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§ 54.01 PURPOSE; SCOPE; APPLICABILITY; PRESCRIPTION.
   (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 property by utilities, by establishing uniform standards to address issues presented by 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 utility facilities;
      (5)   Protect against increased stormwater run-off 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 utility facilities locations.
   (C)   Facilities subject to this chapter. Except as provided by applicable law, this chapter shall apply to all excavations, use, construction, operation, and maintenance of facilities or structures in the rights-of-way by any person other than the city. No utility shall commence or continue with the operation of any facilities or structures in the rights-of-way, except as provided and in compliance with this chapter.
   (D)   Franchise or license required.
      (1)   Franchise. Except as may be otherwise provided by law, no utility may construct, maintain, own, control or use facilities or structures in the rights-of-way without a binding lawful franchise with the city granting the privilege of locating such facilities on, over, above, along, upon, under, across or within the city's rights-of-way. In the event of any conflict with, or inconsistency between, the provisions of this chapter and the provisions of any franchise, the provisions of such franchise shall govern and control during the term of such franchise, and any lawful renewal or extension thereof authorized by the city. All utilities claiming to be engaged in the sale of telecommunications at retail pursuant to ILCS Ch. 35, Act 636, §§ 5-1 et seq. must so state by verified application, and provide the city with the applicable resale number as provided in ILCS Ch. 35, Act 636, § 5-45(a).
      (2)   License for incidental use. Persons desiring to install facilities qualifying as merely an incidental use, which includes installation of temporary structures or minor incidental uses in the rights-of-way, such as mailboxes, driveway aprons, ingress or egress facilities, and similar incidental uses, that utilize a small area of the rights-of-way and serves the principal structure, may be permitted without a franchise pursuant to a license issued by the Director. The Director shall have discretion to establish such application, requirements, and conditions applicable to such uses consistent with the purposes of this chapter or as otherwise established by law. Any person granted a license hereunder shall be subject to the applicable requirements of this chapter.
   (E)   Grant and nature of approval; terms and compensation. The authority granted by the city in franchise or license shall be for non-exclusive use of the rights-of-way. Such grant does not in any way limit the continuing authority of the city through the proper exercise of its statutory powers to adopt and enforce ordinances necessary to provide for the health, safety, and welfare of the public. The city specifically reserves the right to grant, at any time, such additional agreements or other rights to use the rights-of-way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable laws. The granting of any franchise or license shall not be deemed to create any property interest of any kind in favor of the person, nor shall it create any relationship of agency, partnership, joint venture, or employment between the parties. Except as provided in § 54.03(G), all franchises shall be approved by ordinance or resolution of the City Council on a nondiscriminatory basis, provided that the utility is in compliance with all applicable requirements. All licenses may be approved by the Director on a nondiscriminatory basis, provided that the applicant is in compliance with all applicable requirements. Each franchise and license shall include terms of use and be deemed to incorporate the terms of this chapter and other applicable laws of the city, except as may be expressly stated in such franchise or license. Franchise compensation and terms shall be as provided in this code or as maybe otherwise lawfully established in the franchise.
   (F)   Conflicts with other chapters. This chapter supersedes all chapters or parts of chapters adopted prior hereto that are in conflict herewith, to the extent of such conflict.
   (G)   Conflicts with state and federal laws; preemption. No provision of this chapter shall apply to any circumstance in which such application shall be unlawful under superseding state or federal law. Furthermore, if any section, division, sentence, clause, phrase, or portion of this chapter is now or in the future superseded or preempted by state or federal law, or found by a court of competent jurisdiction to be unauthorized, that provision shall be automatically interpreted and applied as required by law. In the event that applicable state or federal laws or regulations conflict with the requirements of this chapter, the person or utility shall comply with the requirements of this chapter, to the maximum extent possible without violating state or federal laws or regulations.
   (H)   Sound engineering judgment. The city shall use sound engineering judgment when administering this chapter and may 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.
   (I)   No warranty. The city makes no express or implied representation or warranty regarding its rights to authorize the installation or construction of facilities on any particular segment of rights-of-way and shall not be liable for any damage therefrom. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon the utility. Such utility shall be wholly liable for any damages to facilities or other property due to excavation, facilities construction, or other ROW work performed prior to obtaining the location of all facilities, without cost or liability to the city. No person shall make or attempt to make repairs, relocation, or replacement of damaged or disturbed facilities or uses without the approval of the owner of such facilities.
   (J)   Use of city or third-party facilities. No franchise or license shall be deemed to grant the right to use facilities or other property owned or controlled by the city or a third party, and no such use shall occur, without the express written consent of such party (on file with the city and subject to other applicable requirements), nor shall any franchise or license excuse such person from first obtaining a pole attachment agreement or other express consent for such right or use before locating on the facilities controlled or owned by the city or a third party.
   (K)   Lease required for public lands. Unless otherwise provided, use or installation of any facilities in non-right-of-way public property of the city shall be permitted only if a lease agreement or other separate written approval has been negotiated and approved by the city, with such reasonable terms as the city may require.
   (L)   Condition precedent to permit. Unless otherwise required by applicable law, no permit required by this chapter may be issued unless of until such person has a valid franchise or license with the city that authorizes that person's use of the rights-of-way. Unless prohibited by applicable law, in addition to any other reason provided herein, the Director may deny a permit to any person that does not have a valid franchise or license with the city.
   (M)   Transferability. Except as provided in this chapter or as otherwise required by law, no franchise, license, or permit maybe transferred or assigned to a third party without the written application to, and consent of the city, based on the requirements and policies of this chapter. The city shall not unreasonably withhold its consent as provided herein, but any costs incurred shall be paid by the utility to the extent allowed by law.
   (N)   Forfeiture of agreement and privilege. In case of failure on the part of the person or utility, including its successors and assigns, to comply with any of the provisions of this chapter, or the provisions of franchise or license, or if the person or utility, its successors and assigns, should do or cause to be done any act or thing prohibited by or in violation of this chapter, or the terms of the authorization of such use, or otherwise loses authority to provide its service in the city, the person or utility, its successors and assigns, shall forfeit all rights and privileges permitted by this chapter and any franchise or license, and all rights hereunder shall cease, terminate, and become null and void, provided that the forfeiture shall not take effect until the city shall carry out the following proceedings.
      (1)   Before the city declares the forfeiture or revocation of a franchise or license, it shall first serve a written notice upon the person, setting forth in detail the neglect or failure complained of.
      (2)   The person shall have 30 days thereafter, or such other reasonable period established by the City Council, in which to cure the default by complying with the conditions of the franchise or license, and fully remedying any default or violation.
      (3)   If at the end of such period the city determines that the conditions have not been complied with, and that the person did not reasonably and in the public interest require more than 30 days to cure the default, the city shall take action by an affirmative vote of the City Council present at the meeting, and voting to terminate the franchise or license, setting out the grounds upon which the agreement or other authorization is to be forfeited or revoked.
      (4)   Nothing herein shall prevent the city from invoking any other remedy or from declaring immediate forfeiture where the default is incapable of being cured by the utility, including where such defaults or violations have repeatedly occurred.
   (O)   No cause of action against the city. A person or utility shall have no damages remedy or monetary recourse whatsoever against the city for any loss, cost, expense, or damage arising from any of the provisions or requirements of any franchise or license, or because of the enforcement thereof by the city, or from the use of the rights-of-way. Nothing herein shall preclude the person or utility from seeking injunctive or declaratory judgment relief against the city where such relief is otherwise available and the requirements therefor are otherwise satisfied.
   (P)   Review required; use of existing facilities. The design, location, and nature of all facilities shall be subject to the review and approval of the City Engineer. Such review shall be on a nondiscriminatory basis in application of city policy, and approvals shall not be unreasonably withheld. All new facilities or structures shall collocate on existing poles or existing conduit, trenches or other facilities, to minimize unnecessary use of rights-of-way space, to reduce potential existing or future interference and obstructions, and to reduce the cost to the public or others therefrom, and to maximize the public's ability to use and license appropriate private or public uses of the rights-of-way in the public interest (except where preempted by law or where good cause is established as determined by the city applying these objectives). Where existing poles or facilities are available, or exist at or near the proposed use, unless otherwise approved, the applicant must either use such facilities, or file a written request, verified by the applicant, for exception specifying the specific reasons why such facilities are not available or feasible to be used, and addressing the objectives hereof. City height limitations, applicable zoning restrictions, and general city policies with regard to all users of the rights-of-way shall be applicable to all facilities. The City Engineer may establish such regulations or policies as maybe deemed necessary or appropriate to effect this provision. For applications for installation of any facility in the rights-of-way, the most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the official zoning map.
      (1)   (a)   No utility may erect, construct, or install new utility poles or other facilities above the surface of the rights-of-way without the written permission of the city based on good cause established by the utility and found by the city. Good cause may be shown by demonstrating the following;
            1.   There exist other utility poles or support structures, proximate to the area, that are located above ground. For purposes of showing good cause under this factor, evidence of good cause for new utility poles shall only be compared to existing utility poles, evidence of good cause for new support structures shall only be compared to existing support structures;
            2.   The proposed underground installation is impossible, impractical, or not technically feasible; or
            3.   When, in the city's judgment, the proposed utility pole installation will be made at a location, and will employ suitable design and materials, to provide the greatest protection of aesthetic qualities of the proximate area without adversely affecting safety.
            4.   Where reasonable and appropriate and where adequate rights-of-way exist, the utility shall place above-ground facilities underground in conjunction with city capital improvement projects and/or at specific locations requested by the city provided that such placement is practical, efficient, and economically feasible. The requirements herein shall not prohibit the replacement of existing utility poles.
      (2)   (a)   All small wireless facilities, as defined in ILCS Ch. 50, Act 840, § 10, in the rights-of-way shall comply with the following requirements, in addition to any other design, safety, spacing, or construction requirements as may be outlined in a franchise agreement or the city's code:
            1.   The maximum height of a small wireless facility that is collocated on a utility pole or support structure shall be no more than ten feet above the utility pole or support structure that such small wireless facility is collocated;
            2.   All written design standards, currently in effect or as may hereafter be adopted by the Director, applicable to the city's utility poles or support structures shall be followed, along with all stealth, concealment, and any other aesthetic requirements or written design plans applicable to such utility poles or support structures on record, adopted, or in effect within the city, including such stealth, concealment, or other aesthetic requirements for historic landmarks or within a district currently, or hereafter, zoned historic;
            3.   The small wireless facility and any associated equipment permitted shall be painted the same or similar color as the utility pole or support structure upon which the facility and/or equipment is collocated. If good cause is shown for ground-mounted equipment, such ground-mounted equipment associated with a collocated small wireless facility shall be of such design, including color and size, such that it maximally blends in to the built environment of the proximate area;
            4.   New or replacement utility poles or support structures may not exceed the higher of:
               A.   Forty-five feet AGL; or
               B.   Ten feet in height above the tallest existing utility pole, other than a utility pole supporting only wireless facilities, that is in place on the date that an applicant submits an application to the city, that is located within 300 feet of the proposed utility pole or support structure and that is in the same ROW within the jurisdiction of the city; provided, however, that the city may designate which intersecting ROW within 300 feet of the proposed utility pole or support structure shall control the height limitation for such facility; without a special use permit approved by City Council pursuant to § 154.141, as may be hereinafter amended;
            5.   A utility must comply with any requirements imposed by any contract between the city and a private property owner that concerns, or relates to, design or construction standards for utility poles located in the rights-of-way;
            6.   No new utility poles or other support structures may be installed within the city's rights-of-way without the prior approval of the city upon good cause shown for compliance with design and aesthetic requirements. This requirement does not prohibit modification of existing utility poles or support structures to allow for collocation of small wireless facilities. Replacement utility poles shall be permitted as required by applicable law. In such a circumstance requiring a replacement pole for a small wireless facility, replacement utility poles shall be at the sole cost of the utility proposing the replacement utility pole;
            7.   No ground-mounted equipment associated with the small wireless facility will be permitted. Waiver to this requirement may be granted by the City Administrator upon good cause showing that the utility requires ground-mounted equipment to utilize the site for a small wireless facility. If good cause is shown permitting such ground-mounted equipment for a small wireless facility, no other ground-mounted equipment shall be allowed for the utility, or for the particular utility if the person provides only infrastructure-related services for the utility, within 250 feet of that approved ground-mounted equipment;
            8.   The proposed collocation, modification, or replacement of utility poles or support structures where approved pursuant to this franchise shall cause only the minimum possible interference with the use of the rights-of-way and shall cause only the minimum possible impact upon and interference with the rights and reasonable convenience of the property owners who adjoin said rights-of-way;
            9.   The height of all portions of the small wireless facility shall be located at least eight feet above ground level so as not to interfere with pedestrian or vehicle traffic;
            10.   No portions of the small wireless facility shall extend horizontally from the surface of the utility pole or collocated support structure more than 16 inches;
            11.   If the proposed utility pole or support structure the person proposes to locate its small wireless facility on is not structurally sound, but the Director finds such site to be a desired location, the Director can require the person to install a substantially similar utility pole or support structure, at the person's cost; and
            12.   Notwithstanding the maximum size descriptions which define a small wireless facility contained in ILCS Ch. 50, Act 840, § 10 or otherwise contained in applicable law, the proposed installation or collocation shall endeavor to use the smallest suitable vaults, boxes, equipment enclosures, power pedestals, and/or cabinets then in use by the person, regardless of location, for the particular application.
         (b)   The City Administrator may further waive one or more of these requirements upon good cause shown by the person, and provided a showing that the waiver is the minimum necessary to accomplish the purposes of this division (P), or as otherwise required by applicable law. The burden of proof for any waiver shall be wholly on the person and must be shown by clear and convincing evidence.
   (Q)   Utility responsible for costs. The utility shall be responsible for all reasonable costs borne by the city that are directly associated with the utility's installation, maintenance, repair, operation, use, and replacement of its facilities in the rights-of-way that are not otherwise accounted for as part of a permit fee established pursuant to this chapter, to the extent permitted by law. All such costs shall be itemized, and the city's books and records related to these costs shall be made available upon request of the utility.
(Ord. 2022-61, passed 11-7-2022)
§ 54.02 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. Admin. Code 530.30, unless the context clearly requires otherwise.
   AASHTO. American Association of State Highway and Transportation Officials.
   ANSI. American National Standards Institute.
   ANTENNA. Any device that transmits and/or receives radio waves for voice, data or video communications purposes, including, but not limited to, television, AM/FM radio, microwave, cellular telephone and similar forms of communications. A combination of panels, boxes, or other antenna physically connected and designed in conjunction to receive signals at one location in the system shall be considered one ANTENNA.
   APPLICANT. A person applying for a franchise, license, or any permit or other authorization to install, maintain, repair or otherwise physically access facilities in the rights-of-way under this chapter.
   ASTM. American Society for Testing and Materials.
   BACKFILL. The methods or materials for replacing excavated material in a trench or pit.
   BORE or BORING. To excavate an underground cylindrical cavity for the insertion of a pipe or electrical conductor.
   CABLE OPERATOR. That term as defined in 47 U.S.C. § 522(5).
   CABLE SERVICE. That term as defined in 47 U.S.C. § 522(6).
   CABLE SYSTEM. That term as defined in 47 U.S.C. § 522(7).
   CARRIER PIPE. The pipe enclosing the liquid, gas or slurry to be transported.
   CASING. A structural protective enclosure for transmittal devices such as carrier pipes, electrical conductors and fiber optic devices.
   CITY. The City of Troy, Illinois.
   CITY UTILITY POLE. A utility pole owned or operated by the city in public rights-of-way.
   CLEAR ZONE. 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 non-recoverable 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. Protective wrapping or mastic cover applied to buried pipe for protection against external corrosion.
   CODE. The Municipal Code of the City of Troy, Illinois.
   CONDUCTOR. Wire carrying electrical current.
   CONDUIT. A casing or encasement for wires or cables.
   CONSTRUCTION, CONSTRUCT or BUILDING OPERATIONS. The installation, repair, maintenance, placement, alteration, enlargement, demolition, modification or abandonment in place of facilities.
   COVER. The depth of earth or backfill over buried utility pipe or conductor.
   CROSSING FACILITY. A facility that crosses one or more right-of-way lines of a right-of-way.
   DIRECTOR OF PUBLIC WORKS. The city's Director of Public Works or his or her designee.
   DISRUPT THE RIGHT-OF-WAY. 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. 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. Provision of a protective casing.
   ENGINEER. The City Engineer or his or her designee.
   EQUIPMENT. Materials, tools, implements, supplies and/or other items used to facilitate construction of facilities.
   EXCAVATION. The making of a hole or cavity by removing material, or laying bare by digging.
   EXTRA HEAVY PIPE. Pipe meeting ASTM standards for this pipe designation.
   FACILITY. All structures, devices, objects and materials (including, but not limited to, track and rails, wires, ducts, fiber optic cable, antenna, vaults, boxes, equipment enclosures, cabinets, pedestals, transmitters, meters, foundations, poles, towers, conduits, grates, covers, pipes, cables and appurtenances thereto, and any other equipment, infrastructure, structures or obstruction) located on, over, above, along, upon, under, across or within rights-of-way under this chapter. FACILITY shall not include a temporary, lawful presence on rights-of-way such as vehicular parking.
   FRANCHISE AGREEMENT or FRANCHISE. A binding and accepted ordinance or right-of-way agreement with a person or utility, executed by the city, authorizing the operation of facilities within the rights-of-way of the city.
   FREESTANDING FACILITY. A facility that is not a crossing facility or a parallel facility, such as an antenna, transformer, pump or meter station.
   FRONTAGE ROAD. Roadway, usually parallel, providing access to land adjacent to the highway, where it is precluded by control of access to a highway.
   HAZARDOUS MATERIALS. Any substance or material that, due to its quantity, form, concentration, location or other characteristics, is determined by the City Engineer (Director of Public Works) to pose an unreasonable and imminent risk to the life, health or safety of persons, 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. 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. The Illinois Highway Code, ILCS Ch. 605, Act 5, §§ 1-101 et seq., as amended from time to time.
   HOLDER. A person or entity that has received authorization to offer or provide cable or video service from the ICC pursuant to the State Cable and Video Competition Law, ILCS Ch. 220, Act 5, § 21-401.
   IDOT. Illinois Department of Transportation.
   ICC. Illinois Commerce Commission.
   INCIDENTAL USE. Facilities of a minor nature, such as mailboxes, driveway aprons, private cross- connections or other incidental facilities, that may be permitted by license issued by the Director as provided herein.
   JACKING. Pushing a pipe horizontally under a roadway by mechanical means, with or without boring.
   JETTING. Pushing a pipe through the earth using water under pressure to create a cavity ahead of the pipe.
   JOINT USE. The use of pole lines, trenches or other facilities by two or more utilities.
   J.U.L.I.E. The Joint Utility Locating Information for Excavators utility notification program.
   LICENSE. The executed agreement between the city and a person to use and occupy the rights-of-way for the purpose of installing incidental facilities in the rights-of-way, or incidental uses such as ingress and egress facilities, lateral lines, mailboxes or driveway aprons.
   LINEAR FOOT. The length in feet of cable, wire, fiber, conduit or other linear facilities. Facilities that are physically connected, wrapped or lashed as a single cable, conduit or bundle of cables or conduit shall be considered a single facility for purposes of calculating each linear foot, provided that each conduit or bundle of conduit, up to and including four inches in exterior diameter, shall constitute a separate facility for calculating linear feet. Conduit having fiber optic or other cable or wire installed within it shall not be considered separate facilities, but shall be considered part of the single "conduit" or bundle for purposes of calculating linear feet. Each utility shall be subject to a separate linear foot charge for facilities used by the utility and subject to this code.
   MAJOR INTERSECTION. The intersection of two or more major arterial highways.
   OCCUPANCY. The presence of facilities on, over or under right-of-way.
   PARALLEL FACILITY. A facility that is generally parallel or longitudinal to the centerline of a right-of-way.
   PARKWAY. Any portion of the right-of-way not improved by street or sidewalk.
   PAVEMENT CUT. The removal of an area of pavement for access to facility or for the construction of a facility.
   PERMITTEE. That entity to which a permit has been issued pursuant to §§ 54.04 and 54.05 of this chapter.
   PERSON. Any corporation, partnership, proprietorship, individual, organization, governmental entity, or any natural person, including, but not limited to, utilities and licensees as referenced herein.
   PETROLEUM PRODUCTS PIPELINES. Pipelines carrying crude or refined liquid petroleum products, including, but not limited to, gasoline, distillates, propane, butane or coal slurry.
   PRACTICABLE. That which is performable, feasible or possible, rather than that which is simply convenient.
   PRESSURE. The internal force acting radially against the walls of a carrier pipe, expressed in pounds per square inch gauge (psig).
   PROMPT. That which is done within a period of time specified by the city. If no time period is specified, the period shall be 30 days.
   PUBLIC ENTITY. A legal entity that constitutes or is part of the government, whether at local, state or federal level.
   RESTORATION. The repair of a right-of-way, highway, roadway or other area disrupted by the construction of a facility.
   RIGHT-OF-WAY, RIGHTS-OF-WAY or ROW. The area on, under, along, across or above any street, alley, roadway, other land or waterway, dedicated or commonly used for pedestrian or vehicular traffic or other similar purposes, in which the city has the right and authority to authorize, regulate or permit the location of facilities other than those of the city, and including such adjacent areas within such public ways within city control, except as may be limited herein or by law. RIGHT-OF-WAY, RIGHTS-OF-WAY or ROW 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. The part of the highway that includes the pavement and shoulders.
   SALE OF TELECOMMUNICATIONS AT RETAIL. 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 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. The amount of security required pursuant to § 54.10 of this chapter.
   SHOULDER. A width of roadway, adjacent to the pavement, providing lateral support to the pavement edge, and an area for emergency vehicular stops and storage of snow removed from the pavement.
   SMALL WIRELESS FACILITY. A wireless communications facility that meets both of the following qualifications:
      (1)   Each antenna is located inside an enclosure of no more than six 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 cubic feet; and
      (2)   All other wireless equipment attached to a utility pole or support structure, associated with the small wireless facility, is cumulatively no more than 25 cubic feet in volume, calculated to the extent permitted by law.
   SOUND ENGINEERING JUDGMENT. A decision(s) consistent with generally accepted engineering principles, practices and experience.
   SUPPORT STRUCTURE. A free-standing structure such as a billboard or other structure designed to, or capable of, supporting wireless communications facilities. A SUPPORT STRUCTURE shall not include a utility pole.
   TELECOMMUNICATIONS.
      (1)   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 non-traffic-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 or more specified locations to one or more other specified locations.
      (2)   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.
      (3)   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.
      (4)   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. §§ 521 et seq.), 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 C.F.R. §§ 76.1500 et seq.), as now or hereafter amended.
   TELECOMMUNICATIONS PROVIDER. 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. A relatively narrow open excavation for the installation of an underground facility.
   UTILITY. A person owning, controlling, leasing, maintaining, using, installing, or operating any facility as defined in this chapter, and including all persons subject to the requirement of a franchise or license. A UTILITY may be made up of multiple persons. As defined in this chapter, a UTILITY does not require that the person be certified as a "public utility" by the ICC pursuant to the Public Utilities Act (ILCS Ch. 220, Act 5, §§ 1-101 et seq.). For purposes of this chapter, a UTILITY does not include the city except as may otherwise be required by law.
   UTILITY POLE. A pole or similar structure that is used in whole or in part by a utility or for electric distribution, lighting, or traffic control. UTILITY POLE shall not include a support structure.
   VENT. A pipe to allow the dissipation into the atmosphere of gases or vapors from an underground casing.
   VIDEO SERVICE. That term as defined in § 21-201(v) of the State Cable and Video Competition Law of 2007, ILCS Ch. 220, Act 5, § 21-201(v).
   WATER LINES. Pipelines carrying raw or potable water.
   WET BORING. Boring using water under pressure at the cutting auger to soften the earth and to provide a sluice for the excavated material.
(Ord. 2022-61, passed 11-7-2022)
§ 54.03 ANNUAL REGISTRATION REQUIRED; APPLICATION FOR FRANCHISE REQUIRED.
   (A)   Annual registration required. Every utility that occupies a right-of-way within the city shall register on January 1 of each year with the City Engineer, providing the utility's name, address and regular business telephone and telecopy numbers, the name of one or more contact persons who can act on behalf of the utility in connection with emergencies involving the utility's facilities in the right-of-way, and a 24-hour telephone number for each such person, and evidence of insurance, as required in § 54.08 of this chapter, in the form of a certificate of insurance.
   (B)   Franchise or license application required. An application for a franchise or license, on city forms, shall be presented to the Director of Public Works in writing, and shall include all such information as is required by this section. The utility shall be responsible for accurately maintaining the information in the application during the term of any franchise, and shall be responsible for all costs incurred by the city due to the failure to provide or maintain as accurate any application information required herein. Wherever any application or code requirement is claimed to be preempted by state or federal law, as applied to the circumstances of the applicant and proposed use in the city, such preemption shall be specifically stated, citing the precise provision of law and the specific requirement claimed to be preempted, along with documentation establishing applicability to the circumstances or applicant at issue.
   (C)   Application deposit fee. Except where inconsistent with applicable law, a $2,500 application deposit fee for review, documentation and approval of such franchise is required to be submitted with the application form to recover any actual costs anticipated and incurred by the city in reviewing, documenting or negotiating such franchise, provided that no costs shall be included if such inclusion is prohibited by applicable law as to that person. If the actual costs are thereafter determined to be less than the application deposit fee, such amount shall be returned to the person, after written request therefrom. If the actual costs exceed the application deposit fee, such person shall pay such additional amount prior to issuance of any final city approval after written notice from the city.
   (D)   Application form. An applicant shall submit a completed application for a franchise on such form provided by the city, which shall include information necessary to determine compliance with this chapter, including, but not limited to:
      (1)   Identity and legal status of the applicant;
      (2)   Name, address, telephone number and email address of each officer, agent or employee responsible for the accuracy of the application. Each officer, agent or employee shall be familiar with the local facilities of the applicant, shall be the person(s) to whom notices shall be sent, and shall be responsible for facilitating all necessary communications, including, but not limited to, certification to the city of any material changes to the information provided in such completed application during the term of any franchise;
      (3)   Name, address, telephone number and email address of the local representative of the applicant, who shall be available at all times to act on behalf of the applicant in the event of an emergency;
      (4)   Proof of any necessary permit, license, certification, grant, registration, franchise, agreement or any other authorization required by any appropriate governmental entity, including, but not limited to, the FCC;
      (5)   Description of the applicant's intended use of the rights-of-way, including such information as to proposed services so as to determine the applicable, federal, state and local regulatory provisions as may apply to such person;
      (6)   A list of authorized agents, contractors and subcontractors eligible to obtain permits on behalf of the applicant. The list may be updated to add such person at the time of permit application if the updated information on the application is submitted by an authorized representative of the applicant;
      (7)   Evidence of insurance, as required in § 54.08 of this chapter, in the form of a certificate of insurance information sufficient to determine the amount of net assets of the applicant;
      (8)   Information sufficient to determine whether the applicant is subject under applicable law to franchising, service regulation, payment of compensation for the use of the rights-of-way, taxation or other requirements of the city;
      (9)   Any request to provide telecommunications shall also include all requirements set forth in the Telephone Company Act (ILCS Ch. 220, Act 65, §§ 0.01 et seq.) or other applicable law; and
      (10)   Such other information as may be reasonably required by the Director of Public Works to determine requirements and compliance with applicable regulations.
   (E)   Standard for approval or renewal of franchises. In reviewing an application for a new or renewal of a franchise, the city may consider prior conduct of the person in performance of its obligations or compliance with the city's ordinances in the past, or the existence of any outstanding violations or deficiencies. The city may deny or condition any franchise where the proposed use would interfere with the public use of the rights-of-way or otherwise conflict with the legitimate public interests of the city or as otherwise provided by law. Applications for franchises may be approved, denied or approved with conditions consistent with requirements of applicable law or other applicable requirements as maybe necessary to fulfill the requirements and objectives of this chapter.
   (F)   Approval process. After submission by the applicant of a duly executed and completed application, including applicable application deposit fee, and an executed franchise as may be provided by the Director of Public Works or as modified by the Director of Public Works in review of the specific circumstances of the application, all in conformity with the requirements of this chapter and all applicable laws, the Director of Public Works shall submit the franchise agreement to the City Council for approval. Upon determining compliance with this chapter, the City Council may authorize execution of the franchise (or a modified agreement otherwise acceptable to the city consistent with the purposes of this chapter), and such executed franchise shall constitute consent to use the rights-of-way; provided that nothing herein shall preclude the rejection or modification of any executed franchise submitted to the city, to the extent applicable law does not prohibit such rejection or modification, including, where necessary to reasonably, and in a uniform or nondiscriminatory manner, reflect the distinct engineering, construction, operation, maintenance, public work or safety requirements applicable to the person.
   (G)   Administrative approval process; form franchises.
      (1)   Various communication related users of the ROW may be subject to various and differing state and federal approval requirements, including timing requirements for expedited or shorter approval times. Accordingly, the City Administrator shall have the authority pursuant to this division (G) to execute on behalf of the city such franchise agreements as provided below that are identical to, or substantially the same as, the city's "form" franchises currently on file with the City Clerk, and incorporated herein, where such franchise terms fully comply with applicable law under the application and applicant at issue. Such administrative City Administrator approval be authorized only for the following circumstance which may require more expedited approvals:
         (a)   A franchise authorizing use of the ROW for facilities authorized solely to provide "telecommunications at retail" as are subject to specific state law definitions and requirements, specifically being limited to such services as "sale of telecommunications at retail" as defined in ILCS Ch. 35, Act 635, § 10 and "telecommunications" "sale at retail" as defined in ILCS Ch. 35, Act 636, § 5-7 as maybe applicable; and
         (b)   A franchise authorizing use of the ROW for facilities authorized to provide communications services that may include both such "telecommunications at retail" (being limited to such services as "sale of telecommunications at retail" as defined in ILCS Ch. 35, Act 635, § 10 and "telecommunications" "sale at retail" as defined in ILCS Ch. 35, Act 636, § 5-7 as maybe applicable), and other services or facilities (including but not limited to wholesale, dark fiber or other communications services that are not "telecommunications at retail" and are subject to the city's linear foot fee as provided for in § 54.23, except where may be otherwise provided by applicable law).
      (2)   To the extent not prohibited by applicable law, the City Administrator may execute these form franchise agreements with applicants without any additional approval by the City Council upon determination by the City Administrator that the applicant satisfies the city's requirements and policies for issuance of a franchise pursuant to this code. Failure to include a specific form franchise shall in no way preclude an applicant seeking to utilize the city's rights-of-way for any authorized service from applying for such a franchise and receiving authorization as provided for by the City Council in this division (G). The administrative approval process in this division (G) shall not be available for any franchise or license not provided for herein or any franchise or license for which the City Administrator determines there are material changes to the form, or where full compliance with the code has not been demonstrated. Upon determination by the City Administrator that a form franchise agreement (or such form with any minor or ministerial changes or clarifications from the application or review that are consistent with the purposes of the policies and code of the city) may be properly issued based on the application submitted, the City Administrator may so indicate to the applicant and request an executed copy be returned to the city for execution by the City Administrator within a reasonable time period stated. If actual or potential regulatory or other deadlines warrant more immediate action by the city, the City Administrator may alternatively send to the applicant the completed franchise agreement already executed by the City Administrator, which franchise agreement shall be valid only if thereafter executed by applicant, dated and returned to the city all within seven calendar days of the date of execution by the City Administrator. For purposes of this division (G), RETURNED TO THE CITY shall mean a complying document delivered to City Hall and date and time stamped by the counter clerk of such receipt. No franchise or license shall be valid to authorize use of the ROW if not executed by both parties in conformance with all applicable requirements of this code. Such executed transmittal to the applicant shall be deemed completion of the city's obligation under any applicable time requirements for a final decision.
(Ord. 2022-61, passed 11-7-2022)
§ 54.04 PERMIT REQUIRED; APPLICATIONS AND FEES.
   (A)   Permit required.
      (1)   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:
         (a)   Changes the location of the facility;
         (b)   Adds a new facility;
         (c)   Disrupts the right-of-way (as defined in this chapter); or
         (d)   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 City Engineer and obtaining a permit from the city therefore, except as otherwise provided in this chapter.
      (2)   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.
   (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.
   (C)   Minimum general application requirements. The application shall be made by the utility or its duly authorized representative and shall contain, at a minimum, the following:
      (1)   The utility's name and address and telephone and telecopy numbers (including a 24-hour emergency contact telephone number);
      (2)   The applicant's name and address, if different than the utility, its telephone, telecopy numbers, e-mail address and its interest in the work;
      (3)   The names, addresses and telephone and telecopy numbers and e-mail 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 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 Illinois Commerce Commission (ICC) regulations for emergency contingency plans constitutes compliance with this section unless the city finds that additional information or assurances are needed.
      (6)   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;
      (7)   Evidence of insurance as required in § 54.08 of this chapter;
      (8)   Evidence of posting of the security fund as required in § 54.10 of this chapter;
      (9)   Any request for a variance from one or more provisions of this chapter (see § 54.21 of this chapter); and
      (10)   Such additional information as may be reasonably required by the city, to include, but not necessarily limited to, digital submission of data in a format acceptable by the city for inclusion in the city's geographical information system (GIS) such as spatially referenced digitized drawings.
   (D)   Supplemental application requirements for specific types of utilities. In addition to the requirements of division (C) above, the permit application shall include the following items, as applicable to the specific utility that is the subject of the permit application:
      (1)   In the case of the installation of a new electric power, communications, telecommunications, 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 Illinois Commerce Commission (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 State 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 State Environmental Protection Agency, Division of Water Pollution Control, 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)   Small wireless facilities. To the extent permitted by applicable law, the following additional application for small wireless facilities shall be as follows:
         (a)   Additional information required. The following information shall also be required on a permit for any small wireless facility:
            1.   A site-specific structural integrity report for each utility pole and support structures, and for city utility poles and city-controlled support structures, a makeready analysis prepared by a structural engineer, as that term is defined in Section 4 of the Structural Engineering Practice Act of 1989;
            2.   Specifications and drawings prepared by a structural engineer for each small wireless facility;
            3.   Location of each proposed small wireless facility would be installed with photographs of the immediate surrounding areas depicting where the small wireless facility would be mounted on its associated structure;
            4.   The equipment types and model numbers for the antennas and all other equipment associated with the small wireless facility;
            5.   A proposed schedule for the installation and completion for each small wireless facility;
            6.   Certification that the collocation proposed complies with the city's requirements for collocation, to the extent permitted by applicable law, including the existence of an enforceable franchise agreement between the city and the utility, undergrounding requirements, design requirements, and all other requirements of this chapter, including § 54.15, to the best of the applicant's knowledge; and
            7.   All application fees to the extent permitted by law. All application fees to the city shall be non-refundable. If such application requires replacement utility pole(s), such cost of the replacement utility pole(s) will also be included in 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 utility in writing to the city within 30 days after the change necessitating the amendment.
   (F)   Application fees. Unless otherwise provided by franchise, license or similar agreement, all applications for permits pursuant to this chapter shall be accompanied by a fee in the amount of $100 plus $0.10 per linear foot of utility line construction, except for small wireless facilities, which shall be the maximum amounts established by applicable law, including, but not limited to, ILCS Ch. 50, Act 840, §§ 1 et seq. 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 (ILCS Ch. 35, Act 645, §§ 5-1 et seq.).
(Ord. 2022-61, passed 11-7-2022)
§ 54.05 ACTION ON PERMIT APPLICATIONS.
   (A)   City review of permit applications. Completed permit applications, containing all required documentation, shall be examined by the City Engineer within a reasonable time after filing. If the application does not conform to the requirements of applicable ordinances, codes, laws, rules and regulations, the City Engineer shall reject such application in writing, stating the reasons therefor. If the City Engineer is satisfied that the proposed work conforms to the requirements of this chapter and applicable ordinances, codes, laws, rules and regulations, the City Engineer shall issue a permit therefor as soon as practicable. In all instances, it shall be the duty of the applicant to demonstrate, to the satisfaction of the City Engineer, that the construction proposed under the application shall be in full compliance with the requirements of this chapter.
   (B)   Additional city review of applications of telecommunications retailers.
      (1)   Pursuant to § 4 of the Telephone Company Act, ILCS Ch. 220, Act 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 days prior to the commencement of work requiring no excavation and not less than 30 days prior to the commencement of work requiring excavation. The City Engineer 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 City Engineer fails to provide such specification of location to the telecommunications retailer within either (a) ten 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) 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 § 54.04 of this chapter 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 division (A) above.
   (C)   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 (ILCS Ch. 220, Act 5, §§ 21-100 et seq.) shall be deemed granted 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. 2022-61, passed 11-7-2022)
§ 54.06 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 under this chapter shall be valid for a period longer than six months unless construction is actually begun within that period and is thereafter diligently pursued to completion.
   (C)   Pre-construction 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 pre-construction meeting. The pre-construction 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 utilities, 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. 2022-61, passed 11-7-2022)
§ 54.07 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 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 a variance in accordance with § 54.21 of this chapter. 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. 2022-61, passed 11-7-2022)
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