(A) Permit required. Unless otherwise specifically provided by law, it shall be unlawful for any person to lay, construct, operate, maintain, offer for lease or make available for any use whatsoever, any facilities across, along, over, above or under any public right-of-way for any private or commercial purpose unless such person has been issued a permit to occupy such right-of-way under this subchapter, unless said occupation is pursuant to a franchise agreement between user and the city.
(B) Permit applications. Applications for permits under this subchapter shall be made to the city’s Engineering Department. Each such application shall include the following:
(1) A complete set of construction plans for all facilities to be located in the right-of-way under the permit, bundled into a single file, formatted to 11 inches by 17 inches, which includes:
(a) The name, location, address (if available) and GPS coordinates for the facilities;
(b) Labeled and dimensioned site plan and elevation plans of the facilities with, as applicable, key symbols, ROW lines, property lines, street information, topographical information, existing and proposed utilities, adjacent property uses and easements;
(c) Structural plans of the facilities signed and stamped by a professional engineer licensed in the state;
(d) Dimensions of the facilities, and a description of type, color and finish of all visible construction materials;
(e) Accurate visual depictions or representations of all above-ground components of the facilities;
(f) An applicant for a permit for a small wireless facility who is a wireless provider and submits an application for a permit to collocate small wireless facilities on an existing utility pole or wireless support structure or for a permit for approval for the installation, modification or replacement of a utility pole to support the installation of a small wireless facility shall not be required to provide more information to obtain a permit than a communication service provider that is not a wireless provider, except as directly related to the impairment of wireless service in the immediate area of the proposed wireless facility and except that an applicant may be required to include construction and engineering plans and information demonstrating compliance with the criteria set forth below and in §§ 151.365 and 151.368;
(g) Anticipated duration of project in calendar days; and
(h) A copy of the current franchise agreement which allows said applicant to occupy the right-of-way, as allowed by state law; and
(2) An attestation that the proposed facilities satisfy each of the aesthetic and design standards set forth in this subchapter, except for such standards, if any, for which applicant is concurrently submitting a request for relief under § 151.411;
(3) Evidence that, prior to commencement of any work in the right-of-way, pursuant to the application, the applicant will have the performance or construction bond required under this subchapter in place;
(4) Evidence of the applicant’s insurance required under this subchapter;
(5) All applicable building and permit fees;
(6) The deposit, if any, requested by the city pursuant to§ 151.410 for independent technical and legal review;
(7) Such other submission requirements set forth in the city’s published application form;
(8) A statement disclosing any prior permit violations; and
(9) The city may deny a permit if the proposed application:
(a) Materially and demonstrably interferes with the safe operation of traffic control equipment or the right-of-way;
(b) Materially interferes with sight lines or clear zones for air or land transportation or pedestrians;
(c) Materially interferes with compliance with the federal Americans with Disabilities Act of 1990 or similar federal or state standards regarding pedestrian access or movement;
(d) Fails to comply with the spacing requirements set forth in § 151.409;
(e) Fails to comply with applicable codes;
(f) Fails to comply with the aesthetic and other design requirements set forth in § 151.409; or
(g) Designates the location of a new utility pole within seven feet in any direction of an electrical conductor unless the applicant obtains the written consent of the public power supplier that owns or manages the electrical conductor.
(C) Initial review of application; completeness. The City Engineer shall review the application and, within 20 days after receipt, shall notify the applicant in writing whether the application is complete. If an application is incomplete, the city will specifically identify the missing information in writing. The 90-day processing deadline shall restart upon the first finding of incompleteness. The applicant may resubmit the completed application within 30 days without additional charge. Subsequent findings of incompleteness shall toll the 90-day processing deadline, and any subsequent review shall be limited to the specifically identified information subsequently completed. If the applicant makes any material changes in a resubmission, other than the material changes required by the city, the applicant shall be required to make a new application and submit a new application fee. Subsequent findings of incompleteness will toll the deadline from the time the city sends notice of the incompleteness to the time the applicant provides the missing information. The application processing deadline also may be tolled if requested by applicant in order to accommodate applicant’s request for relief submitted by applicant pursuant to §§ 151.411 or otherwise by agreement between the city and the applicant.
(D) Final review; issuance; denial. Unless tolled the city will review and process the application no later than 90 days after receiving it. The city may extend the 90-day application processing deadline for a period of ten business days if the city notifies the applicant in advance before the day on which approval or denial is originally due. The city will notify the applicant in writing whether its application has been approved or denied. If the application is denied, the city shall document the basis for denial, including any specific provisions of this subchapter or other applicable law on which the denial was based. The applicant may cure the deficiencies identified by the city and resubmit the application within 30 days without paying an additional application fee.
(E) Term and renewal. The term of each permit to occupy the right-of-way issued under this subchapter shall be set forth in the permit. The applicant may apply to renew a permit issued hereunder for an equivalent duration and the city shall renew the permit for such period provided the applicant demonstrates compliance with the criteria set forth in this section. Applications for permit renewal may be submitted no earlier than 180 days prior to the expiration of the then current permit and no later than 90 days prior to the expiration of the then current permit. Notwithstanding the foregoing, permit renewals involving § 151.368 shall be processed in the manner provided for under applicable law including § 151.368.
(F) Permit conditions. All permits to occupy the right-of-way issued under this subchapter are issued subject to the following conditions, and each applicant agrees, by accepting such permit, to be bound by the same.
(1) All facilities shall be constructed, operated, maintained, repaired, removed, modified and restored in strict compliance with all current applicable technical, safety and safety-related codes adopted by the city, the state or the federal government. The applicant shall, at its sole cost and expense, inspect, keep and maintain its facilities in the right-of-way in safe condition, in good order and repair and as otherwise according to best industry practices.
(2) The applicant shall, at its sole cost and expense, promptly restore the right-of-way to its original condition after it completes work related to the facilities. The city may require an applicant to repair all damage to a right-of-way directly caused by the activities of the applicant in the right-of-way and return the right-of-way to equal or better condition to that before the damage occurred. If the applicant fails to make the repairs that are reasonably required by the city within 14 days after written notice, the city may undertake such repairs and charge the applicant the cost of such repairs. The city shall grant an extension of up to ten days to complete such repairs if the applicant requests such extension within the original 14-day period. In the event of immediate threat to life or safety or to prevent serious injury, the city may immediately undertake to restore the site and then notify of and charge the applicant for all restoration costs.
(3) Except as provided for in § 151.368, the applicant assumes the risk of any loss, damage to, or loss of use of any facilities which are damaged, destroyed or taken out of service due to applicant’s use or presence in or on the right-of-way.
(3) The applicant shall undertake only the activities enumerated in its permit to occupy the right-of-way and such permit shall not create a property right or grant authority to the applicant to infringe upon the rights of others who may own or have other interests in a right-of-way, utility easement or other privately owned property. Except as otherwise provided in this code or applicable state or federal law, any additions or changes to the facilities or activities enumerated in applicant’s existing permit shall require a new permit.
(5) Neither the applicant nor its facilities shall interfere with any traffic-control devices and other public works equipment, water, wastewater, stormwater, gas, electrical or other public utility infrastructure; or the facilities of any other occupant of the right-of-way permitted hereunder.
(6) The city shall have the right at any time to require a change of location of the facilities when in its judgement it becomes necessary or advisable as a matter of safety, or on account of a change of grade, resurfacing, repair or reconstruction of any right-of-way. If the owner of such facilities has not moved or relocated the facilities within 30 days after the city requests the same in writing, the city may undertake such movement or relocation and charge the owner the costs of the same.
(7) The city retains the right and privilege to cut or move any facilities, as the city may determine, in its sole discretion, to be necessary, appropriate or useful in response to any public emergency. If circumstances permit, the city shall notify the applicant and provide an opportunity for applicant to move its own facilities prior to cutting or removing the facilities. In all cases, the city shall notify the applicant after cutting or removing the facilities as promptly as reasonably possible.
(8) The applicant shall immediately notify the city in the event of an emergency regarding the applicant’s facilities that may affect public health or safety, and such notice shall include, at a minimum, the nature of the emergency and the applicant’s planned response to the emergency.
(9) In addition to notifying the city, the applicant shall comply with the state’s One Call Notification Act before commencing any excavation or similar work in the right-of-way.
(10) The applicant acknowledges that applications and all supporting written material applicant submits to the city may be public records subject to the state’s Public Records Law. While an applicant may designate any such public records as “proprietary” or “confidential,” the city shall treat them as such only to the extent expressly permitted by the state’s Public Records Law and, other than the cost of the city’s routine response to public records requests, the city shall be under no obligation to incur any costs to protect the same from disclosure.
(11) Prior to commencement, and at all times during, any work performed by or on behalf of applicant in the right-of-way, the applicant shall maintain a performance or construction bond, in form acceptable to the city, equal to at least 100% of the estimated cost of the facilities and related work covered by the application.
(12) (a) During the term of any permit to occupy the right-of-way issued hereunder, the applicant shall maintain comprehensive general liability, automobile, workers compensation, employer’s liability and umbrella insurance in form and amount consistent with the city’s published requirements for the same.
(b) All such insurance policies shall include the city and its agents as additional insureds and shall not be modified or cancelled by the applicant without 30 days prior written notice being given to the city along with proof of replacement coverage. Upon receipt of notice from its insurer(s), the applicant shall provide the city with 30-days prior written notice of any prospective cancellation. The applicant shall provide proof of replacement coverage prior to the effective cancellation date.
(13) The applicant shall defend, indemnify and hold harmless the city and its agents, officers, officials and employees from any and all damages, liabilities, injuries, losses, attorneys’ fees, costs and expenses, whether for personal injury, death or property damage, arising out of or in any way related to the activities or performance of the applicant or its agents. In the event the applicant becomes aware of any actions or claims, the city shall promptly be notified by the applicant. In the event the city is a named defendant in any such claim or lawsuit, it is expressly agreed that the city shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the city’s defense, and the applicant shall reimburse the city for any costs, expenses and attorneys’ fees directly and necessarily incurred by the city in the course of the defense.
(14) (a) In addition to all other remedies available to the city under this code or other applicable law, the city may revoke an applicant’s permit to occupy the right-of-way if the applicant fails to comply with any of the conditions set forth in this subchapter, and upon such revocation, may direct applicant, at applicant’s cost, to remove applicant’s facilities from the right-of-way and restore the right-of-way to its original condition.
(b) If the applicant fails to remove its facilities and restore the right-of-way within 30 days after the city’s written request, the city may cause such work to be done and applicant shall reimburse the city for the costs of such work upon city’s written demand for the same.
(Ord. 23-09, passed 8-21-2023) Penalty, see § 151.999