty-eight inches (48") of unobstructed travel on the sidewalk, and must be placed closer to the business than the curb or outside edge of the sidewalk. Such sales shall also be exempt from the provisions of Sections 8-2-6 and 8-2-7.
(I) Tables, benches and chairs, which are also exempt from the provisions of Sections 8-2-5, 8-2-6 and 8-2-7. Said tables, benches and chairs may be placed on a sidewalk adjacent to a duly licensed business by that business, with the following limitations and conditions:
1. Tables and chairs may only be outside of a business when the adjacent business is open to the public.
2. All such tables, chairs and benches must be kept in a clean condition and in a good state of repair. Unsightly conditions, including, but not limited to, the accumulation of dirt, debris, breakage, rotting, crumbling, cracking, peeling or rusting, and any other similar condition of disrepair or deterioration, is expressly prohibited.
3. If placed in a sidewalk, all such benches must be placed in such a manner that it allows a minimum of forty-eight inches (48") of unobstructed travel on the sidewalk. All such tables and chairs must be placed in such a manner that it allows a minimum of forty-eight inches (48") of unobstructed travel on the sidewalk between the tables and chairs and the curb or outside edge of the sidewalk. All tables and chairs must be placed closer to the business than the curb or outside edge of the sidewalk, and laterally may not extend past the building facade of that business.
4. All tables, chairs and benches allowed by this subsection (I) must be made of metal, wood or a combination thereof; provided, however, that in the downtown Prescott area, all tables, chairs and benches must be constructed of black metal or iron which is compatible with the existing downtown furnishings, and further that outside umbrellas associated with tables or benches are hereby prohibited in the downtown Prescott area.
5. Signage or advertising on any table, bench or chair is expressly prohibited.
(J) Sandwich signs, which are also exempt from the provisions of Sections 8-2-5, 8-2-6 and 8-2-7, with the following limitations and conditions:
1. Said signs may only be outside of a business located within the Downtown Business Zone District, which conducts business on a continuing basis at a permanent location, when the adjacent business is open to the public, and placed in the right-of-way by or on behalf of that business.
2. Said signs may be no more than fifty inches (50") high and thirty-one inches (31") wide. The foregoing measurement shall include all structures or objects upon which the sign is placed or located, together with anything affixed or attached thereto.
3. All such signs must be kept in a clean condition and in a good state of repair. Unsightly conditions, including, but not limited to, the accumulation of dirt, debris, breakage, rotting, crumbling, cracking, peeling or rusting, and any other similar condition of disrepair or deterioration, is expressly prohibited.
4. There may only be a maximum of one (1) sign in front of any one (1) property at any one (1) time.
5. If placed in a sidewalk, any such sign must be placed in such a manner that it allows a minimum of forty-eight inches (48") of unobstructed travel on the sidewalk. In the downtown Prescott area, all such signs must be placed closer to the curb or outside edge of the sidewalk than to the business.
6. The following signs are expressly prohibited: any sign emitting sound, containing light bulbs, balloons, or signs with intermittent or flashing illumination, or animated or moving signs.
7. No signs may be located within a street, public trail, City planter, roadway or other thoroughfare, nor may any sign be affixed to a tree, traffic sign, traffic-control device or utility pole.
(K) For the purposes of this section, the "downtown Prescott area" is hereby defined as follows: that area which is bounded on the south by Carleton Street (not inclusive of Carleton Street), on the east by Marina Street (inclusive of Marina Street), on the north by Sheldon Street (inclusive of Sheldon Street), and on the west by McCormick Street (inclusive of McCormick Street).
(L) The placement of kiosks and the use thereof which are owned by the City. (Ord. 4121, 6-26-2001; Ord. 4420, 10-26-2004; Ord. 4839-1302, 7-10-2012; Ord. 4968-1506, 2-16-2016; Ord. 4981-1519, 6-7-2016; Ord. 2019-1644, 2-26-2019; Ord. 2022-1789, 6-14-2022)
8-2-5 APPLICATION REQUIRED:
It shall be unlawful to make any improvement in any City right-of-way without filing with the Public Works Department an application in writing on such form as may be required by the City and obtaining a formal permit for such work, unless specifically exempted pursuant to the terms of this chapter.
(A) Permits shall identify the person or company who will make use of the permit, the applicant, along with all contractors and subcontractors who will be performing work in a City right-of-way on the permit application. The rights granted by the permit shall not be assignable without the prior written consent of the Public Works Department. The applicant for a permit pursuant to this chapter shall be the party held responsible for completing all phases of a project for which a permit has been issued until final acceptance by the City.
(B) The City shall prescribe and provide a regular form of application for the use of applicants for permits required by this chapter. The application shall show such information and details as the City deems necessary to establish the exact location, nature, dimensions, duration and purpose of the proposed work, activity, use or encroachment shall be submitted to the Public Works Department together with the application fee.
1. Upon review of the application and other required documents, unless otherwise determined by the City, the Public Works Department shall determine whether the use sought to be made of the City’s rights-of-way requires a permit and/or license agreement, which fees apply to this permit, if the pavement restoration fee applies, and which approval process must be followed for that application. Additional fees may be required pursuant to other provisions of City Code or other state or federal laws.
2. Applications for right-of-way permits and all documents and other information required to be submitted will be reviewed by such City staff or retained consultants as deemed necessary by the Public Works Department. Based on such review the right-of-way permit application may be approved, conditionally approved or denied by the Department. If the City finds that the application is in accordance with the requirements of this chapter, it may issue a permit for the work, activity, use or encroachment, attaching such conditions as is necessary for the health, safety and welfare of the public, including but not limited to aesthetic considerations. If the City finds the application is in conflict with the provisions of this chapter or any City, state or federal law, the permit shall be denied, and the applicant given written reasons for the denial.
(C) The application shall be accompanied by construction plans, such as engineered designs, maps, sketches, diagrams or similar exhibits. The same shall be of the size and in the quantity prescribed by the City and of sufficient clarity to illustrate the method of construction, design, location, dimensions, nature and purpose of the proposed work, activity, use or encroachment and its relation to existing and proposed facilities in a City right-of-way.
(D) Any proposed work, activity, use or encroachment being done in a City street, easement or right-of-way which affects pedestrian or vehicular traffic, shall require the submittal and approval of a Traffic Control Plan in accordance with Title XVII, General Engineering Standards. The person(s) performing such work shall maintain a copy of the approved Traffic Control Plan at the site of such work at all times during which any such work is being done.
(E) The Department may require additional conditions for the issuance of a permit as are applicable and necessary to meet specific situations, for public safety and to ensure compliance with this chapter and all other City, state or federal regulations.
(F) No substantial changes shall be made in the construction plans, location, dimensions, character or duration of the work, activity, use or encroachment as granted by the permit except upon written authorization of the City. Such changes made without prior authorization are made at the applicant’s risk. (Ord. 4121, 6-26-2001; Ord. 4504, 10-25-2005; Ord. 4981-1519, 6-7-2016; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022)
8-2-6 PERMITS:
(A) Every permit granted by the City for the making of any improvement shall be deemed to have been granted subject to the terms of this chapter and Title XVII, General Engineering Standards, Standard Details and the City Supplement to MAG, and shall remain with the property affected. Every such improvement shall be made under the direction of and/or to the satisfaction of the Public Works Director, or his designee. Depending upon the nature of the improvements, the City may require that the applicant for a permit hold the proper license or licenses from the Arizona Registrar of Contractors.
(B) All permits, to the extent possible, shall specify the time within which work, activity, use, encroachment or construction in a City right-of-way must be completed. All permits may be renewed or extended upon written request of the applicant and reasonable approval by the Public Works Department.
(C) The Public Works Director may require a financial assurance in accordance with the General Engineering Standards, Section 1.4, to assure that the work, if not completed in accordance with the approved plans and specifications, will be corrected to eliminate hazardous conditions and conform to the approved plans and specifications.
(D) No permit shall be granted for a use which would unduly interfere with the public works of the City, endanger the public or permanently restrict, block or interfere with traffic.
(E) Except for work of a utility with a franchise with the City, upon failure of the permittee to complete any work required by this chapter, applicable state or federal law, or by its permit within thirty (30) days after due notice and to the satisfaction of the City Engineer, the City may, at its option, cause such work to be done and the permittee shall pay to the City the cost thereof in the itemized amounts reported by the City Engineer to the permittee within thirty (30) days after receipt of such itemized report. Or, at the City’s option, the City may demand of the permittee the estimated cost of such work as estimated by the City Engineer, and such shall be paid by the permittee to the City within thirty (30) days after such demand. Upon award of any contract or contracts therefor, the permittee shall pay to the City, within thirty (30) days after demand, any additional amount necessary to provide for cost of such work. Upon completion of such work, the permittee shall pay to the City, or the City shall refund to the permittee, such sums so that the total received and retained by the City shall equal the direct cost to the City of such work. "Cost" as used herein shall include fifteen percent (15%) of other costs for the City’s overhead.
(F) Emergency Work. Nothing in this chapter shall be construed to prevent any person maintaining any pipe or conduit in any City street, highway, alley, easement, right-of-way or other public place by virtue of any law, ordinance or permit, from making such excavation as may be necessary for the public health and safety or preservation of property when such necessity arises during such hours as the offices of the City are closed; provided, that the person making such excavation shall apply for a permit therefor within four (4) business days after the offices of the City are first opened subsequent to the making of such excavation. (Ord. 4121, 6-26-2001; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022)
8-2-7 FEES:
Unless a different fee (or waiver thereof) is provided for in this chapter, a minimum fee of fifty dollars ($50.00) shall be paid prior to the issuance of any permits pursuant to this chapter, unless exempt by franchise agreement. (Ord. 4121, 6-26-2001; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022)
8-2-8 RESPONSIBILITY OF PERMITTEE:
(A) All work performed under a permit issued by the Public Works Department shall be to the satisfaction of the City and shall be in accordance with the terms and conditions of the permit and all adopted codes, standards, and specifications of the City including the regulations and specifications for pavement restoration; shall cause minimum interference with the proper and usual use of the City streets, alleys or easements; shall be completed within a reasonable time and shall be warranted by the permittee for a period of two (2) years from the time of final acceptance by the Public Works Department. In the event that any such work becomes unsatisfactory during the warranty period, the permittee shall immediately repair the unsatisfactory work as determined by the City, at the permittee’s own expense. In case the permittee is dilatory about repairing defective work during the guarantee period, the City shall make the necessary repairs at the expense of the person obtaining the permit for the work. In such event, the City shall charge the rate established by the Public Works Department for making such repair.
(B) No excavation shall be left unfilled or uncovered when trenching is unattended, except as allowed by the Public Works Department. Trenching shall not be excavated more than three hundred feet (300') in advance of laying any underground lines nor left unfilled for more than three hundred feet (300') where underground lines have been installed unless permission is granted by the Public Works Department to exceed these limits.
(C) All excavations crossing any City arterial or collector street shall be limited to the excavating in and the closing of only one (1) lane of traffic at a time. This provision may be modified, subject to the approval of the Public Works Department, to the extent that excavations may be made to more than one (1) lane of traffic; provided, that steel plates, sufficient to withstand the load of heavy traffic, are placed over those excavations made in excess of one (1) lane of traffic.
(D) Installation of underground service pipe or main pipe, conduit, direct buried cable or wire or other structures, except manholes, culverts and catch basins in any City right-of-way shall be in accordance with Title XVII, General Engineering Standards, Standard Details and the City Supplement to MAG.
(E) Notwithstanding the foregoing, permission for roadway pavement cuts shall not be granted within any City rights-of-way or roadways on any bituminous and/or concrete pavement structures that are less than five (5) years of age, unless allowed by Section 8-2-11.
(F) All work on the permittee’s infrastructure will be performed in compliance with Title XVII, General Engineering Standards, Standard Details and the City Supplement to MAG, and will follow good practices for the industry.
(G) When using a City right-of-way or easement, the permittee will ensure that the construction of the infrastructure and facilities do not impair the safety and function of the property, or the safety and convenience of other persons.
(H) The permittee shall provide reasonable advance notice to all affected residents prior to infrastructure construction or upgrade crews entering a City right-of-way in front of, or in the alley behind, a resident’s property. A notification plan will be created between the City and the permittee, during the permit process. If a resident is not available for personal contact, then a door hanger or other such printed notification will be left at the residence with contact information. The permittee shall not be required to provide such notice in emergencies or for normal infrastructure repair and maintenance work.
(I) Work hours within a City right-of-way shall be in accordance with Title V, Chapter 5. (Ord. 1338, 6-11-1979; amd. Ord. 1432 3-10-1980; Ord. 1952, 10-27-1987; Ord. 2279, 6-25-1991; Ord. 4504, 10-25-2005; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022)
8-2-9 RESPONSIBILITY OF PROPERTY OWNER; SEWER CONNECTION:
Notwithstanding any of the provisions of this chapter, it shall be the responsibility of the property owner to provide the maintenance or repair of that portion of the sanitary sewer connection serving the property and located within the City right-of-way or sanitary sewer easement from the edge of the City right-of-way or sanitary sewer easement to the point of connection with a sanitary sewer collector main. Said maintenance and repair shall require a permit and the paying of all fees thereof and compliance with all the provisions of this chapter. The responsibility of the property owner as herein defined shall be waived with respect to repairs to any portion of the sanitary sewer connection serving the property and located within the City right-of-way or sanitary sewer easement; provided, that the repairs to be made are the result of damage to the said sanitary sewer connection caused by other "persons" or "utility company" as defined in Section 8-2-1. (Ord. 1338, 6-11-1979; amd. Ord. 1432, 3-10-1980; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022)
8-2-10 CONSTRUCTION AND RELOCATION OF FACILITIES:
(A) Private contractors and/or property owners working in a City right-of-way shall comply with the terms of this chapter with the exception of subsection (B) of this section.
(B) Franchise Utilities:
1. Changes Required by Public Improvements. Subject to the terms of an applicable franchise, the licensee shall from time to time, as reasonably required by the City, protect, support, temporarily dislocate, temporarily or permanently remove or relocate, without expense to the City, any facilities installed, used or maintained under the license. If and when made reasonably necessary by any lawful change of grade, alignment, or width of any street and public way, by the City or made necessary by any other City public improvement project or alteration for a government function in, under, on, upon or about any street and City right-of-way or other public property.
2. There are some public utilities who have ownership or easement interests in property obtained prior to the City obtaining ownership interest in that same property. Nothing in this chapter shall extinguish such prior interests in such property.
3. Subject to the terms of an applicable franchise, any encroachment including but not limited to pipes, conduit, wire, cable, appurtenances or other structures or facilities installed or maintained in, on or under any City place, right-of-way or street, shall be relocated, at the sole expense of the licensee, as may be necessary to facilitate a public purpose or any City project. Such relocations shall be under the same terms and conditions as the initial installation allowed pursuant to the permit and license agreement. The Department will not exercise the right to require such relocation in an unreasonable or arbitrary manner.
4. Design Performance Criteria:
(a) Within thirty (30) days of written notification from the City, at thirty percent (30%) plan review, the licensee shall supply utility maps, in an electronic format to the City, of their facilities in the project area to the City to be integrated into the design plans for City projects.
(b) Within sixty (60) days of written notification from the City (which shall include a sixty percent (60%) plan set) the licensee shall either respond in writing that changes or replacements are not required or provide a preliminary design in electronic format to the City, identifying their utility upgrades and/or replacement needs within the project area.
(c) If upgrades, relocations and/or replacements are identified by the City or the licensee, at the completion of sixty percent (60%) plan review, the licensee shall provide a final design in an electronic format to the City, within ninety (90) days of written notification from the City, or within a mutually agreed upon time frame between the City and licensee.
5. Construction Performance Criteria:
(a) Within sixty (60) days of written notification from the City, or within a mutually agreed upon time frame between the City and licensee, the licensee shall commence construction of upgrades, relocations and/or replacements. Prior to the start of work, the licensee shall provide the City a preliminary construction schedule for review to achieve a mutually agreed upon completion date.
(b) The City shall have the right to specify the methods and materials of street construction, together with the horizontal and vertical location of any underground facility proposed by the licensee within any City property or right-of-way. The City shall also have the right to limit the work of the licensee to assure a minimum of inconvenience to the public. The licensee will be required to obtain permits from the City, allowing the licensee to work in a City right-of-way.
(c) The licensee shall complete the work within the agreed time specified on the accepted construction schedule or as revised and mutually agreed to by both parties. Delays to completion of the work within the time frame specified in the approved construction schedule (excluding weather days) shall result in monetary penalty from the licensee to the City in the amount of actual cost recovery due to contractual change orders associated with the delay. In the event there is a conflict between the provisions of this chapter and provisions contained in a franchise or license agreement granted by the City to an applicant the provisions of the agreement shall prevail.
(C) Emergency Work by the City. The City reserves the right to relocate or protect in place, any portion of the permittee’s equipment and facilities as may be required in any emergency as determined by the City without liability for interruption of service, with the exception of franchise utility infrastructure. However, prior to taking any actions pursuant to this subsection, the City shall provide, if feasible, reasonable notice to the permittee or licensee of the emergency to allow the permittee or licensee the opportunity to protect or repair the permittee’s or licensee’s facilities involved in the emergency. (Ord. 2022-1789, 6-14-2022)
8-2-11 PAVEMENT CUTS IN NEW STREETS:
All sidewalk and pavement cut activity shall have an approved permit. If a proposed activity, use or encroachment includes cutting into, attachment to or any break in the sidewalk or street pavement, the permittee shall be required to pay a pavement damage fee established by the City and to restore the pavement in accordance with this chapter and all other City standards and specifications. Other fees, charges or taxes may be imposed depending on the use made of a City street or highway.
(A) Permission to excavate in new streets shall not be granted for two (2) years after completion of street construction, reconstruction or rehabilitation. Utilities shall determine alternate methods of making necessary repairs to avoid excavating in new streets. Exceptions to the above are as follows:
1. Emergency which endangers life or property;
2. Interruption of essential utility service;
3. Where no other feasible means of providing service exists.
For the purposes of the section, a street is considered "new" when it is first constructed, when it is reconstructed or when it is rehabilitated. Rehabilitation shall include mill and overlay or other similar roadway improvement work that physically modifies the surface of the roadway prior to applying new roadway surface or other similar work as determined by the City Engineer. Reconstruction shall mean completely rebuilding all the lanes of the street by removing the pavement, recompacting the sub-base and restoring the base material and then completely repaving for a distance approved by the City Engineer. The Director of Public Works shall determine the date of completion for new, reconstructed or rehabilitated streets.
(B) In addition to the payment of the pavement restoration fee, a condition of the permit for cutting the pavement of a street within one (1) year of construction, reconstruction or rehabilitation, shall be that the permittee rehabilitate such street by mill and overlay/inlay, for a minimum of the full width of all lanes impacted by the cut(s) (outside lane includes to the curb) and for arterial streets extending a minimum length of fifty feet (50') both directions from the area of the cut(s) and for all other streets extending a minimum length of twenty-five feet (25') both directions from the area of the cut(s), all as more specifically directed by the City Engineer. Provided, however, for pavement cuts smaller than two (2) square feet, the requirement to rehabilitate the street by mill and overlay/inlay shall not apply. Pavement restoration shall be in accordance with Title XVII, General Engineering Standards.
(C) Any cutting into, attachment to or any break in the sidewalk shall require full panel replacement in accordance with Title XVII, General Engineering Standards. (Ord. 2022-1789, 6-14-2022)
8-2-12 PAVEMENT RESTORATION FEE:
(A) Whenever any permit is required to cut into, open, bore, attach to, or make any break or disturbance to the street pavement of any street within the City, the permittee shall, in addition to the repairs required by this chapter, pay to the City the pavement restoration fee.
(B) The pavement restoration fee shall be paid at the time a permit is issued. In the event changes or amendments to the permit are required, which would result in a change in the amount of the pavement restoration fee, the fee shall be adjusted to reflect actual work performed.
(C) Pavement restoration fees shall be determined as follows:
|
Pavement Age: <12 months (0 – 1 years) |
||
|---|---|---|
|
Cut size |
< 200 SY |
> 200 SY |
|
Fee |
$1,800 + $20/SY |
$1,800 + $18/SY |
|
For cuts within the first year, the fee is in addition to the mill and overlay. |
||
|
Pavement Age: 12 months – 24 months (1 – 2 years) |
||
|---|---|---|
|
Cut size |
< 200 SY |
> 200 SY |
|
Fee |
$1,600 + $20/SY |
$1,600 + $18/SY |
|
Pavement Age: 24 months – 36 months (2 – 3 years) |
||
|---|---|---|
|
Cut size |
< 200 SY |
> 200 SY |
|
Fee |
$1,300 + $15/SY |
$1,300 + $14/SY |
|
Pavement Age: 36 months – 60 months (3 – 5 years) |
||
|---|---|---|
|
Cut size |
< 200 SY |
> 200 SY |
|
Fee |
$1,000 + $10/SY |
$1,000 + $8/SY |
(Ord. 2022-1789, 6-14-2022)
8-2-13 INSPECTION OF WORK:
(A) The City may make any inspections deemed necessary in connection with permits issued under this chapter. During the construction, the City will inspect all trenching, backfilling, street or pavement cuts, and other work as deemed necessary by the City Engineer.
(B) In addition to obtaining a permit pursuant to this chapter, before beginning any work and/or excavation in any City right-of-way, sidewalk, curb, gutter or driveway approach, making, placing or causing an obstruction in any City right-of-way, the permittee shall notify the City at least twenty-four (24) hours in advance of the exact date and time work will commence. Upon completion of all work authorized in the permit, the permittee shall notify the City.
(C) No work shall be deemed to be completed until notification of completion is given and the work is approved by the City. (Ord. 2022-1789, 6-14-2022)
8-2-14 CEASE AND DESIST ORDERS:
Whenever any work is being done contrary to the provisions of this chapter, the City Engineer may order the unauthorized work stopped by notice in writing served on any person engaged in the doing or causing such unauthorized work to be done, and any such person shall forthwith stop such unauthorized work. Any person performing work in a City right-of-way shall have a copy of a valid permit issued by the City at the site and make such permit available for inspection by the City at all times work is being performed or property or equipment is located in a City right-of-way. (Ord. 2022-1789, 6-14-2022)
8-2-15 COMMENCEMENT OF WORK:
Every permit for any improvement shall become void unless the improvement is commenced within six (6) months from the date of issuance of such permit. The permittee shall complete the work or use authorized by the permit within the time specified in the permit. Where an improvement, use or encroachment involves a permanent installation, conditions so specified in the permit, license or other agreement with the City shall remain in effect until the improvement, installation or use is removed. (Ord. 1338, 6-11-1979; amd. Ord. 1432, 3-10-1980; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022. Formerly 8-2-10)
8-2-16 CITY NOT LIABLE:
The City shall not be liable or responsible for any act or damage that may occur in the performance of any work by the holder of a permit, and the issuance of a permit by the City shall be deemed an agreement on the part of the permittee to indemnify the City and hold the City harmless against any and all liability, loss, cost, damage or expense which may occur to the City because of the negligence or misconduct in the performance of any work by the permittee. (Ord. 1338, 6-11-1979; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022. Formerly 8-2-11)
8-2-17 PENALTIES:
It shall be unlawful and a misdemeanor for any person to violate any of the requirements or provisions contained in this chapter. Any person convicted of a violation of any section of this chapter shall be punished as provided in Section 1-3-1.
Each day that a violation is permitted to exist constitutes a separate offense. The imposition of any sentence shall not exempt the offender from compliance with the requirements of this chapter. For the purposes of this chapter, a "person" means any individual or his agent, firm, partnership, association, corporation or agent of the aforementioned groups.
In addition to the penalties provided herein, any person who commences or causes to be commenced any work, or places, maintains or causes to be placed or maintained any encroachment or obstruction, without a proper permit as required by this chapter shall pay double permit fees for any work which was unlawfully commenced, if such permit is subsequently issued by the City. Furthermore, any person found in violation of this chapter shall also be required to make restitution to the City of Prescott for any costs incurred by the City to remove or remediate said violation.
A violation of any provision or section of this chapter is further declared to be a public nuisance and the City Attorney may, upon order of the City Council, or on his own initiative, immediately commence any necessary civil actions or proceedings for the abatement, enjoinment or removal thereof in the manner provided by law of any such violation. (Ord. 1338, 6-1979; amd. Ord. 1834, 9-23-1986; Ord. 4107, 5-8-2001; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022. Formerly 8-2-12)
8-2-18 ABANDONMENT:
(A) Any person who desires that the City abandon any portion of any public street, highway or alley, or other platted or written easement duly recorded in the office of the Yavapai County recorder which has been dedicated to, or acquired by, the City shall file a written request for abandonment with the City Clerk. Said request shall be accompanied by a nonrefundable thirty-dollar ($30.00) fee to help defray the costs of processing the request, which includes, but is not limited to, the preliminary investigation and consideration by staff and Council of said request. The City shall use its best efforts to notify affected property owners of said request.
In the event the City Council approves an abandonment, any ordinance approving said abandonment shall not be effective nor any action relating thereto recorded with the county recorder until a processing fee of two hundred thirty-five dollars ($235.00) is paid to the City, to help defray the costs of processing the abandonment, preparation and publication of the ordinance and any associated documents, and recordation costs.
In addition to the foregoing, in the event that the City Council determines that consideration is required, said ordinance of abandonment will not become effective, nor shall any action relating thereto be recorded, until all consideration is paid to the City.
(B) Public Utility Abandonment: Removal and/or abandonment of any existing utilities shall be identified during sixty percent (60%) design review. City and utility shall agree upon removal and/or abandonment during ninety percent (90%) plan review.
1. Utility facilities may be considered for abandonment, in the right-of-way, if one (1) of the following conditions apply:
(a) The removal of the utility would disrupt traffic or create a threat to public safety;
(b) Utility submits justification to the City that the cost of the removal would exceed the public benefit;
(c) The abandoned facility would not conflict with any current or planned City improvements;
(d) Removal of the utility would involve cutting any pavement less than five (5) years old.
2. Requirements for abandoned utilities include:
(a) The utility shall maintain abandoned facilities, as required by laws, guidelines, and regulations adopted by regulatory agencies. Utility company is also required to own, map, and locate all abandoned facilities. The utility shall purge, cap, or plug the ends of all facilities approved for abandonment.
(b) Abandoned facilities must maintain a separation distance of a minimum of five feet (5') horizontal and two feet (2') vertical between abandoned facility and any new or proposed structure.
(c) In the event of a conflict between a City project and an abandoned utility, the utility shall remove or pay for the removal of the facility.
(C) Non-Public Utility Abandonment: Abandonment shall be presumed for non-utility if the permittee does not remove its property, equipment, structures, facilities, or other property placed in the right-of-way, within one hundred eighty (180) days after expiration or termination of the permit or license. The permit or license may specify a different time period after which abandonment may be presumed. If the permittee abandons use of structures, cable, equipment, or other facilities placed in a City right-of-way pursuant to the permit, then at the City’s option, the City may require the permittee to remove all such structures. (Ord. 1660, 1-1984; amd. Ord. 3178, eff. 4-21-1994; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022. Formerly 8-2-14)
8-2-19 SEVERABILITY:
The provisions of this chapter are declared to be severable and if any section, sentence, clause or phrase of this chapter shall for any reason be held to be invalid or unconstitutional such decision shall not affect the validity of the remaining sections, sentences, clauses and phrases of this chapter but they shall remain in effect, it being the legislative intent that this chapter shall stand notwithstanding the invalidity of any part. (Ord. 1878, 3-24-1987; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022. Formerly 8-2-15)
8-2-20 SALE OF UNNECESSARY PUBLIC WAYS:
(A) The City may sell excess City rights-of-way, any portion of any public City street, roadway, highway or alley, other platted or written easements duly recorded in the office of the Yavapai County recorder which have been dedicated to, or acquired by, the City for public purposes, determined not to be needed or likely to be needed within a reasonable future time. Each sale shall be made on the conditions as the City Council may prescribe to the highest responsible bidder after published notice of the sale in accordance with the City Charter; provided, that:
1. Purchaser shall pay for costs of publication, appraisal, escrow, title search, recordation, and all other costs related to said sale.
2. City shall sell said real property by quitclaim deed.
3. The City may prescribe such other terms and conditions as in its sole discretion shall determine, including, but not limited to, those necessary for the protection and benefit of abutting owners.
4. The City shall reserve existing public easements for sewer, gas, water or similar pipelines and appurtenances and for canals, laterals, ditches and appurtenances, and for electric, telephone and similar lines and appurtenances.
5. If the purchaser of said real property is an abutting owner, title shall vest, subject to the same encumbrances, liens, limitations, restrictions and estates as exist on the purchaser’s abutting land.
6. The City may obtain appraisals, hold hearings, and take other similar action in connection with disposition of excess roadways when it deems such action necessary or advisable.
(B) In no event shall the City sell excess rights-of-way so as to leave any land adjoining the roadway right-of-way without an established public road, street or other public way connecting the land with another established public street unless there is expressly reserved in the conveyancing instrument roadway rights of ingress and egress for public and emergency vehicles, all property owners, their guests and invitees and persons lawfully conducting business on the land.
(C) Notwithstanding the foregoing, the City may trade unnecessary public ways as set forth in subsection (A) of this section, conditioned the land being traded for is substantially equivalent in value or size, and subject to the provisions in subsections (A)1, (A)3, (A)4 and (A)6 of this section. (Ord. 1890, 4-28-1987; Ord. 2279, 6-25-1991; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022. Formerly 8-2-16)
8-2-21 BUS BENCHES:
Notwithstanding anything to the contrary herein, bus benches shall be allowed within public rights-of-way, subject to the following limitations:
(A) An annual permit for each and every bus bench shall be issued by the Public Works Director. An annual fee of twenty-five dollars ($25.00) shall be levied for each location for which a permit is issued.
(B) Permits for bus benches may only be issued to a provider of public mass transit within the City limits, and upon presentation of liability insurance in an amount of not less than one million dollars ($1,000,000.00), naming the City of Prescott as an additional insured, which insurance must be maintained in full force and effect for as long as the benches permitted are within the City right-of-way.
(C) The number and location of each bus bench is subject to the approval of the Public Works Director, in his sole discretion; provided, however, that a bus bench may only be located at a duly designated bus stop in accordance with Section 9-1-10(B).
(D) Any permit issued hereunder is conditioned upon the permittee maintaining the bus benches in a clean, safe and structurally sound condition, so as not to create a visibly deteriorated or blighted appearance.
(E) Any signage on a bus bench shall consist of the following dimensions: The horizontal dimension of the sign shall not extend beyond the actual seating dimensions of the bench, but in no event to exceed eight feet (8'); the vertical dimension of the sign shall commence at the seat of the bench and shall extend no further than forty-four inches (44") above the ground. The following types of signs shall be specifically prohibited: illuminated signs, animated signs, and any sign specifically prohibited under Section 6.12(9) of the Prescott land development code.
(F) Any permit issued hereunder is revocable at will by the City Council. In the event of revocation, if the permittee does not remove any benches for which a permit has been revoked pursuant to this subsection within ninety (90) days after receiving notice thereof, the Public Works Director may effectuate the removal of said benches, the cost of which removal shall be assessed against the permittee, and may be recovered by the City in a civil action instituted in the appropriate court of law.
(G) Any permits issued hereunder may be revoked by the Public Works Director in the event of the failure of the permittee to correct any violations of this section within ten (10) days of receiving notice thereof. In the event of revocation, if the permittee does not remove any benches for which a permit has been revoked pursuant to this subsection within ten (10) days after receiving notice thereof, the Public Works Director may effectuate the removal of said benches, the cost of which removal shall be assessed against the permittee, and may be recovered by the City in a civil action instituted in the appropriate court of law. (Ord. 687, 11-9-1964; Ord. 3094, eff. 5-25-1993; Ord. 3334, eff. 5-11-1995; Ord. 4504, 10-25-2005; Ord. 4981-1519, 6-7-2016; Ord. 2022-1789, 6-14-2022. Formerly 8-2-17)
8-2-22 USE OF RIGHT-OF-WAY FOR SMALL CELL WIRELESS FACILITIES; MONOPOLES; AND UTILITY POLES FOR COLLOCATION:
(A) Use of Right-of-Way: Notwithstanding anything to the contrary herein, small wireless facilities, monopoles, and utility poles for collocation of wireless facilities shall be allowed within public rights-of-way, subject to the following limitations:
1. This chapter applies to the construction, modification, removal and operation of small wireless facilities, monopoles and utility poles installed in the public right-of-way.
2. This chapter does not apply to video service systems, wireline services, microwave, macro towers, and other wireless backhaul facilities.
3. All references to small wireless facilities in this chapter shall refer only to small wireless facilities in the right-of-way and not small wireless facilities located anywhere outside of the right-of-way.
4. No person shall install, construct, modify, or otherwise place any small wireless facility within the public right-of-way except pursuant to the provisions of this chapter.
(B) Restrictions:
1. A small wireless facility, including associated poles, equipment and structures, installed under this section may not:
(a) Obstruct or hinder the usual travel or public safety on a right-of-way;
(b) Be located within two feet (2') of a curb; provided, that this restriction does not apply to an existing utility pole that is used for collocation unless the pole is proposed to be replaced;
(c) Utilize guy wires to support; provided, that this restriction does not apply to an existing utility pole with a guy wire;
(d) Interfere with or impair the vision of operators of vehicles at street intersections or interfere with or impair any aspect of any sight triangle; or
(e) Obstruct, damage, or interfere with:
(1) Another utility facility in a right-of-way; or
(2) A utility’s use of the utility’s facility in a right-of-way.
2. New wireless facilities in the right-of-way may not extend more than ten feet (10') above an existing utility pole or wireless support structure in place as of the effective date of the ordinance codified in this section or above the height permitted for a new utility pole or wireless support structure under this section.
3. Each new or modified utility pole and wireless support structure installed in the right-of-way may not exceed the greater of ten feet (10') in height above the tallest existing utility pole that is in place as of the effective date of the ordinance codified in this section that is located within five hundred feet (500') of the new utility pole and that is in the same right-of-way or fifty feet (50') above ground level.
4. Construction and maintenance of any pole, equipment or small wireless facility by a wireless provider shall comply with all applicable legal obligations for the protection of underground and overhead utility facilities.
5. A wireless provider shall indemnify, save harmless, and defend City, its officers and employees from and against all losses, claims, counterclaims, demands, actions, damages, costs, charges, and causes of action of every kind or character, including attorneys’ fees, arising out of or in connection with such provider’s wireless facilities or use of the public way, unless and to the extent caused by the City’s negligence.
6. A wireless provider is solely responsible for establishing electrical power service for its small wireless facilities and for the payment of all electrical utility charges associated with the small wireless facility.
7. All small wireless facilities and wireless provider-owned structures shall be maintained by the wireless provider in a clean and good condition, free of graffiti, rusting, excessive dirt, and peeling paint. The City shall have the authority to conduct inspections of the small wireless facilities and structures at any time to determine whether such facilities and structures comply with the requirements of this section.
(C) Permits, When Required:
1. An applicant shall obtain a permit prior to:
(a) Collocating a small wireless facility in a public right-of-way;
(b) Installing a new, modified, or replacement utility pole, authority pole or wireless support structure associated with a small wireless facility in a right-of-way; or
(c) Permanently removing a small wireless facility.
2. Exceptions to Permitting: Unless the work requires the closing of sidewalks or vehicular lanes in the public right-of-way, an application for a permit is not required for:
(a) Routine maintenance of a small wireless facility or support structures for a small wireless facility;
(b) The replacement of one (1) small wireless facility with another small wireless facility of substantially similar or smaller size;
(c) The installation, placement, operation or maintenance of a micro wireless facility that is strung on a cable between two (2) existing utility poles in compliance with the National Electrical Safety Code; or
(d) Nonsubstantial modifications.
3. A wireless provider shall give notice to the City of an activity described in subsection (C)2 of this section at least five (5) business days prior to conducting the activity.
(D) Design Standards Applicable to All Small Wireless Facilities:
1. Integrated Design Consideration: Small wireless facilities, including equipment associated with the small wireless facility, shall be integrated into the wireless support structure, utility pole or authority pole where possible and generally shall be installed in a manner minimizing the visual impact whether the small wireless facility is collocated or is placed on its own pole:
(a) Small wireless facilities should not be readily noticed;
(b) All equipment, including electric meters, should be located on or within the pole unless prohibited by the owner of the pole, in which case an alternative power meter box must be approved by the Engineering Department;
(c) A small wireless facility and associated equipment located on the exterior of a pole shall be enclosed in a shroud or enclosure painted to match the existing pole color;
(d) All small wireless facilities shall be constructed out of or finished with nonreflective materials (visible exterior surfaces only);
(e) For metal poles:
(1) Cable runs should be inside of the pole to the maximum extent practicable;
(2) Equipment associated with the small wireless facility should, where practicable, be enclosed at the base of the wireless support structure in a space not more than twenty-four inches (24") in diameter and not more than five feet (5') eight inches (8") in height; and
(3) Poles used for collocation shall be designed to separate different pole users, such as through dual chamber or tri-chamber design;
(f) If equipment cannot be installed inside of the pole, pole attachments within fifteen feet (15') of ground level shall be positioned on the side of the pole facing away from approaching traffic in the travel lane closest to the pole; provided, that if the equipment would extend over a sidewalk or road surface, the equipment shall be positioned in a way to avoid such encroachment;
(g) Wireless facility equipment on the outside of a utility pole shall be placed at least eight feet (8') above the public way, unless otherwise permitted by City;
(h) Shall not be lighted or marked unless required by the Federal Communications Commission (FCC), the Federal Aviation Administration (FAA), or other applicable governmental authority; and
(i) Signs located at the small wireless facility shall be limited to ownership and contact information, FCC antenna registration number (if required) and any other information as required by applicable governmental authority. Commercial advertising is strictly prohibited.
2. Antennas:
(a) Each individual antenna shall be located entirely within a shroud enclosure of not more than six (6) cubic feet in volume. All antennas and exposed elements associated with the small wireless facility shall not exceed a combined space of six (6) cubic feet.
(b) The diameter of the antenna or antenna enclosure should generally not exceed the diameter of the top of the wireless support structure pole, and to the maximum extent practical should appear as a seamless vertical extension of the pole.
(c) In no case shall the maximum diameter of the shroud be wider than one and one-half (1 1/2) times the diameter of the top of the pole.
(d) Where maximum shroud diameter exceeds diameter of the top of the pole, the shroud shall be tapered to meet the top of the pole.
(e) Unless technologically infeasible or otherwise appropriate based on neighborhood context, all antennas shall be mounted to the top of the wireless support structure pole, aligned with the centerline of the structure.
(f) Antennas shall be generally cylindrical in shape.
(g) Antennas shall be completely housed within a cylindrical shroud that is capable of accepting paint to match the wireless support structure.
3. Height Limitations: Except for small wireless facilities on a residential street:
(a) The height of a structure used for collocation of a small wireless facility, including the wireless facility, measured at the base of the structure shall not exceed the lesser of:
(1) The minimum height needed for the operation of the wireless facility; or
(2) For a new or modified utility pole or authority pole, fifty feet (50') above ground level together with the minimum antenna height necessary for one (1) antenna contained within any approved concealment feature.
(b) A utility pole existing on or before March 12, 2019, that is used for the collocation of a small wireless facility may, on only one (1) occasion, be increased by up to ten feet (10') to allow for the attachment of the small cell wireless antenna together with any approved concealment feature.
(c) A monopole shall not exceed fifty feet (50') in height, including any antenna.
4. If a ground-mounted or buried equipment cabinet is proposed, the cabinet or vault:
(a) May be placed above ground in a landscaped park strip or, if there is no landscaped park strip, it shall be placed underground;
(b) Shall meet the same separation standards as required for a new utility pole from trees and drive approaches; and
(c) For an above-ground cabinet:
(1) Shall be secured to a concrete foundation or slab with a breakaway design in the event of collisions; and
(2) Shall not exceed three feet (3') in height, unless special conditions exist that would result in the cabinet encroaching into the sidewalk or to within two feet (2') of the curb.
(E) Design Standards Applicable to Collocated Small Wireless Facilities: Collocated small wireless facilities shall, in addition to the requirements of subsection (D) of this section, meet the following design standards:
1. To the maximum extent practicable, all small cell facilities, associated equipment and cabling shall be completely concealed from view within an enclosure.
2. Where equipment cannot reasonably be incorporated into the base of the authority pole in accordance with subsection (D)1(e) of this section, it may be installed within:
(a) An equipment enclosure mounted to the authority pole; or
(b) A ground-mounted cabinet physically independent from the authority pole.
3. Equipment enclosures mounted to an authority pole:
(a) Shall not protrude more than eighteen inches (18") beyond the face of the pole to the outermost portion of the enclosure.
(b) Should be installed as flush to the pole as practical. In no case shall an enclosure be installed more than four inches (4") from the wireless support structure pole.
(c) Where multiple enclosures are proposed on a wireless support structure pole, the enclosures shall be grouped as closely together as possible on the same side of the pole.
(d) Small wireless facility equipment enclosures should be the smallest size practicable to house the necessary facilities and equipment.
(e) Small wireless facility equipment enclosures shall be cylindrical or rectangular in shape, and should generally be no wider than the maximum outside diameter of the pole to which it is attached, to the maximum extent possible.
(f) Attachment: The shroud enclosure shall be securely strapped to the wireless support structure pole using stainless steel banding straps. Through-bolting or use of lag bolts on publicly owned wireless support structures is prohibited.
(F) Design Standards Applicable to Small Wireless Facilities on New Wireless Support Structures: If an applicant proposes to install a new wireless support structure utility pole in connection with a small wireless facility, the pole and facilities shall, in addition to the requirements of subsection (D) of this section, meet the following design standards:
1. Design of the pole shall be cylindrical and shall match the aesthetics of existing streetlight poles and streetlights installed adjacent to the pole.
2. Together with the small wireless facility components shall be sized to be visually pleasing.
(a) For a pole to be considered visually pleasing, the transition between the equipment cabinet and upper pole should be considered;
(b) The equipment associated with the small wireless facility shall be enclosed at the base of the wireless support structure in a space described in subsection (D)1(e) of this section; provided, that a separate equipment cabinet or vault not exceeding twenty-eight (28) cubic feet in size may be used if the equipment cannot reasonably be contained in the space allowed;
(c) A decorative transition shall be installed over the equipment cabinet upper bolts, or decorative base cover shall be installed to match the equipment cabinet size and shall taper between different pole diameters, with no horizontal or flat spaces greater than one and one-half inches (1 1/2");
(d) The upper pole shall be scaled to one-half (1/2) to three-quarters (3/4) the size of the equipment cabinet, with a ten inch (10") minimum outer diameter at the widest portion of the pole;
(e) All hardware connections shall be hidden from view;
(f) No horizontal flat spaces greater than one and one-half inches (1 1/2") shall exist on the equipment cabinet to prevent cups, trash, and other objects from being placed on the equipment cabinet;
(g) Each pole component shall be architecturally compatible to create a cohesive aesthetic; and
(h) The pole shall be made of steel and shall be powder coated black.
3. Shall not be located within one hundred feet (100') of the apron of a fire station or other adjacent emergency service facility.
4. Shall be placed in alignment with existing trees, utility poles, and streetlights.
5. Shall be located such that it in no way impedes, obstructs, or hinders the usual pedestrian or vehicular travel, affects public safety, obstructs the legal access to or use of the public right-of-way, violates applicable law, violates or conflicts with public right-of-way design standards, specifications, or design district requirements, violates the Federal Americans with Disabilities Act of 1990, or in any way creates a risk to public health, safety, or welfare.
6. Shall be located at intersecting property lines as much as possible.
7. Whenever possible, shall be located on the secondary street.
8. Shall be located a minimum of fifteen feet (15') away from trees or outside of the tree drip line, whichever is greater, to prevent disturbance within the critical root zone of any tree.
9. Shall be located at least five feet (5') away from the widest part of an alley or drive approach, including any flare associated with the approach.
10. When located adjacent to a commercial establishment, such as a shop or restaurant, care should be taken to locate the pole such that it does not negatively impact the business.
(a) Shall not be located in front of storefront windows, primary walkways, primary entrances or exits, or in such a way that it would impede a delivery to the building.
(b) Should be located between properties as much as possible.
(G) Design Standards Applicable to Decorative Poles, Historic Districts and Central Business District: Small wireless facilities located on decorative poles or in a historic district or the central business district shall, in addition to any other requirements of this section, meet the following design standards:
1. Decorative Poles: If necessary to collocate a small wireless facility, a wireless provider may replace a decorative pole, if the replacement pole reasonably conforms to the design aesthetic of the displaced decorative pole as approved by the Planning Manager. A replacement pole does not reasonably conform to the design aesthetic if it extends the current pole height by more than twenty-five percent (25%).
2. Historic and Central Business Districts: Within a historic district or central business district:
(a) A wireless provider shall participate in a preapplication meeting with the City’s planning staff and obtain design approval from the City before collocating a new small wireless facility or installing a new utility pole in an area that is zoned or otherwise designated as a historic district or the central business district.
(b) City’s preference in historic districts and the central business district is for small wireless facilities to be located on traffic signal poles at intersections.
(c) The City may require a reasonable, technically feasible, nondiscriminatory, or technologically neutral design or concealment measure, unless the facility is excluded from evaluation for effects on historic properties under 47 CFR Section 1.1307(a)(4).
(d) All small wireless facilities shall, to the extent possible, use design techniques including, but not limited to, the use of materials, colors, textures, screening, undergrounding, or other design options that will blend the small wireless facilities to the surrounding natural setting and built environment. Design, materials and colors of small wireless facilities shall be compatible with the surrounding environment. Designs shall be compatible with structures and vegetation located in the right-of-way and on adjacent parcels.
(e) Should the Planning Manager determine that such design meets the intent of this code and the community is better served thereby, the design shall include the use of camouflage measures such as manmade trees, clock towers, bell steeples, light poles, traffic signals, buildings, and similar alternative design mounting structures that are compatible with the natural setting and surrounding structures, and conceal the presence of antennas or poles so as to make them architecturally compatible with the surrounding area pursuant to this chapter.
(f) A design or concealment measure described in subsection (G)2(e) of this section may not:
(1) Have the effect of prohibiting a provider’s technology; or
(2) Be considered a part of the small wireless facility for purposes of the size parameters in the definition of a small wireless facility.
(H) Undergrounding:
1. A wireless provider will place newly constructed lines and cables underground whenever practicable when building in:
(a) New residential subdivision areas where other utilities have been placed underground;
(b) Within the central business district of the City; and
(c) Within areas where other utilities have been located underground.
2. A wireless provider shall locate wires, cables, or other facilities that are not required to be above ground underground.
3. Any request by a wireless provider for location of any overhead or aerial facilities (other than the antennas or other facilities required to remain above ground in order to be functional) shall be considered by City in accordance with applicable rules and regulations.
(I) Application Process:
1. Applications for the installation or collocation of a small wireless facility shall be filed with the Public Works Department on a form or forms to be furnished by the Public Works Department.
2. All applications shall contain the following:
(a) The application form shall be signed by the applicant or its authorized representative;
(b) The name, address, telephone, facsimile number, and email address of the applicant; where an applicant is not the owner of the utility pole to be installed, maintained or repaired in the public way, the application also shall include the name, address, telephone, facsimile number and email address of the owner;
(c) A description of the location, purpose, method of the proposed work, and surface and subsurface area to be affected;
(d) A plan showing the dimensions of any excavation and the facilities to be installed, maintained, or repaired in connection with the work, and such other details as the City Engineer may require;
(e) Construction drawings which demonstrate the application meets the minimum requirements of this chapter, including:
(1) A scaled site plan, rendering or photo simulation, scaled elevation view and other supporting drawings and calculations, showing the location and dimension of all improvements; and
(2) Sufficient information to determine compliance with the standards and requirements of this chapter, specifically including information concerning structure height and location within the right-of-way, compliance with the City’s intersection and driveway sight distance standards, and compliance with the Americans with Disabilities Act;
(f) The appropriate application fee as set forth in subsection (K) of this section;
(g) An affidavit or attestation that the applicant or, if the applicant does not provide wireless services, a wireless service provider will provide wireless service using the small wireless facility and that the installation or collocation of the small wireless facility shall be completed within three hundred sixty (360) days after the day on which the City issues a right-of-way permit except in the case that:
(1) The City and the applicant agree to extend the three hundred sixty (360) day period; or
(2) Lack of commercial power or communications transport infrastructure to the site delays completion;
(h) If the applicant does not provide wireless service to an end user associated with the small wireless facility or facilities to be installed, maintained, or repaired, the applicant must demonstrate in a form and manner specified by the City Engineer that the applicant is authorized to act on behalf of a wireless service provider;
(i) An affidavit or attestation that each proposed small wireless facility, pole, and associated equipment is eligible for an exemption from environmental or historical assessment under 47 CFR Section 1.1312(e) or, if not exempt, evidence of compliance with such required assessment;
(j) An affidavit or attestation from an Arizona licensed engineer that the proposed wireless facility will be in compliance with the radio frequency emissions limits established by the FCC;
(k) The proposed start date of work;
(l) The proposed duration of the work, which shall include the duration of the restoration of the right-of-way physically disturbed by the work;
(m) Written certification that all material to be used in the work and restoration of the right-of-way will be on hand and ready for use so as not to delay the work and the prompt restoration of the public way;
(n) For an application that proposes collocation of the small wireless facility:
(1) An industry-standard pole load analysis indicating that the structure on which the wireless facilities will be mounted will safely support the load;
(2) Evidence that the applicant has permission to collocate the proposed small wireless facility on the pole; and
(3) If a small wireless facility cannot be safely installed on the respective structure, the applicant shall either replace the structure with a compliant structure of the same type, or propose a new location;
(o) For an application that proposes use of a decorative pole or placement of a small wireless facility in the historic district or central business district, a copy or other documentation that the applicant has complied with subsection (G) of this section;
(p) Written certification that the applicant and the wireless service provider are in compliance with all terms and conditions of this chapter, the orders, and all applicable rules and regulations of the City Engineer, and that the applicant and owner are not subject to any outstanding assessments, fees or penalties that have been finally determined by the City;
(q) Evidence that the applicant has posted with the City a general liability insurance policy, in an amount of not less than one million dollars ($1,000,000.00) per occurrence/two million dollars ($2,000,000.00) in the aggregate, naming the City of Prescott as an additional insured. The requirement for insurance shall remain in full force and effect so long as the wireless facility or similar improvements remain in the public right-of-way;
(r) Certification of the applicant’s and owner’s financial ability to compensate the City for the use of the public way during the term of the respective franchise agreement or master license agreement;
(s) Any other information that may reasonably be required by the City Engineer.
3. After an application has been approved, the applicant shall obtain any required permits, including right-of-way, excavation or electrical permits, prior to commencing installation or construction of the small wireless facility.
(J) Procedure for Administrative Review of Applications:
1. City shall review a complete application, including a consolidated application for small wireless facilities, and approve or deny the application within the time frames and subject to the standards contained in A.R.S. Title 11, Chapter 13, Article 11, Annotated §§ 11-1801 through 11-1808.
2. If construction of an approved small wireless facility is not started within three hundred sixty (360) days after an approved permit is issued, the approval shall lapse and a new application will be required for the designated location.
(K) Fees:
1. A wireless provider is subject to the following fees and conditions for the right to use and occupy the right-of-way:
(a) The wireless provider shall pay to the City an annual fee of fifty dollars ($50.00) annually for each small wireless facility located in the City.
(b) The annual fee, together with the fee described in subsection (K)3 of this section, shall be paid on or before December 31st, with the fee for any new small wireless facility installed in the prior year prorated by the number of months after the facility has been approved. Upon written request by City to the wireless provider, payments shall be made on a monthly basis.
2. With each application to locate a small wireless facility within the City, an applicant shall pay an application fee of:
(a) One hundred dollars ($100.00) per small wireless facility (up to five (5)), and fifty dollars ($50.00) for each additional on the same application where the application requests collocation of the facility; or
(b) Two hundred fifty dollars ($250.00) per small wireless facility on the same application where the application requests the installation, modification or replacement of a new or existing wireless support structure associated with the facility.
3. The wireless provider shall pay the City an annual fee for each collocation on an authority pole in the amount of fifty dollars ($50.00) per pole.
4. Other Fees: A wireless provider or applicant shall pay all other applicable fees established by City, specifically including but not limited to electrical permit fees and right-of-way permit fees prior to installing an approved small wireless facility in the right-of-way.
(L) Damage and Repair:
1. If a wireless provider’s activity disrupts or causes damage to a right-of-way, the wireless provider shall restore or repair the right-of-way to substantially the same condition as before the disruption or damage and in accordance with City’s engineering standards.
2. If a wireless provider fails to make a repair required by the City under subsection (L)1 of this section within a reasonable time after written notice, the City may:
(a) Make the required repair; and
(b) Charge the wireless provider the reasonable, documented, actual cost for the repair.
3. If the damage described in subsection (L)1 of this section causes an urgent safety hazard, the City may:
(a) Immediately make the necessary repair; and
(b) Charge the wireless provider the reasonable, documented, actual cost for the repair.
(M) Removal of Small Wireless Facilities:
1. Abandoned System: In the event that: (a) the use of any portion of a small wireless facility is discontinued for a continuous period of twelve (12) months, and thirty (30) days after no response to written notice from the City to the last known address of the wireless provider; or (b) any small wireless facility has been installed in the right-of-way without complying with the requirements of this section, a wireless provider shall be deemed to have abandoned such small wireless facility.
2. Removal of Abandoned Facility: The City, upon such terms as it may impose, may give a wireless provider written permission to abandon, without removing, any small wireless facility, or portion thereof, directly constructed, operated or maintained as a permitted use. Unless such permission is granted or unless otherwise provided in this section, a wireless provider shall remove within a reasonable time the abandoned small wireless facility and shall restore, using prudent construction standards, any affected rights-of-way to their former state at the time such system was installed and in accordance with the then adopted engineering standards, so as not to impair their usefulness. In removing its facilities and equipment, a wireless provider shall refill, at its own expense, any excavation necessarily made by it and shall leave all rights-of-way in as good condition as that prevailing prior to such removal without materially interfering with any authority pole or other utility wires, poles or attachments. The City shall have the right to inspect and approve the condition of the rights-of-way, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this section and any security funding provided shall continue in full force and effect during the period of removal and until full compliance by a wireless provider with the terms and conditions of this section.
3. Transfer of Abandoned Facility to City: Upon abandonment of any small wireless facility or wireless support structure in place, a wireless provider, if required by the City, shall submit to the City a written instrument, satisfactory in form to the City, transferring to the City the ownership of such poles or equipment allowed to remain within the right-of-way.
4. Removal of Above-Ground System: At the expiration of the term for which a permit is granted, or upon its revocation or earlier expiration, in any such case without renewal, extension or transfer, the City shall have the right to require a provider to remove, at its expense, all above-ground portions of small wireless facilities within a reasonable period of time, which shall not be less than one hundred eighty (180) days.
5. Leaving Underground System: Upon written approval by City, a wireless provider may abandon underground portions of a small wireless facility in place so long as it does not materially interfere with the use of the rights-of-way or with the use thereof by any public utility, cable operator or other person.
6. If a wireless provider defaults under any provision of this section and such default is not cured within thirty (30) days following notice by City to wireless provider of its default, City shall maintain all its rights and remedies, at law and in equity, including the ability to charge fines and recover fees and costs. In the alternative, the City may remove the small wireless facilities and associated equipment and charge the reasonable, documented, actual cost to the wireless provider.
(N) Orders, Rules and Regulations: In addition to the requirements set forth in this section, the City may adopt such orders, rules and regulations which are reasonably necessary to accomplish the purposes of this section and are consistent herewith. (Ord. 2019-1646, 3-12-2019; Ord. 2020-1727, 8-25-2020; Ord. 2022-1789, 6-14-2022. Formerly 8-2-18)