Chapter 12-26 CONSTRUCTION OF FACILITIES IN THE RIGHTS-OF-WAY

A. Purpose. The purpose of this chapter is to establish policies and procedures for constructing facilities on rights-of-way within the city’s jurisdiction, which will provide public benefit consistent with the preservation of the integrity, safe usage, and visual qualities of the city rights-of-way and the city as a whole.

B. Intent. In enacting this chapter, the city intends to exercise its authority over the rights-of-way in the city and, in particular, the use of the public ways and by establishing uniform standards to address issues presented by small wireless facilities and utility facilities, including without limitation:

1. Prevent interference with the use of streets, sidewalks, alleys, parkways and other public ways and places;

2. Prevent the creation of visual and physical obstructions and other conditions that are hazardous to vehicular and pedestrian traffic;

3. Prevent interference with the facilities and operations of the city’s utilities and of other utilities lawfully located in rights-of-way or public property;

4. Protect against environmental damage, including damage to trees, from the installation of facilities;

5. Protect against increased stormwater runoff due to structures and materials that increase impermeable surfaces;

6. Preserve the character of the neighborhoods in which facilities are installed;

7. Preserve open space, particularly the tree-lined parkways that characterize the city’s residential neighborhoods;

8. Prevent visual blight from the proliferation of facilities in the rights-of-way; and

9. Assure the continued safe use and enjoyment of private properties adjacent to facilities locations.

C. Facilities Subject to This Chapter. This chapter applies to all facilities on, over, above, along, upon, under, across, or within the rights-of-way within the jurisdiction of the city. A facility lawfully established prior to the effective date of this chapter may continue to be maintained, repaired and operated by the wireless provider or utility, only as presently constructed and located, except as may be otherwise provided in any applicable franchise, license or similar agreement.

D. Franchises, Licenses, or Similar Agreements. The city, in its discretion and as limited by law, may require utilities to enter into a franchise, license or similar agreement for the privilege of locating their facilities on, over, above, along, upon, under, across, or within the city rights-of-way. Utilities that are not required by law to enter into such an agreement may request that the city enter into such an agreement. In such an agreement, the city may provide for terms and conditions inconsistent with this chapter.

E. Effect of Franchises, Licenses, or Similar Agreements.

1. Utilities Other Than Telecommunications Providers. In the event that a utility other than a telecommunications provider has a franchise, license or similar agreement with the city, such franchise, license or similar agreement shall govern and control during the term of such agreement and any lawful renewal or extension thereof.

2. Telecommunications Providers. In the event of any conflict with, or inconsistency between, the provisions of this chapter and the provisions of any franchise, license or similar agreement between the city and any telecommunications provider, the provisions of such franchise, license or similar agreement shall govern and control during the term of such agreement and any lawful renewal or extension thereof.

F. Conflicts with Other Chapters. This chapter supersedes all chapters or parts of chapters adopted prior hereto that are in conflict herewith, only to the extent of such conflict. Without limiting the generality of the foregoing, this chapter supersedes any provisions in Chapter 12-04 of this code to the extent of any conflict.

G. Conflicts with State and Federal Laws. In the event that applicable federal or state laws or regulations conflict with the requirements of this chapter, the utility shall comply with the requirements of this chapter to the maximum extent possible without violating federal or state laws or regulations.

H. Sound Engineering Judgment. The city shall use sound engineering judgment when administering this chapter and may exercise the power described in Section 12-26-210 of this code to vary the standards, conditions, and requirements expressed in this chapter when the city so determines. Nothing herein shall be construed to limit the ability of the city to regulate its rights-of-way for the protection of the public health, safety and welfare. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-020 Definitions.

As used in this chapter, and unless the context clearly requires otherwise, the words and terms listed shall have the meanings ascribed to them in this section. Any term not defined in this section shall have the meaning ascribed to it in 92 Ill. Adm. Code Section 530.30, unless the context clearly requires otherwise.

“AASHTO” means the American Association of State Highway and Transportation Officials.

“ANSI” means the American National Standards Institute.

“Antenna” means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of any type of wireless communications services.

“Applicant” means a person applying for a permit under this chapter.

“ASTM” means the American Society for Testing and Materials.

“Backfill” means the methods or materials for replacing excavated material in a trench or pit.

“Bore” or “boring” means to excavate an underground cylindrical cavity for the insertion of a pipe or electrical conductor.

“Cable operator” means that term as defined in 47 U.S.C. Section 522(5).

“Cable service” means that term as defined in 47 U.S.C. Section 522(6).

“Cable system” means that term as defined in 47 U.S.C. Section 522(7).

“Carrier pipe” means the pipe enclosing the liquid, gas or slurry to be transported.

“Casing” means a structural protective enclosure for transmittal devices such as: carrier pipes, electrical conductors, and fiber-optic devices.

“City” means the city of Harvey, Cook County, Illinois.

“Clear zone” means the total roadside border area, starting at the edge of the pavement, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a nonrecoverable slope, and a clear run-out area. The desired width is dependent upon the traffic volumes and speeds, and on the roadside geometry. Distances are specified in the AASHTO Roadside Design Guide.

“Coating” means a protective wrapping or mastic cover applied to buried pipe for protection against external corrosion.

“Code” means the municipal code of the city of Harvey.

“Collocate” or “collocation” means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole.

“Communications service” means cable service, as defined in 47 U.S.C. Section 522(6), as amended; information service, as defined in 47 U.S.C. Section 153(24), as amended; telecommunications service, as defined in 47 U.S.C. Section 153(53), as amended; mobile service, as defined in 47 U.S.C. Section 153(33), as amended; or wireless service other than mobile service.

“Communications service provider” means a cable operator, as defined in 47 U.S.C. Section 522(5), as amended; a provider of information service, as defined in 47 U.S.C. Section 153(24), as amended; a telecommunications carrier, as defined in 47 U.S.C. Section 153(51), as amended; or a wireless provider.

“Conductor” means wire carrying electrical current.

“Conduit” means a casing or encasement for wires or cables.

“Construction” or “construct” means the installation, repair, maintenance, placement, alteration, enlargement, demolition, modification or abandonment in place of facilities.

“Cover” means the depth of earth or backfill over buried utility pipe or conductor.

“Crossing facility” means a facility that crosses one (1) or more right-of-way lines of a right-of-way.

“Disrupt the right-of-way” means, for the purposes of this chapter, any work that obstructs the right-of-way or causes a material adverse effect on the use of the right-of-way for its intended use. Such work may include, without limitation, the following: excavating or other cutting; placement (whether temporary or permanent) of materials, equipment, devices, or structures; damage to vegetation; and compaction or loosening of the soil, and shall not include the parking of vehicles or equipment in a manner that does not materially obstruct the flow of traffic on a highway.

“Emergency” means any immediate maintenance to the facility required for the safety of the public using or in the vicinity of the right-of-way or immediate maintenance required for the health and safety of the general public served by the utility.

“Encasement” means a provision of a protective casing.

“Engineer” means the city engineer or his or her designee.

“Equipment” means materials, tools, implements, supplies, and/or other items used to facilitate construction of facilities.

“Excavation” means the making of a hole or cavity by removing material, or laying bare by digging.

“Extra-heavy pipe” means a pipe meeting ASTM standards for this pipe designation.

“Facility” means all structures, devices, objects, and materials (including, but not limited to, track and rails, wires, ducts, fiber-optic cable, antennas, vaults, boxes, equipment enclosures, cabinets, pedestals, poles, conduits, grates, covers, pipes, cables, small wireless facilities, as defined in this chapter, and appurtenances thereto) located on, over, above, along, upon, under, across, or within rights-of-way under this chapter. For purposes of this chapter, the term “facility” shall not include any facility owned or operated by the city.

“Freestanding facility” means a facility that is not a crossing facility or a parallel facility, such as a monopole, utility pole, antenna, transformer, pump, or meter station.

“Frontage road” means a roadway, usually parallel, providing access to land adjacent to the highway where it is precluded by control of access to a highway.

“Hazardous materials” means any substance or material which, due to its quantity, form, concentration, location, or other characteristics, is determined by the superintendent of public works to pose an unreasonable and imminent risk to the life, health or safety of persons or property or to the ecological balance of the environment, including, but not limited to, explosives, radioactive materials, petroleum or petroleum products or gases, poisons, etiology (biological) agents, flammables, corrosives or any substance determined to be hazardous or toxic under any federal or state law, statute or regulation.

“Highway” means a specific type of right-of-way used for vehicular traffic including rural or urban roads or streets. “Highway” includes all highway land and improvements, including roadways, ditches and embankments, bridges, drainage structures, signs, guardrails, protective structures and appurtenances necessary or convenient for vehicle traffic.

“Highway Code” means the Illinois Highway Code, 605 ILCS 5/1-101 et seq., as amended from time to time.

“Historic district” or “historic landmark” means a building, property, or site, or group of buildings, properties, or sites that are either (1) listed in the National Register of Historic Places or formally determined eligible for listing by the Keeper of the National Register, the individual who has been delegated the authority by the federal agency to list properties and determine their eligibility for the National Register, in accordance with Sections VI.D.1.a.i through VI.D.1.a.v of the Nationwide Programmatic Agreement codified at 47 CFR Part 1, Appendix C; or (2) designated as a locally landmarked building, property, site, or historic district by an ordinance adopted by the city pursuant to a preservation program that meets the requirements of the Certified Local Government Program of the Illinois State Historic Preservation Office or where such certification of the preservation program by the Illinois State Historic Preservation Office is pending.

“Holder” means a person or entity that has received authorization to offer or provide cable or video service from the ICC pursuant to the Illinois Cable and Video Competition Law, 220 ILCS 5/21-401.

“ICC” means the Illinois Commerce Commission.

“IDOT” means the Illinois Department of Transportation.

“Jacking” means pushing a pipe horizontally under a roadway by mechanical means with or without boring.

“Jetting” means pushing a pipe through the earth using water under pressure to create a cavity ahead of the pipe.

“Joint use” means the use of pole lines, trenches or other facilities by two or more utilities.

“J.U.L.I.E.” means the Joint Utility Locating Information for Excavators utility notification program.

“Major intersection” means the intersection of two or more major arterial highways.

“Monopole” means a structure composed of a single spire, pole or tower designed and principally used to support antennas or related equipment and that is not a utility pole.

“Municipally owned infrastructure” means an infrastructure in the public right-of-way within the boundaries of the city, including, but not limited to, streetlights, traffic signals, towers, structures, or buildings owned, operated or maintained by the city.

“Occupancy” means the presence of facilities on, over or under the right-of-way.

“Parallel facility” means a facility that is generally parallel or longitudinal to the centerline of a right-of-way.

“Parkway” means any portion of the right-of-way not improved by street or sidewalk.

“Pavement cut” means the removal of an area of pavement for access to a facility or for the construction of a facility.

“Permittee” means that entity to which a permit has been issued pursuant to Sections 12-26-040 and 12-26-050 of this code.

“Petroleum products pipelines” means pipelines carrying crude or refined liquid petroleum products including, but not limited to, gasoline, distillates, propane, butane, or coal slurry.

“Practicable” means that which is performable, feasible or possible, rather than that which is simply convenient.

“Pressure” means the internal force acting radially against the walls of a carrier pipe expressed in pounds per square inch gauge (psig).

“Prompt” means that which is done within a period of time specified by the city. If no time period is specified, the period shall be thirty (30) days.

“Public entity” means a legal entity that constitutes or is part of the government, whether at local, state or federal level.

“Restoration” means the repair of a right-of-way, highway, roadway, or other area disrupted by the construction of a facility.

“Right-of-way” or “rights-of-way” means any street, alley, other land or waterway, dedicated or commonly used for pedestrian or vehicular traffic or other similar purposes, including utility easements, in which the city has the right and authority to authorize, regulate or permit the location of facilities other than those of the city. “Right-of-way” or “rights-of-way” shall not include any real or personal city property that is not specifically described in the previous two sentences and shall not include city buildings, fixtures and other structures or improvements, regardless of whether they are situated in the right-of-way.

“Roadway” means that part of the highway that includes the pavement and shoulders.

“Sale of telecommunications at retail” means the transmitting, supplying, or furnishing of telecommunications and all services rendered in connection therewith for a consideration, other than between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries, when the gross charge made by one (1) such corporation to another such corporation is not greater than the gross charge paid to the retailer for their use or consumption and not for sale.

“Security fund” means that amount of security required pursuant to Section 12-26-100 of this code.

“Shoulder” means a width of roadway, adjacent to the pavement, providing lateral support to the pavement edge and providing an area for emergency vehicular stops and storage of snow removed from the pavement.

“Small wireless facility” means a wireless facility that meets both of the following qualifications: (1) each antenna is located inside an enclosure of no more than six (6) cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six (6) cubic feet; and (2) all other wireless equipment attached directly to a utility pole associated with the facility is cumulatively no more than twenty-five (25) cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and other services.

“Sound engineering judgment” means a decision(s) consistent with generally accepted engineering principles, practices and experience.

“Superintendent of public works” means the city superintendent of public works or his or her designee.

Telecommunications. This term includes, but is not limited to, messages or information transmitted through use of local, toll and wide area telephone service, channel services, telegraph services, teletypewriter service, computer exchange service, private line services, mobile radio services, cellular mobile telecommunications services, stationary two-way radio, paging service and any other form of mobile or portable one-way or two-way communications, and any other transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite, or similar facilities. “Private line” means a dedicated nontraffic-sensitive service for a single customer that entitles the customer to exclusive or priority use of a communications channel, or a group of such channels, from one (1) or more specified locations to one (1) or more other specified locations. “Telecommunications” shall not include value-added services in which computer processing applications are used to act on the form, content, code and protocol of the information for purposes other than transmission. “Telecommunications” shall not include purchase of telecommunications by a telecommunications service provider for use as a component part of the service provided by such provider to the ultimate retail consumer who originates or terminates the end-to-end communications. “Telecommunications” shall not include the provision of cable services through a cable system as defined in the Cable Communications Act of 1984 (47 U.S.C. Section 521 and following), as now or hereafter amended, or cable or other programming services subject to an open video system fee payable to the city through an open video system as defined in the rules of the Federal Communications Commission (47 CFR Section 76.1500 and following), as now or hereafter amended.

“Telecommunications provider” means any person that installs, owns, operates or controls facilities in the right-of-way used or designed to be used to transmit telecommunications in any form.

“Telecommunications retailer” means and includes every person engaged in making sales of telecommunications at retail as defined herein.

“Trench” means a relatively narrow open excavation for the installation of an underground facility.

“Utility” means the individual or entity owning or operating any facility that is not a small wireless facility as defined in this chapter.

“Utility pole” means an upright pole designed and used to support electric cables, telephone cables, telecommunication cables, and cable service cables, which are used to provide lighting, traffic control, signage, or a similar function.

“Vent” means a pipe to allow the dissipation into the atmosphere of gases or vapors from an underground casing.

“Video service” means that term as defined in Section 21-201(v) of the Illinois Cable and Video Competition Law of 2007, 220 ILCS 21-201(v).

“Water lines” means pipelines carrying raw or potable water.

“Wet boring” means boring using water under pressure at the cutting auger to soften the earth and to provide a sluice for the excavated material.

“Wireless facility” means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including: (1) equipment associated with wireless communications; and (2) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. “Wireless facility” includes small wireless facilities. “Wireless facility” does not include: (1) the structure or improvements on, under, or within which the equipment is collocated; or (2) wireline backhaul facilities, coaxial or fiber-optic cable that is between wireless support structures or utility poles, or coaxial or fiber-optic cable that is otherwise not immediately adjacent to or directly associated with an antenna.

“Wireless infrastructure provider” means any person authorized to provide telecommunications service in the state that builds or installs wireless communication transmission equipment, wireless facilities, wireless support structures, or utility poles and that is not a wireless services provider but is acting as an agent or a contractor for a wireless services provider for the application submitted to the city.

“Wireless provider” means a wireless infrastructure provider or a wireless service provider.

“Wireless services” means any services provided to the general public, including a particular class of customers, and made available on a nondiscriminatory basis using licensed or unlicensed spectrum, whether at a fixed location or mobile, provided using wireless facilities.

“Wireless services provider” means a person who provides wireless services.

“Wireless support structure” means a freestanding structure, such as a monopole; tower, either guyed or self-supporting; billboard; or other existing or proposed structure designed to support or capable of supporting wireless facilities. “Wireless support structure” does not include a utility pole. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-030 Annual registration required.

Every wireless provider or utility that occupies right-of-way within the city shall register on January 1st of each year with the superintendent of public works, providing the registrant’s name, address and regular business telephone and telecopy numbers, the name of one (1) or more contact persons who can act on its behalf in connection with emergencies involving the registrant’s facilities in the right-of-way and a twenty-four (24) hour telephone number for each such person, and evidence of insurance, as required in Section 12-26-085 of this code, in the form of a certificate of insurance. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-040 Permit required—Applications and fees.

A. Permit Required. No person shall construct (as defined in this chapter) any facility on, over, above, along, upon, under, across, or within any city right-of-way which (1) changes the location of the facility, (2) adds a new facility, (3) disrupts the right-of-way (as defined in this chapter), or (4) materially increases the amount of area or space occupied by the facility on, over, above, along, under, across or within the right-of-way, without first filing an application with the superintendent of public works and obtaining a permit from the city therefor, except as otherwise provided in this chapter. No permit shall be required for installation and maintenance of service connections to customers’ premises where there will be no disruption of the right-of-way.

No application, approval, or permit shall be required for routine maintenance, the replacement of small wireless facilities that are substantially similar, the same size or smaller, if the wireless provider notifies the city at least ten (10) days prior to the planned replacement, or the installation, placement, maintenance, operation, or replacement of micro wireless facilities that are suspended on cables strung between existing utility poles in compliance with applicable safety codes. The city may require a permit to work within the right-of-way for activities that affect traffic patterns or that require lane closures.

B. Permit Application. All applications for permits pursuant to this chapter shall be filed on a form provided by the city and shall be filed in such number of duplicate copies as the city may designate. The applicant may designate those portions of its application materials that it reasonably believes contain proprietary or confidential information as “proprietary” or “confidential” by clearly marking each page of such materials accordingly. The application for a small wireless facility, along with supporting information and notices, must be submitted to the superintendent of public works.

C. Minimum General Application Requirements. The application shall be made by the wireless provider or utility or the duly authorized representative and shall contain, at a minimum, the following:

1. The applicant’s name and address and telephone and telecopy numbers;

2. The applicant’s name and address, if different than the wireless provider or utility, its telephone, telecopy numbers, email address, and its interest in the work;

3. The names, addresses and telephone and telecopy numbers and email addresses of all professional consultants, if any, advising the applicant with respect to the application;

4. A general description of the proposed work and the purposes and intent of the facility and the uses to which the facility will be put. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with special emphasis on those matters likely to be affected or impacted by the work proposed;

5. Evidence that the wireless provider or utility has placed on file with the city:

a. A written traffic control plan demonstrating the protective measures and devices that will be employed, consistent with the Illinois Manual on Uniform Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic; and

b. An emergency contingency plan which shall specify the nature of potential emergencies, including, without limitation, construction and hazardous materials emergencies, and the intended response by the applicant. The intended response shall include notification to the city and shall promote protection of the safety and convenience of the public. Compliance with ICC regulations for emergency contingency plans constitutes compliance with this section unless the city finds that additional information or assurances are needed;

6. Evidence of insurance as required in Section 12-26-085 of this code; and

7. Evidence of posting of the security fund as required in Section 12-26-100 of this code;

8. Any request for a variance from one (1) or more provisions of this chapter (see Section 12-26-210 of this code);

9. Drawings, plans and specifications showing the work proposed, including the certification of an engineer that such drawings, plans, and specifications comply with applicable codes, rules, and regulations; and

10. Such additional information as may be reasonably required by the city.

D. Supplemental Application Requirements for Specific Types of Facilities. In addition to the requirements of subsection C of this section, the permit application shall include the following items, as applicable to the specific facility that is the subject of the permit application:

1. In the case of the installation of a new electric power, communications, cable television service, video service or natural gas distribution system, evidence that any “certificate of public convenience and necessity” or other regulatory authorization that the applicant is required by law to obtain, or that the applicant has elected to obtain, has been issued by the ICC or other jurisdictional authority;

2. In the case of natural gas systems, state the proposed pipe size, design, construction class, and operating pressures;

3. In the case of water lines, indicate that all requirements of the Illinois Environmental Protection Agency, Division of Public Water Supplies, have been satisfied;

4. In the case of sewer line installations, indicate that the land and water pollution requirements of the Illinois Environmental Protection Agency, Division of Water Pollution Control, and the Metropolitan Water Reclamation District have been satisfied; or

5. In the case of petroleum products pipelines, state the type or types of petroleum products, pipe size, maximum working pressure, and the design standard to be followed;

6. Applications for small wireless facilities must also include the following:

a. Drawings and site plans for each proposed small wireless facility covered by the application;

b. The location where each proposed small wireless facility or utility pole will be installed and photographs of the location and its immediate surroundings;

c. A site-specific structural analysis and engineering drawing for each proposed small wireless facility covered by the application, prepared and stamped by a professional engineer, which demonstrates that the utility pole or municipally owned infrastructure is safely capable of supporting the small wireless facility in all reasonably foreseeable weather conditions without creating a risk to public health and safety. The structural analysis will also describe the method by which the facility is designed to fail and demonstrate that any structural failure to the facility shall not cause harm to any residential structure;

d. The equipment type and model numbers for the antennas and all other wireless equipment associated with the small wireless facility;

e. A proposed schedule for the installation and completion of each small wireless facility covered by the application;

f. Certification that the collocation complies with Section 12-26-150 of this code; and

g. Applications must include the screening and stealth concealment methods used for each proposed small wireless facility covered by the application.

E. Applicant’s Duty to Update Information. Throughout the entire permit application review period and the construction period authorized by the permit, any amendments to information contained in a permit application shall be submitted by the applicant in writing to the city within thirty (30) days after the change necessitating the amendment.

F. Application Fees. Unless otherwise provided by franchise, license, or similar agreement, applications for permits pursuant to this chapter shall be accompanied by a fee in the amount of two hundred dollars ($200.00). No application fee is required to be paid by any electricity utility that is paying the municipal electricity infrastructure maintenance fee pursuant to the Electricity Infrastructure Maintenance Fee Act.

G. Application Fees for Small Wireless Facilities. All applications for the collocation of a single small wireless facility on an existing utility pole or wireless support structure shall be accompanied by a fee in the amount of six hundred fifty dollars ($650.00). All applications for the collocation of more than one (1) small wireless facility on an existing utility pole or wireless support structure shall be accompanied by a fee in the amount of three hundred fifty dollars ($350.00) for each small wireless facility addressed in said application. An application for the installation of a small wireless facility that will require a new utility pole must be accompanied by a fee in the amount of one thousand dollars ($1,000.00).

H. Consolidated Applications for Small Wireless Facilities. Applications for small wireless facilities may be submitted on a consolidated basis provided they involve the same type of small wireless facility and the same type of structure. The city may, at its discretion, remove small wireless facility collocations from the consolidated application and treat them separately for purposes of deeming the application incomplete or denied. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-050 Action on permit applications.

A. Application Deadlines for Small Wireless Facilities. Applications are deemed complete if the city does not notify the applicant otherwise within thirty (30) days of receipt of the application.

If the application to collocate a small wireless facility is to be placed on an existing utility pole, the city will notify the applicant of its approval or denial within ninety (90) days. If the city fails to notify the applicant within that time frame, the application will be deemed approved. If the application to collocate a small wireless facility requires the installation of a new utility pole, the city will notify the applicant of its approval or denial within one hundred twenty (120) days. If the city fails to notify the applicant within that time frame, the application will be deemed approved.

B. City Review of Permit Applications. Completed permit applications, containing all required documentation, shall be examined by the superintendent of public works on a nondiscriminatory basis. If the application does not conform to the requirements of applicable ordinances, codes, laws, rules, or regulations that concern public safety, the superintendent of public works shall notify the applicant of the basis for a denial, including specific code provisions upon which the denial was based. The applicant may cure the deficiencies and resubmit a revised application without paying additional application fees.

When reviewing applications for small wireless facilities, the city will approve or deny the revised application within thirty (30) days after the applicant resubmits the application or it will be deemed approved. If the superintendent of public works is satisfied that the proposed work conforms to the requirements of this chapter and applicable ordinances, codes, laws, rules, and regulations, the superintendent of public works shall issue a permit. In all instances, it shall be the duty of the applicant to demonstrate, to the satisfaction of the superintendent of public works, that the construction proposed under the application shall be in full compliance with the requirements of this chapter.

C. Additional City Review of Applications of Telecommunications Retailers.

1. Pursuant to Section 4 of the Telephone Company Act, 220 ILCS 65/4, a telecommunications retailer shall notify the city that it intends to commence work governed by this chapter for facilities for the provision of telecommunications services. Such notice shall consist of plans, specifications, and other documentation sufficient to demonstrate the purpose and intent of the facilities, and shall be provided by the telecommunications retailer to the city not less than ten (10) days prior to the commencement of work requiring no excavation and not less than thirty (30) days prior to the commencement of work requiring excavation. The superintendent of public works shall specify the portion of the right-of-way upon which the facility may be placed, used and constructed.

2. In the event that the superintendent of public works fails to provide such specification of location to the telecommunications retailer within either (a) ten (10) days after service of notice to the city by the telecommunications retailer in the case of work not involving excavation for new construction or (b) twenty-five (25) days after service of notice by the telecommunications retailer in the case of work involving excavation for new construction, the telecommunications retailer may commence work without obtaining a permit under this chapter.

3. Upon the provision of such specification by the city, where a permit is required for work pursuant to Section 12-26-040 of this code, the telecommunications retailer shall submit to the city an application for a permit and any and all plans, specifications and documentation available regarding the facility to be constructed. Such application shall be subject to the requirements of subsection A of this section.

D. Additional City Review of Applications of Holders of State Authorization Under the Cable and Video Competition Law of 2007. Applications by a utility that is a holder of a state-issued authorization under the Cable and Video Competition Law of 2007 shall be deemed granted forty-five (45) days after submission to the city, unless otherwise acted upon by the city, provided the holder has complied with applicable city codes, ordinances, and regulations. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-060 Effect of permit.

A. Authority Granted—No Property Right or Other Interest Created. A permit from the city authorizes a permittee to undertake only certain activities in accordance with this chapter on city rights-of-way, and does not create a property right or grant authority to the permittee to impinge upon the rights of others who may have an interest in the rights-of-way.

B. Duration. No permit issued to a utility shall be valid for a period longer than six (6) months unless construction is actually begun within that period and is thereafter diligently pursued to completion.

Collocation of small wireless facilities must be completed within one hundred eighty (180) days after the issuance of the permit. If collocation is not complete, the permit will be void. Permits for small wireless facilities are valid for five (5) years from the time of issuance.

C. Preconstruction Meeting Required. No construction shall begin pursuant to a permit issued under this chapter prior to attendance by the permittee and all major contractors and subcontractors who will perform any work under the permit at a preconstruction meeting. The preconstruction meeting shall be held at a date, time and place designated by the city with such city representatives in attendance as the city deems necessary. The meeting shall be for the purpose of reviewing the work under the permit, and reviewing special considerations necessary in the areas where work will occur, including, without limitation, presence or absence of other utility facilities in the area and their locations, procedures to avoid disruption of other facilities, use of rights-of-way by the public during construction, and access and egress by adjacent property owners.

D. Compliance with All Laws Required. The issuance of a permit by the city does not excuse the permittee from complying with other requirements of the city and applicable statutes, laws, ordinances, rules, and regulations. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-070 Revised permit drawings.

In the event that the actual locations of any facilities deviate in any material respect from the locations identified in the plans, drawings and specifications submitted with the permit application, the permittee shall submit a revised set of drawings or plans to the city within ninety (90) days after the completion of the permitted work. The revised drawings or plans shall specifically identify where the locations of the actual facilities deviate from the locations approved in the permit. If any deviation from the permit also deviates from the requirements of this chapter, it shall be treated as a request for variance in accordance with Section 12-26-210 of this code. If the city denies the request for a variance, then the permittee shall either remove the facility from the right-of-way or modify the facility so that it conforms to the permit and submit revised drawings or plans therefor. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-080 Annual recurring rates for small wireless facilities.

The city shall charge an annual recurring rate for the collocation of small wireless facilities on a municipally owned infrastructure located in its right-of-way equal to either two hundred dollars ($200.00) per utility pole, or the actual, direct, and reasonable costs related to the wireless provider’s use of space on the city utility pole, whichever is greater. If the city elects to charge the actual, direct, and reasonable costs related to the wireless provider’s use of space on the municipally owned infrastructure, it shall adopt a fee schedule on an annual basis. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-085 Insurance.

A. Required Coverages and Limits. Unless otherwise provided by franchise, license, or similar agreement, each wireless provider or utility occupying the right-of-way or constructing any facility in the right-of-way shall secure and maintain the following liability insurance policies insuring the utility as named insured and naming the city, and its elected and appointed officers, officials, agents, and employees, as additional insureds on the policies listed in subsection (A)(1) of this section:

1. Commercial general liability insurance, including premises-operations, explosion, collapse, and underground hazard (commonly referred to as “X,” “C,” and “U” coverages) and products-completed operations coverage with limits not less than:

a. Five million dollars ($5,000,000.00) for bodily injury or death to each person;

b. Five million dollars ($5,000,000.00) for property damage resulting from any one (1) accident;

c. Five million dollars ($5,000,000.00) for all other types of liability;

d. Wireless providers must include the city as an additional insured on the commercial general liability policy;

2. Workers’ compensation with statutory limits; and

3. Property insurance for replacement costs against all risks.

If the wireless provider or utility is not providing such insurance to protect the contractors and subcontractors performing the work, then such contractors and subcontractors shall comply with this section.

B. Excess or Umbrella Policies. The coverages required by this section may be in any combination of primary, excess, and umbrella policies. Any excess or umbrella policy must provide excess coverage over underlying insurance on a following-form basis such that when any loss covered by the primary policy exceeds the limits under the primary policy, the excess or umbrella policy becomes effective to cover such loss.

C. Copies Required. The wireless provider or utility shall provide copies of any of the policies required by this section to the city within ten (10) days following receipt of a written request therefor from the city.

D. Maintenance and Renewal of Required Coverages. The insurance policies required by this section shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the City, by registered mail or certified mail, return receipt requested, of a written notice addressed to the City Administrator of such intent to cancel or not to renew.

Within ten (10) days after receipt by the city of said notice, and in no event later than ten (10) days prior to said cancellation, the utility shall obtain and furnish to the city evidence of replacement insurance policies meeting the requirements of this section.

E. Self-Insurance. A wireless provider or utility may self-insure all or a portion of the insurance coverage and limit requirements required by subsection A of this section. A wireless provider or utility that self-insures is not required, to the extent of such self-insurance, to comply with the requirement for the naming of additional insureds under subsection A of this section, or the requirements of subsections B, C and D of this section. A wireless provider or utility that elects to self-insure shall provide to the city evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit requirements required under subsection A of this section, such as evidence that the utility is a “private self-insurer” under the Workers’ Compensation Act.

F. Effect of Insurance and Self-Insurance on Wireless Provider or Utility’s Liability. The legal liability of the wireless provider or utility to the city and any person for any of the matters that are the subject of the insurance policies or self-insurance required by this section shall not be limited by such insurance policies or self-insurance or by the recovery of any amounts thereunder.

G. Insurance Companies. All insurance provided pursuant to this section shall be effected under valid and enforceable policies, issued by insurers legally able to conduct business with the licensee in the state of Illinois. All insurance carriers and surplus line carriers shall be rated “A-” or better and of a class size “X” or higher by AM Best Company. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-090 Indemnification.

By occupying or constructing facilities in the right-of-way, a wireless provider or utility shall be deemed to agree to defend, indemnify and hold the city and its elected and appointed officials and officers, employees, agents and representatives harmless from and against any and all injuries, claims, demands, judgments, damages, losses and expenses, including reasonable attorney’s fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the utility or its affiliates, officers, employees, agents, contractors or subcontractors in the construction of facilities or occupancy of the rights-of-way, and in providing or offering service over the facilities, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a franchise, license, or similar agreement; provided, however, that the wireless provider or utility’s indemnity obligations hereunder shall not apply to any injuries, claims, demands, judgments, damages, losses or expenses arising out of or resulting from the negligence, misconduct or breach of this chapter by the city, its officials, officers, employees, agents or representatives. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-100 Security.

A. Purpose. The permittee shall establish a security fund in a form and in an amount as set forth in this section. The security fund shall be continuously maintained in accordance with this section at the permittee’s sole cost and expense until the completion of the work authorized under the permit. The security fund shall serve as security for:

1. The faithful performance by the permittee of all the requirements of this chapter;

2. Any expenditure, damage, or loss incurred by the city occasioned by the permittee’s failure to comply with any codes, rules, regulations, orders, permits and other directives of the city issued pursuant to this chapter; and

3. The payment by permittee of all liens and all damages, claims, costs, or expenses that the city may pay or incur by reason of any action or nonperformance by permittee in violation of this chapter including, without limitation, any damage to public property or restoration work the permittee is required by this chapter to perform that the city must perform itself or have completed as a consequence solely of the permittee’s failure to perform or complete, and all other payments due the city from the permittee pursuant to this chapter or any other applicable law.

B. Form. The permittee shall provide the security fund to the city in the form, at the permittee’s election, of cash, a surety bond in a form acceptable to the city, or an unconditional letter of credit in a form acceptable to the city. Any surety bond or letter of credit provided pursuant to this subsection shall, at a minimum:

1. Provide that it will not be canceled without prior notice to the city and the permittee;

2. Not require the consent of the permittee prior to the collection by the city of any amounts covered by it; and

3. Shall provide a location convenient to the city and within the state of Illinois at which it can be drawn.

C. Amount. The dollar amount of the security fund shall be sufficient to provide for the reasonably estimated cost to restore the right-of-way to at least as good a condition as that existing prior to the construction under the permit, as determined by the superintendent of public works, and may also include reasonable, directly related costs that the city estimates are likely to be incurred if the permittee fails to perform such restoration. Where the construction of facilities proposed under the permit will be performed in phases in multiple locations in the city, with each phase consisting of construction of facilities in one (1) location or a related group of locations, and where construction in another phase will not be undertaken prior to substantial completion of restoration in the previous phase or phases, the superintendent of public works may, in the exercise of sound discretion, allow the permittee to post a single amount of security which shall be applicable to each phase of the construction under the permit. The amount of the security fund for phased construction shall be equal to the greatest amount that would have been required under the provisions of this subsection C for any single phase.

D. Withdrawals. The city, upon fourteen (14) days’ advance written notice clearly stating the reason for, and its intention to exercise withdrawal rights under, this subsection, may withdraw an amount from the security fund; provided, that the permittee has not reimbursed the city for such amount within the fourteen (14) day notice period. Withdrawals may be made if the permittee:

1. Fails to make any payment required to be made by the permittee hereunder;

2. Fails to pay any liens relating to the facilities that are due and unpaid;

3. Fails to reimburse the city for any damages, claims, costs or expenses which the city has been compelled to pay or incur by reason of any action or nonperformance by the permittee; or

4. Fails to comply with any provision of this chapter that the city determines can be remedied by an expenditure of an amount in the security fund.

E. Replenishment. Within fourteen (14) days after receipt of written notice from the city that any amount has been withdrawn from the security fund, the permittee shall restore the security fund to the amount specified in subsection C of this section.

F. Interest. The permittee may request that any and all interest accrued on the amount in the security fund be returned to the permittee by the city, upon written request for said withdrawal to the city; provided, that any such withdrawal does not reduce the security fund below the minimum balance required in subsection C of this section.

G. Closing and Return of Security Fund. Upon completion of the work authorized under the permit, the permittee shall be entitled to the return of the security fund, or such portion thereof as remains on deposit, within a reasonable time after account is taken for all offsets necessary to compensate the city for failure by the permittee to comply with any provisions of this chapter or other applicable law. In the event of any revocation of the permit, the security fund, and any and all accrued interest therein, shall become the property of the city to the extent necessary to cover any reasonable costs, loss or damage incurred by the city as a result of said revocation; provided, that any amounts in excess of said costs, loss or damage shall be refunded to the permittee.

H. Rights Not Limited. The rights reserved to the city with respect to the security fund are in addition to all other rights of the city, whether reserved by this chapter or otherwise authorized by law, and no action, proceeding or exercise of right with respect to said security fund shall affect any other right the city may have. Notwithstanding the foregoing, the city shall not be entitled to a double monetary recovery with respect to any of its rights which may be infringed or otherwise violated. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-110 Permit suspension and revocation.

A. City Right to Revoke Permit. The city may revoke or suspend a permit issued pursuant to this chapter for one (1) or more of the following reasons:

1. Fraudulent, false, misrepresenting, or materially incomplete statements in the permit application;

2. Noncompliance with this chapter;

3. Permittee’s physical presence or presence of permittee’s facilities on, over, above, along, upon, under, across, or within the rights-of-way presents a direct or imminent threat to the public health, safety, or welfare; or

4. Permittee’s failure to construct the facilities substantially in accordance with the permit and approved plans.

B. Notice of Revocation or Suspension. The city shall send written notice of its intent to revoke or suspend a permit issued pursuant to this chapter stating the reason or reasons for the revocation or suspension and the alternatives available to permittee under this section.

C. Permittee Alternatives Upon Receipt of Notice of Revocation or Suspension. Upon receipt of a written notice of revocation or suspension from the city, the permittee shall have the following options:

1. Immediately provide the city with evidence that no cause exists for the revocation or suspension;

2. Immediately correct, to the satisfaction of the city, the deficiencies stated in the written notice, providing written proof of such correction to the city within five (5) working days after receipt of the written notice of revocation; or

3. Immediately remove the facilities located on, over, above, along, upon, under, across, or within the rights-of-way and restore the rights-of-way to the satisfaction of the city, providing written proof of such removal to the city within ten (10) days after receipt of the written notice of revocation.

The city may, in its discretion, for good cause shown, extend the time periods provided in this subsection.

D. Stop Work Order. In addition to the issuance of a notice of revocation or suspension, the city may issue a stop work order immediately upon discovery of any of the reasons for revocation set forth within subsection A of this section.

E. Failure or Refusal of the Permittee to Comply. If the permittee fails to comply with the provisions of subsection C of this section, the city or its designee may, at the option of the city: (1) correct the deficiencies; (2) upon not less than twenty (20) days’ notice to the permittee, remove the subject facilities or equipment; or (3) after not less than thirty (30) days’ notice to the permittee of failure to cure the noncompliance, deem them abandoned and property of the city. The permittee shall be liable in all events to the city for all costs of removal. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-120 Utility change of ownership or owner’s identity or legal status.

A. Notification of Change. A utility shall notify the city no less than thirty (30) days prior to the transfer of ownership of any facility in the right-of-way or change in identity of the utility. The new owner of the utility or the facility shall have all the obligations and privileges enjoyed by the former owner under the permit, if any, and applicable laws, ordinances, rules and regulations, including this chapter, with respect to the work and facilities in the right-of-way.

B. Amended Permit. A new owner shall request that any current permit be amended to show current ownership. If the new owner fails to have a new or amended permit issued in its name, the new owner shall be presumed to have accepted, and agreed to be bound by, the terms and conditions of the permit if the new owner uses the facility or allows it to remain on the city’s right-of-way.

C. Insurance and Bonding. All required insurance coverage or bonding must be changed to reflect the name of the new owner upon transfer. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-130 General construction standards.

A. Standards and Principles. All construction in the right-of-way shall be consistent with applicable ordinances, codes, laws, rules and regulations, and commonly recognized and accepted traffic control and construction principles, sound engineering judgment and, where applicable, the principles and standards set forth in the following IDOT publications, as amended from time to time:

1. Standard Specifications for Road and Bridge Construction;

2. Supplemental Specifications and Recurring Special Provisions;

3. Highway Design Manual;

4. Highway Standards Manual;

5. Standard Specifications for Traffic Control Items;

6. Illinois Manual on Uniform Traffic Control Devices (92 Ill. Adm. Code Section 545);

7. Flagger’s Handbook; and

8. Work Site Protection Manual for Daylight Maintenance Operations.

B. Interpretation of Municipal Standards and Principles. If a discrepancy exists between or among differing principles and standards required by this chapter, the superintendent of public works shall determine, in the exercise of sound engineering judgment, which principles apply and such decision shall be final. If requested, the superintendent of public works shall state which standard or principle will apply to the construction, maintenance, or operation of a facility in the future. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-140 Public safety and traffic control.

A. Public Safety. The placement of any antenna, wireless facility or small wireless facilities located in the city right-of-way may not interfere with the frequencies used by public safety agencies for public safety communications. Unacceptable interference will be determined in accordance with industry standards and the Federal Communications Commission’s regulations addressing unacceptable interference to public safety spectrum. If an antenna, wireless facility or small wireless facility causes such interference, the owner must take all steps necessary to correct and eliminate the interference at its own costs. The city may terminate a permit for any antenna, wireless facility or small wireless facility based on such interference if the interference is not corrected.

The city may reserve space on its utility pole for future public safety uses. This reservation of space may preclude the collocation of a small wireless facility where the city determines that the utility pole cannot accommodate both uses.

B. Minimum Requirements. The city’s minimum requirements for traffic protection are contained in IDOT’s Illinois Manual on Uniform Traffic Control Devices and this code.

C. Warning Signs, Protective Devices, and Flaggers. The wireless provider or utility is responsible for providing and installing warning signs, protective devices and flaggers, when necessary, meeting applicable federal, state, and local requirements for protection of the public and the utility’s workers when performing any work on the rights-of-way.

D. Interference With Traffic. All work shall be phased so that there is minimum interference with pedestrian and vehicular traffic.

E. Notice When Access Is Blocked. At least forty-eight (48) hours prior to beginning work that will partially or completely block access to any residence, business or institution, the wireless provider or utility shall notify the resident, business or institution of the approximate beginning time and duration of such work; provided, however, that in cases involving emergency repairs pursuant to Section 12-26-200 of this code, the wireless provider or utility shall provide such notice as is practicable under the circumstances.

F. Compliance. The wireless provider or utility shall take immediate action to correct any deficiencies in traffic protection requirements that are brought to its attention by the city. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-150 Location of facilities.

A. General Requirements. In addition to location requirements applicable to specific types of facilities, all facilities, regardless of type, shall be subject to the general location requirements of this subsection.

1. No Interference With City Facilities. No utility facilities shall be placed in any location if the superintendent of public works determines that the proposed location will require the relocation or displacement of any of the city’s utility facilities or will otherwise interfere with the operation or maintenance of any of the city’s utility facilities.

2. Minimum Interference and Impact. The proposed location shall cause only the minimum possible interference with the use of the right-of-way and shall cause only the minimum possible impact upon, and interference with, the rights and reasonable convenience of property owners who adjoin said right-of-way.

3. No Interference With Travel. No utility facility shall be placed in any location that interferes with the usual travel on such right-of-way.

4. No Limitations on Visibility. No utility facility shall be placed in any location so as to limit visibility of or by users of the right-of-way.

5. Size of Utility Facilities. The proposed installation shall use the smallest suitable vaults, boxes, equipment enclosures, power pedestals, and/or cabinets then in use by the facility owner, regardless of location, for the particular application.

6. The city is not required to install or maintain any specific utility pole or to continue to install or maintain utility poles in any location if it makes a nondiscriminatory decision to eliminate aboveground utility poles of a particular type. For city utility poles with collocated small wireless facilities in place when the city makes a decision to eliminate aboveground utility poles, the city will, at its discretion, either maintain the utility pole or install and maintain an alternative utility pole for the collocation of the small wireless facility, or offer to sell the utility pole to the wireless provider.

B. Parallel Facilities Located Within Highways.

1. Overhead Parallel Facilities. An overhead parallel facility may be located within the right-of-way lines of a highway only if:

a. Lines are located as near as practicable to the right-of-way line and as nearly parallel to the right-of-way line as reasonable pole alignment will permit;

b. Where pavement is curbed, poles are as remote as practicable from the curb with a minimum distance of two (2) feet (0.6 m) behind the face of the curb, where available;

c. Where pavement is uncurbed, poles are as remote from pavement edge as practicable with minimum distance of four (4) feet (1.2 m) outside the outer shoulder line of the roadway and are not within the clear zone;

d. No pole is located in the ditch line of a highway; and

e. Any ground-mounted appurtenance is located within one (1) foot (0.3 m) of the right-of-way line or as near as possible to the right-of-way line.

2. Underground Parallel Facilities. An underground parallel facility may be located within the right-of-way lines of a highway only if:

a. The facility is located as near the right-of-way line as practicable and not more than eight (8) feet (2.4 m) from and parallel to the right-of-way line;

b. A new facility may be located under the paved portion of a highway only if other locations are impracticable or inconsistent with sound engineering judgment (e.g., a new cable may be installed in existing conduit without disrupting the pavement); and

c. In the case of an underground power or communications line, the facility shall be located as near the right-of-way line as practicable and not more than five (5) feet (1.5 m) from the right-of-way line and any abovegrounded appurtenance shall be located within one (1) foot (0.3 m) of the right-of-way line or as near as practicable.

C. Facilities Crossing Highways.

1. No Future Disruption. The construction and design of crossing facilities installed between the ditch lines or curb lines of city highways may require the incorporation of materials and protections (such as encasement or additional cover) to avoid settlement or future repairs to the roadbed resulting from the installation of such crossing facilities.

2. Cattle Passes, Culverts, or Drainage Facilities. Crossing facilities shall not be located in cattle passes, culverts, or drainage facilities.

3. Ninety (90) Degree Crossing Required. Crossing facilities shall cross at or as near to a ninety (90) degree angle to the centerline as practicable.

4. Overhead Power or Communication Facility. An overhead power or communication facility may cross a highway only if:

a. It has a minimum vertical line clearance as required by ICC’s rules entitled, “Construction of Electric Power and Communication Lines” (83 Ill. Adm. Code 305);

b. Poles are located within one (1) foot (0.3 m) of the right-of-way line of the highway and outside of the clear zone; and

c. Overhead crossings at major intersections are avoided.

5. Underground Power or Communication Facility. An underground power or communication facility may cross a highway only if:

a. The design materials and construction methods will provide maximum maintenance-free service life; and

b. Capacity for the utility’s foreseeable future expansion needs is provided in the initial installation.

6. Markers. The city may require the utility to provide a marker at each right-of-way line where an underground facility other than a power or communication facility crosses a highway. Each marker shall identify the type of facility, the utility, and an emergency phone number. Markers may also be eliminated as provided in current federal regulations (49 CFR Section 192.707 (1989)).

D. Facilities to Be Located Within Particular Rights-of-Way. The city may require that facilities be located within particular rights-of-way that are not highways, rather than within particular highways.

E. Freestanding Facilities.

1. Small Wireless Facilities.

a. The city may not require the placement of a small wireless facility on a specific utility pole or category of poles. However, should the application necessitate the installation of a new utility pole, the city may propose that the small wireless facility be collocated on an existing utility pole or existing support structure within two hundred (200) feet of the proposed collocation. Should the applicant reject the proposed relocated collocation, it must provide a written certification describing the property rights, technical limits or material cost reasons the alternative location will not satisfy the wireless provider’s needs. The city may require any monopole, utility pole or other freestanding facility located within a right-of-way to be screened from view in compliance with the appearance standards described in subsection I of this section.

b. If all existing monopoles, utility poles and other aboveground facilities are located on one (1) side of the right-of-way, all new monopoles, utility poles and other freestanding facilities shall be located on the same side of the right-of-way as the existing aboveground facilities. If there exist aboveground facilities on both sides, new freestanding facilities shall be located on the side where the aboveground facilities most closely match the scale of the new freestanding facility.

2. Other Facilities.

a. The city may restrict the location and size of any monopole, utility pole or other freestanding facility located within a right-of-way. No freestanding facility located within a right-of-way may be constructed or modified so that the height of the freestanding facility is higher by more than ten (10) feet or more than ten (10) percent, whichever is greater, than any other existing, freestanding facility located within the right-of-way within three hundred (300) feet of the proposed facility, measured along the centerline of the respective right-of-way. Where there are no other freestanding facilities located within three hundred (300) feet of the proposed facility, the maximum height of the freestanding facility shall be forty-five (45) feet.

b. The city may require any monopole, utility pole or other freestanding facility located within a right-of-way to be screened from view.

c. If all existing monopoles, utility poles and other aboveground facilities are located on one (1) side of the right-of-way, all new monopoles, utility poles and other freestanding facilities shall be located on the same side of the right-of-way as the existing aboveground facilities. If there exist aboveground facilities on both sides, new freestanding facilities shall be located on the side where the aboveground facilities most closely match the scale of the new freestanding facility.

F. Height Restrictions for Small Wireless Facilities. Small wireless facilities are limited to a maximum height of ten (10) feet above the utility pole or wireless structure on which it is collocated. The height limit of a new or replacement utility pole or wireless support structure on which small wireless facilities are collocated is limited to the higher of: (1) ten (10) feet higher than the tallest existing utility pole within three hundred (300) feet of the new or replacement utility pole or wireless support structure that is in the same right-of-way; or (2) forty-five (45) feet above ground level. The city shall designate which intersecting right-of-way within three hundred (300) feet of the proposed utility pole or wireless support structure shall control the height limitation.

G. Facilities Installed Aboveground. Aboveground facilities may be installed only if:

1. No other existing facilities in the area are located underground;

2. New underground installation is not technically feasible; and

3. The proposed installation will be made at a location, and will employ suitable design and materials, to provide the greatest protection of aesthetic qualities of the area being traversed without adversely affecting safety. Suitable designs include, but are not limited to, self-supporting armless, single-pole construction with vertical configuration of conductors and cable. Existing utility poles and municipally owned infrastructure shall be used wherever practicable; the installation of additional utility poles or monopoles is strongly discouraged.

H. Facility Attachments to Bridges or Roadway Structures.

1. Facilities may be installed as attachments to bridges or roadway structures only where the utility has demonstrated that all other means of accommodating the facility are not practicable. Other means shall include, but are not limited to, underground, underwater, independent poles, cable supports and tower supports, all of which are completely separated from the bridge or roadway structure. Facilities transmitting commodities that are volatile, flammable, corrosive, or energized, especially those under significant pressure or potential, present high degrees of risk and such installations are not permitted.

2. A utility shall include in its request to accommodate a facility installation on a bridge or roadway structure supporting data demonstrating the impracticability of alternate routing. Approval or disapproval of an application for facility attachment to a bridge or roadway structure will be based upon the following considerations:

a. The type, volume, pressure or voltage of the commodity to be transmitted and an evaluation of the resulting risk to persons and property in the event of damage to or failure of the facility;

b. The type, length, value, and relative importance of the highway structure in the transportation system;

c. The alternative routings available to the utility and their comparative practicability;

d. The proposed method of attachment;

e. The ability of the structure to bear the increased load of the proposed facility;

f. The degree of interference with bridge maintenance and painting;

g. The effect on the visual quality of the structure; and

h. The public benefit expected from the utility service as compared to the risk involved.

I. Design and Appearance Standards.

1. Residential Design Standards.

a. Applicability. These design standards shall apply to each facility located in a district zoned for residential uses.

b. Purpose. To ensure visually acceptable facility design and to provide discretion on required and preferred design of small wireless facilities.

• Applicants must use architectural treatments and stealth techniques to reduce potential visual impacts from all small wireless facilities.

• All new utility poles installed for the purpose of mounting a facility must be stealth or camouflaged to blend into the surrounding environment. Examples of stealth or camouflage designs are presented in Figure 1 below.

• Small wireless facilities and all ancillary equipment associated with the facility must not emit sound.

• Cables must be routed directly from the ground through the pole and equipment enclosures must completely enclose or hide cabling. No exposed cable is allowed.

• No flashing lights or unnecessary, nonessential stickers are allowed to be placed on any facility. Stickers must be designed in the same color as the pole to which they are attached.

• In no case shall equipment block the sidewalk or pedestrian pathway. All installations must maintain accessibility requirements and standards.

• All newly installed equipment must be painted with graffiti-resistant paint.

• Colors and materials for small wireless facilities shall be chosen to minimize the visibility of the facility.

• Antennas attached to existing poles or municipally owned infrastructure shall be painted and textured to match the existing structure.

• Any ground-mounted facility shall be painted with nonreflective matte finish paint using color shades that are comparable or blend with surrounding natural elements such as soil, trees, or grasslands. Any ground-mounted facility shall be screened from the yard of the property in front of which it is located using year-round landscaping materials. The owner of the ground-mounted facility shall guarantee the landscaping materials for a period of one (1) year from planting.

• All disturbed pavement and landscaping shall be replaced and areas of bare or disturbed soils must be revegetated. If replacement landscape is determined to be infeasible, the city may accept mitigation funds to use elsewhere. The owner of the ground-mounted facility shall guarantee the restoration work or reseeding for a period of one (1) year.

• No facility may display any signage or advertisements unless expressly allowed by the city in a written approval, recommended under FCC regulations or required by law or permit condition. Every facility shall at all times display signage that accurately identifies the facility owner and provides the facility owner’s unique site number, and also provides a local or toll-free telephone number to contact the facility owner’s operations center. All required or permitted signage must face toward the street or be otherwise placed to minimize visibility from adjacent sidewalks and structures.

Figure 1: Sample Stealth Designs for Small Cell Utility Poles

2. Design Standards in Special Aesthetic/Economic Purpose Zones.

a. Applicability. These design standards shall apply to (i) each area, district, neighborhood or zone expressly designated in the city’s comprehensive plan as having special aesthetic or economic impacts on the welfare of the community; and (ii) each redevelopment area designed under the Tax Increment Allocation Redevelopment Act or the Business District Development and Redevelopment Law.

b. Purpose. To protect and promote the city’s unique character in a manner consistent with state and federal laws and regulations.

• Siting of small wireless facilities in special aesthetic/economic purpose zones must respect the existing character or design ordinance of established zone.

• Applicants must include proposed stealth and concealment measures in their applications.

• Effective camouflage so as to disguise the facility so that it appears to be something other than a facility and is at the same time compatible with its surroundings (for example, designed to look like a tree).

• Small wireless facilities must be designed so that the facilities silhouette, mass and color are masked in such a way as to be virtually indistinguishable from their background.

• Examples of stealth or camouflage designs are presented in Figure 1.

3. Design Standards in Historic Districts.

a. Applicability. These design standards apply in any historic district or on any historic landmark.

b. Purpose. To promote the educational, cultural, economic and general welfare of the city by identifying, preserving, protecting, enhancing and encouraging the continued utilization and the rehabilitation of such areas, properties, structures, sites and objects having a special historical interest or value to the city and its citizens.

• Districts, sites, buildings, structures or objects, significant in American history, architecture, archeology, engineering or culture, that are listed, or are eligible for listing, in the National Register of Historic Places are to be avoided, to the greatest extent possible. Local landmarked buildings, properties, sites, or historic districts that are so recognized by an ordinance that meets the requirements of the Certified Local Government Program of the Illinois State Historic Preservation Office are also to be avoided, to the greatest extent possible.

• Applicants must include proposed stealth and concealment measures in their applications.

• Applicant must implement said city-approved design concepts, and the use of camouflage or stealth materials as necessary in order to achieve compliance with historic preservation review.

• Prior to submitting an application, where the applicant submits an application to site facilities in a historic district, the applicant must meet with the city to discuss any potential design modifications appropriate for the installation.

• When siting a facility in a historic district, the wireless provider must avoid removing, obscuring or altering any historic material or significant architectural features. Rehabilitation and make-ready work must not destroy the distinguishing character of the property or its environment.

• Deteriorated architectural features should be repaired, rather than replaced, wherever possible by means such as rust removal, caulking, limited paint removal and reapplication of paint.

4. All small wireless facilities not governed by the preceding design standards must be placed so as to minimize visibility. The small wireless facility, including all ancillary equipment and appurtenances, must be a color that blends with the surroundings of the utility pole or municipally owned infrastructure on which it is mounted and use nonreflective materials which blend with the materials and colors of the surrounding area and structures. Any wiring must be concealed within the freestanding facility or covered with an appropriate cover.

5. The city may discourage the installation of facilities in particular locations in order to preserve visual quality.

6. A facility may be constructed only if its construction does not require extensive removal or alteration of trees or terrain features visible to the right-of-way user or to adjacent residents and property owners.

7. A facility may not be installed in a manner which defeats any existing concealment elements of the utility pole or municipally owned infrastructure to which it is attached.

8. Facilities under common ownership or operated on the same radio frequency shall be separated as far as practicable. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-160 Construction methods and materials.

A. Standards and Requirements for Particular Types of Construction Methods.

1. Boring or Jacking.

a. Pits and Shoring. Boring or jacking under rights-of-way shall be accomplished from pits located at a minimum distance specified by the superintendent of public works from the edge of the pavement. Pits for boring or jacking shall be excavated no more than forty-eight (48) hours in advance of boring or jacking operations and backfilled within forty-eight (48) hours after boring or jacking operations are completed. While pits are open, they shall be clearly marked and protected by barricades. Shoring shall be designed, erected, supported, braced, and maintained so that it will safely support all vertical and lateral loads that may be imposed upon it during the boring or jacking operation.

b. Wet Boring or Jetting. Wet boring or jetting shall not be permitted under the roadway.

c. Borings with Diameters Greater Than Six (6) Inches. Borings over six (6) inches (0.15 m) in diameter shall be accomplished with an auger and following pipe, and the diameter of the auger shall not exceed the outside diameter of the following pipe by more than one (1) inch (25 mm).

d. Borings with Diameters Six (6) Inches or Less. Borings of six (6) inches or less in diameter may be accomplished by either jacking, guided with auger, or auger and following pipe method.

e. Tree Preservation. Any facility located within the drip line of any tree designated by the city to be preserved or protected shall be bored under or around the root system.

2. Trenching. Trenching for facility installation, repair, or maintenance on rights-of-way shall be done in accordance with the applicable portions of Section 603 of IDOT’s “Standard Specifications for Road and Bridge Construction.”

a. Length. The length of open trench shall be kept to the practicable minimum consistent with requirements for pipe-line testing. Only one-half (1/2) of any intersection may have an open trench at any time unless special permission is obtained from the superintendent of public works.

b. Open Trench and Excavated Material. Open trench and windrowed excavated material shall be protected as required by Chapter 6 of the Illinois Manual on Uniform Traffic Control Devices. Where practicable, the excavated material shall be deposited between the roadway and the trench as added protection. Excavated material shall not be allowed to remain on the paved portion of the roadway. Where right-of-way width does not allow for windrowing excavated material off the paved portion of the roadway, excavated material shall be hauled to an off-road location.

c. Drip Line of Trees. The utility shall not trench within the drip line of any tree designated by the city to be preserved.

3. Backfilling.

a. Any pit, trench, or excavation created during the installation of facilities shall be backfilled for its full width, depth, and length using methods and materials in accordance with IDOT’s “Standard Specifications for Road and Bridge Construction.” When excavated material is hauled away or is unsuitable for backfill, suitable granular backfill shall be used.

b. For a period of three (3) years from the date construction of a facility is completed, the utility shall be responsible to remove and restore any backfilled area that has settled due to construction of the facility. If so ordered by the superintendent of public works, the utility, at its expense, shall remove any pavement and backfill material to the top of the installed facility, place and properly compact new backfill material, and restore new pavement, sidewalk, curbs, and driveways to the proper grades, as determined by the superintendent of public works.

4. Pavement Cuts. Pavement cuts for facility installation or repair shall be permitted on a highway only if that portion of the highway is closed to traffic. If a variance to the limitation set forth in this subsection (A)(4) is permitted under Section 12-26-210 of this code, the following requirements shall apply:

a. Any excavation under pavements shall be backfilled and compacted as soon as practicable with granular material of CA-6 or CA-10 gradation, as designated by the superintendent of public works.

b. Restoration of pavement, in kind, shall be accomplished as soon as practicable, and temporary repair with bituminous mixture shall be provided immediately. Any subsequent failure of either the temporary repair or the restoration shall be rebuilt upon notification by the city.

c. All saw cuts shall be full depth.

d. For all rights-of-way which have been reconstructed with a concrete surface/base in the last seven (7) years, or resurfaced in the last three (3) years, permits shall not be issued unless such work is determined to be an emergency repair or other work considered necessary and unforeseen before the time of the reconstruction or unless a pavement cut is necessary for a J.U.L.I.E. locate.

5. Encasement.

a. Casing pipe shall be designed to withstand the load of the highway and any other superimposed loads. The casing shall be continuous either by one (1) piece fabrication or by welding or jointed installation approved by the city.

b. The venting, if any, of any encasement shall extend within one (1) foot (0.3 m) of the right-of-way line. No aboveground vent pipes shall be located in the area established as clear zone for that particular section of the highway.

c. In the case of water main or service crossing, encasement shall be furnished between bore pits unless continuous pipe or city-approved jointed pipe is used under the roadway. Casing may be omitted only if pipe is installed prior to highway construction and carrier pipe is continuous or mechanical joints are of a type approved by the city. Bell and spigot type pipe shall be encased regardless of installation method.

d. In the case of gas pipelines of sixty (60) psig or less, encasement may be eliminated.

e. In the case of gas pipelines or petroleum products pipelines with installations of more than sixty (60) psig, encasement may be eliminated only if: (i) extra heavy pipe is used that precludes future maintenance or repair and (ii) cathodic protection of the pipe is provided.

f. If encasement is eliminated for a gas or petroleum products pipeline, the facility shall be located so as to provide that construction does not disrupt the right-of-way.

6. Minimum Cover of Underground Facilities. Cover shall be provided and maintained at least in the amount specified in the following table for minimum cover for the type of facility:

TYPE OF FACILITY	MINIMUM COVER
Electric Lines	30 inches (0.8 m)
Communication, Cable or Video Service Lines	18 to 24 inches (0.6 m, as determined by city)
Gas or Petroleum Products	30 inches (0.8 m)
Water Line	Sufficient cover to provide freeze protection
Sanitary Sewer, Storm Sewer, or Drainage Line	Sufficient cover to provide freeze protection

B. Standards and Requirements for Particular Types of Facilities.

1. Electric Power or Communication Lines.

a. Code Compliance. Electric power or communications facilities within city rights-of-way shall be constructed, operated, and maintained in conformity with the provisions of 83 Ill. Adm. Code Part 305 (formerly General Order 160 of the Illinois Commerce Commission) entitled “Rules for Construction of Electric Power and Communications Lines,” and the National Electrical Safety Code.

b. Overhead Facilities. Overhead power or communication facilities shall use single-pole construction and, where practicable, joint use of poles shall be used. Utilities shall make every reasonable effort to design the installation so guys and braces will not be needed. Variances may be allowed if there is no feasible alternative and if guy wires are equipped with guy guards for maximum visibility.

c. Underground Facilities.

i. Cable may be installed by trenching or plowing; provided, that special consideration is given to boring in order to minimize damage when crossing improved entrances and side roads.

ii. If a crossing is installed by boring or jacking, encasement shall be provided between jacking or bore pits. Encasement may be eliminated only if: (A) the crossing is installed by the use of “moles,” “whip augers,” or other approved method which compresses the earth to make the opening for cable installation or (B) the installation is by the open trench method which is only permitted prior to roadway construction.

iii. Cable shall be grounded in accordance with the National Electrical Safety Code.

d. Burial of Drops. All temporary service drops placed between November 1st of the prior year and March 15th of the current year, also known as snowdrops, shall be buried by May 31st of the current year, weather permitting, unless otherwise permitted by the city. Weather permitting, utilities shall bury all temporary drops, excluding snowdrops, within ten (10) business days after placement.

2. Underground Facilities Other Than Electric Power or Communication Lines. Underground facilities other than electric power or communication lines may be installed by:

a. The use of “moles,” “whip augers,” or other approved methods which compress the earth to move the opening for the pipe;

b. Jacking or boring with vented encasement provided between the ditch lines or toes of slopes of the highway;

c. Open trench with vented encasement between ultimate ditch lines or toes of slopes, but only if prior to roadway construction; or

d. Tunneling with vented encasement, but only if installation is not possible by other means.

3. Gas Transmission, Distribution and Service. Gas pipelines within rights-of-way shall be constructed, maintained, and operated in a city-approved manner and in conformance with the Federal Code of the Office of Pipeline Safety Operations, Department of Transportation, Part 192—Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards (49 CFR Section 192), IDOT’s “Standard Specifications for Road and Bridge Construction,” and all other applicable laws, rules, and regulations.

4. Petroleum Products Pipelines. Petroleum products pipelines within rights-of-way shall conform to the applicable sections of ANSI standard code for pressure piping (Liquid Petroleum Transportation Piping Systems ANSI-B 31.4).

5. Waterlines, Sanitary Sewer Lines, Stormwater Sewer Lines or Drainage Lines. Water lines, sanitary sewer lines, storm sewer lines, and drainage lines within rights-of-way shall meet or exceed the recommendations of the current “Standard Specifications for Water and Sewer Main Construction in Illinois.”

6. Ground-Mounted Appurtenances. Ground-mounted appurtenances to overhead or underground facilities, when permitted within a right-of-way, shall be provided with a vegetation-free area extending one (1) foot (305 mm) in width beyond the appurtenance in all directions. The vegetation-free area may be provided by an extension of the mounting pad, or by heavy-duty plastic or similar material approved by the superintendent of public works. With the approval of the superintendent of public works, shrubbery surrounding the appurtenance may be used in place of a vegetation-free area. The housing for ground-mounted appurtenances shall be painted a neutral color to blend with the surroundings.

C. Materials.

1. General Standards. The materials used in constructing facilities within rights-of-way shall be those meeting the accepted standards of the appropriate industry, the applicable portions of IDOT’s “Standards Specifications for Road and Bridge Construction,” the requirements of the Illinois Commerce Commission, or the standards established by other official regulatory agencies for the appropriate industry.

2. Material Storage on Right-of-Way. No material shall be stored on the right-of-way without the prior written approval of the superintendent of public works. When such storage is permitted, all pipe, conduit, wire, poles, cross arms, or other materials shall be distributed along the right-of-way prior to and during installation in a manner to minimize hazards to the public or an obstacle to right-of-way maintenance or damage to the right-of-way and other property. If material is to be stored on right-of-way, prior approval must be obtained from the city.

3. Hazardous Materials. The plans submitted by the utility to the city shall identify any hazardous materials that may be involved in the construction of the new facilities or removal of any existing facilities.

D. Operational Restrictions.

1. Construction operations on rights-of-way may, at the discretion of the city, be required to be discontinued when such operations would create hazards to traffic or the public health, safety, and welfare. Such operations may also be required to be discontinued or restricted when conditions are such that construction would result in extensive damage to the right-of-way or other property.

2. These restrictions may be waived by the superintendent of public works when emergency work is required to restore vital utility services.

3. Unless otherwise permitted by the city, the hours of construction are those set forth in Chapter 9-53 of this code (See Section 9-53-020 of this code).

E. Location of Existing Facilities. Any utility proposing to construct facilities in the city shall contact J.U.L.I.E. and ascertain the presence and location of existing aboveground and underground facilities within the rights-of-way to be occupied by its proposed facilities. The city will make its permit records available to a utility for the purpose of identifying possible facilities. When notified of an excavation or when requested by the city or by J.U.L.I.E., a utility shall locate and physically mark its underground facilities within forty-eight (48) hours, excluding weekends and holidays, in accordance with the Illinois Underground Facilities Damage Prevention Act (220 ILCS 50/1 et seq.). (Ord. 3443 § 2 (Exh. A), 2021)

12-26-170 Vegetation control.

A. Electric Utilities—Compliance with State Laws and Regulations. An electric utility shall conduct all tree trimming and vegetation control activities in the right-of-way in accordance with applicable Illinois laws and regulations, and additionally, with such local franchise or other agreement with the city as permitted by law.

B. Other Utilities—Tree Trimming Permit Required. Tree trimming that is done by any other utility with facilities in the right-of-way and that is not performed pursuant to applicable Illinois laws and regulations specifically governing same, shall not be considered a normal maintenance operation, but shall require the application for, and the issuance of, a permit, in addition to any other permit required under this chapter.

1. Application for Tree Trimming Permit. Applications for tree trimming permits shall include assurance that the work will be accomplished by competent workers with supervision who are experienced in accepted tree pruning practices. Tree trimming permits shall designate an expiration date in the interest of assuring that the work will be expeditiously accomplished.

2. Damage to Trees. Poor pruning practices resulting in damaged or misshapen trees will not be tolerated and shall be grounds for cancellation of the tree trimming permit and for assessment of damages. The city will require compensation for trees extensively damaged and for trees removed without authorization. The formula developed by the International Society of Arboriculture will be used as a basis for determining the compensation for damaged trees or unauthorized removal of trees. The city may require the removal and replacement of trees if trimming or radical pruning would leave them in an unacceptable condition.

C. Specimen Trees or Trees of Special Significance. The city may require that special measures be taken to preserve specimen trees or trees of special significance. The required measures may consist of higher poles, side arm extensions, covered wire or other means.

D. Chemical Use.

1. Except as provided in the following subsection, no utility shall spray, inject or pour any chemicals on or near any trees, shrubs or vegetation in the city for any purpose, including the control of growth, insects or disease.

2. Spraying of any type of brush-killing chemicals will not be permitted on rights-of-way unless the utility demonstrates to the satisfaction of the superintendent of public works that such spraying is the only practicable method of vegetation control. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-180 Removal, relocation, or modifications.

A. Notice. Within ninety (90) days following written notice from the city, a utility shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any utility facilities within the rights-of-way whenever the corporate authorities have determined that such removal, relocation, change or alteration is reasonably necessary for the construction, repair, maintenance, or installation of any city improvement in or upon, or the operations of the city in or upon, the rights-of-way. Wireless providers are required to provide the city with written notice of their intent to sell or transfer small wireless facilities. Such notice must include the name and contact information of the new wireless provider.

B. Removal of Unauthorized Facilities. Within thirty (30) days following written notice from the city, any utility that owns, controls, or maintains any unauthorized facility or related appurtenances within the rights-of-way shall, at its own expense, remove all or any part of such facilities or appurtenances from the rights-of-way. A facility is unauthorized and subject to removal in the following circumstances:

1. Upon expiration or termination of the permittee’s license or franchise, unless otherwise permitted by applicable law;

2. If the facility was constructed or installed without the prior grant of a license or franchise, if required;

3. If the facility was constructed or installed without prior issuance of a required permit in violation of this chapter; or

4. If the facility was constructed or installed at a location not permitted by the permittee’s license or franchise.

C. Emergency Removal or Relocation of Facilities. The city retains the right and privilege to cut or move any facilities located within the rights-of-way of the city, as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency. If circumstances permit, the municipality shall attempt to notify the utility, if known, prior to cutting or removing a facility and shall notify the utility, if known, after cutting or removing a facility.

D. Abandonment of Facilities.

1. Small Wireless Facilities. As used in this section, a small wireless facility that is not operated for a continuous period of twelve (12) months shall be considered abandoned. The owner of an abandoned small wireless facility shall notify the city within ninety (90) days of it being abandoned and the owner of that small wireless facility must remove the small wireless facility within ninety (90) days after sending such written notice to the city. The city may direct the wireless provider to remove all or any portion of the facility if the superintendent of public works determines that such removal will be in the best interest of the public health, safety and welfare. If the small wireless facility is not removed within ninety (90) days of such notice, the city may remove or cause the removal of the facility pursuant to the terms of its pole attachment agreement for city utility poles or through whatever actions are provided for abatement of nuisances or by other law for removal and cost recovery.

2. Other Utility Facilities. As used in this section, a facility that is not operated for a continuous period of twelve (12) months shall be considered abandoned. Upon abandonment of a facility within the rights-of-way of the city, the utility shall notify the city within ninety (90) days. The owner of the abandoned facility must remove the facility within ninety (90) days after sending such written notice to the city. The city may direct the utility to remove all or any portion of the facility if the superintendent of public works determines that such removal will be in the best interest of the public health, safety and welfare. If the facility is not removed within ninety (90) days of such notice, the city may remove or cause the removal of the facility pursuant to the terms of its pole attachment agreement for city utility poles or through whatever actions are provided for abatement of nuisances or by other law for removal and cost recovery. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-190 Cleanup and restoration.

The utility shall remove all excess material and restore all turf and terrain and other property within ten (10) days after any portion of the rights-of-way is disturbed, damaged or destroyed due to construction or maintenance by the utility, all to the satisfaction of the city. This includes restoration of entrances and side roads. Restoration of roadway surfaces shall be made using materials and methods approved by the superintendent of public works. Such cleanup and repair may be required to consist of backfilling, regrading, reseeding, resodding, or any other requirement to restore the right-of-way to a condition substantially equivalent to that which existed prior to the commencement of the project. The time period provided in this section may be extended by the superintendent of public works for good cause shown. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-200 Maintenance and emergency maintenance.

A. General. Facilities on, over, above, along, upon, under, across, or within rights-of-way are to be maintained by or for the utility in a manner satisfactory to the city and at the utility’s expense.

B. Emergency Maintenance Procedures. Emergencies may justify noncompliance with normal procedures for securing a permit:

1. If an emergency creates a hazard on the traveled portion of the right-of-way, the utility shall take immediate steps to provide all necessary protection for traffic on the highway or the public on the right-of-way including the use of signs, lights, barricades or flaggers. If a hazard does not exist on the traveled way, but the nature of the emergency is such as to require the parking on the shoulder of equipment required in repair operations, adequate signs and lights shall be provided. Parking on the shoulder in such an emergency will only be permitted when no other means of access to the facility is available.

2. In an emergency, the utility shall, as soon as possible, notify the superintendent of public works or his or her duly authorized agent of the emergency, informing him or her as to what steps have been taken for protection of the traveling public and what will be required to make the necessary repairs. If the nature of the emergency is such as to interfere with the free movement of traffic, the city police shall be notified immediately.

3. In an emergency, the utility shall use all means at hand to complete repairs as rapidly as practicable and with the least inconvenience to the traveling public.

C. Emergency Repairs. The utility must file in writing with the city a description of the repairs undertaken in the right-of-way within forty-eight (48) hours after an emergency repair. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-210 Variances.

A. Request for Variance. A utility requesting a variance from one (1) or more of the provisions of this chapter must do so in writing to the superintendent of public works as a part of the permit application. The request shall identify each provision of this chapter from which a variance is requested and the reasons why a variance should be granted.

B. Authority to Grant Variances. The superintendent of public works shall decide whether a variance is authorized for each provision of this chapter identified in the variance request on an individual basis.

C. Conditions for Granting of Variance. The superintendent of public works may authorize a variance only if the utility requesting the variance has demonstrated that:

1. One (1) or more conditions not under the control of the utility (such as terrain features or an irregular right-of-way line) create a special hardship that would make enforcement of the provision unreasonable, given the public purposes to be achieved by the provision; and

2. All other designs, methods, materials, locations or facilities that would conform with the provision from which a variance is requested are impracticable in relation to the requested approach.

D. Additional Conditions for Granting of a Variance. As a condition for authorizing a variance, the superintendent of public works may require the utility requesting the variance to meet reasonable standards and conditions that may or may not be expressly contained within this chapter but which carry out the purposes of this chapter.

E. Right to Appeal. Any utility aggrieved by any order, requirement, decision or determination, including denial of a variance, made by the superintendent of public works under the provisions of this chapter shall have the right to appeal to the city council, or such other board or commission as it may designate. The application for appeal shall be submitted in writing to the city clerk within thirty (30) days after the date of such order, requirement, decision or determination. The city council shall commence its consideration of the appeal at council’s next regularly scheduled meeting occurring at least seven (7) days after the filing of the appeal. The city council shall timely decide the appeal. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-220 Penalties.

Any person who violates, disobeys, omits, neglects or refuses to comply with any of the provisions of this chapter shall be subject to fine in accordance with the penalty provisions of this code. There may be times when the city will incur delay or other costs, including third-party claims, because the utility will not or cannot perform its duties under its permit and this chapter. Unless the utility shows that another allocation of the cost of undertaking the requested action is appropriate, the utility shall bear the city’s costs of damages and its costs of installing, maintaining, modifying, relocating, or removing the facility that is the subject of the permit. No other administrative agency or commission may review or overrule a permit-related cost apportionment of the city. Sanctions may be imposed upon a utility that does not pay the costs apportioned to it. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-230 Enforcement.

Nothing in this chapter shall be construed as limiting any additional or further remedies that the city may have for enforcement of this chapter. (Ord. 3443 § 2 (Exh. A), 2021)

12-26-240 Severability.

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions hereof. (Ord. 3443 § 2 (Exh. A), 2021)