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(A) Notice. Within 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.
(B) Removal of unauthorized facilities. Within 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. Upon abandonment of a facility within the rights-of-way of the city, the utility shall notify the city within 90 days. Following receipt of such notice the city may direct the utility to remove all or any portion of the facility if the City Engineer determines that such removal will be in the best interest of the public health, safety and welfare. In the event that the city does not direct the utility that abandoned the facility to remove it, by giving notice of abandonment to the city, the abandoning utility shall be deemed to consent to the alteration or removal of all or any portion of the facility by another utility or person.
(Ord. 2022-61, passed 11-7-2022)
The utility shall remove all excess material and restore all turf and terrain and other property within ten days after any portion of the rights-of-way are 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 City Engineer. Such clean-up 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 City Engineer for good cause shown.
(Ord. 2022-61, passed 11-7-2022)
(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 City Engineer 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 48 hours after an emergency repair.
(Ord. 2022-61, passed 11-7-2022)
(A) Request for variance. A utility requesting a variance from one or more of the provisions of this chapter must do so in writing to the City Engineer 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 City Engineer 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 City Engineer may authorize a variance only if the utility requesting the variance has demonstrated that:
(1) One 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 City Engineer 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 City Engineer under the provisions of this chapter shall have the right to appeal to the City Council, or such other committee, board or commission as it may designate. The application for appeal shall be submitted in writing to the City Clerk within 30 days after the date of such order, requirement, decision or determination. The City Council shall commence its consideration of the appeal at the Council's next regularly scheduled meeting occurring at least seven days after the filing of the appeal. The City Council shall timely decide the appeal.
(Ord. 2022-61, passed 11-7-2022)
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. 2022-61, passed 11-7-2022)
(A) Use fees.
(1) Unless otherwise lawfully established by the City Council, or as required by applicable law, utilities shall pay to the city as monthly compensation for the use of the rights-of-way, other than for incidental uses, a monthly use fee of:
(a) One thousand dollars per month for the first mile of linear facilities, or part thereof, plus up to $0.10 per linear foot per month thereafter; and
(b) Two hundred dollars per month for each antenna in the rights-of-way, or such other amounts as established by the City Council.
(2) Linear foot fees shall be due and payable on a monthly basis within 30 calendar days of the close of each month for which the payment applies. If any use fee, or any portion thereof, is not postmarked or delivered on or before the due date, interest thereon shall accrue from the due date until received, at the rate of 1.5% per month, unless such other maximum rate is established by law.
(3) Credit. The utility shall be entitled to a credit to the linear foot fee owed pursuant to division (A)(1)(a) above in the final amount of any payments owed under the Simplified Municipal Telecommunications Tax (ILCS Ch. 35, Act 636, §§ 5-1 et seq., "SMTT") and paid to the city for the same period; provided such amount is specifically shown and documented in the applicable fee statement accompanying the linear foot payment and such credit shall not exceed the amount of linear foot fee owed for that period.
(4) The use fee required in this section shall be paid by the utility as required herein without offset, credit, refund, or deduction except for such credit as is expressly provided for above for SMTT paid.
(5) Limitation. Nothing herein shall require payment of use fees described in this division (A) to the extent such use fees are prohibited by applicable law, including for placement of small wireless facilities as defined in ILCS Ch. 50, Act 840, § 10 to the extent such use fees would be prohibited or otherwise limited by federal or state law.
(B) Bundled services. The utility expressly acknowledges and agrees that, to the extent it markets bundled services, including a combination of goods or services that maybe subject to this chapter, it will fairly reflect to the city an appropriate and reasonable division of services among the various services offered, based on the actual value of each separate service. Whether or not the utility separates services on a subscriber's bill, it will provide to the city notice of any such allocation sufficient for city verification. Should the utility engage in billing or payment practices that, in the reasonable determination of the city, do not fairly reflect a fair and appropriate allocation, the city may nullify such allocation and require payment applicable to the full receipts.
(C) Fee statement. Each use fee payment shall be accompanied by a statement showing the manner in which the use fee was calculated, and in such format as may be required by the city. If any fee statement is determined to understate the fee owed, then such additional amount owed shall be made with a corrected statement, including interest on the amount as provided herein. Within 90 calendar days following the end of the calendar year, each licensee shall submit a statement, certified as true, setting forth its gross revenues, the amount of linear foot and antennae within the facilities, and describing what revenues or receipts (including each type of services were included and excluded in the fee calculations for the calendar year, and describing any adjustments, additional payments or credits) arising from information not known and reflected as of the payment date. Any required additional payment shall be included with the report, any credit shall be deducted from the following annual payment.
(D) No accord and satisfaction. No acceptance by the city of any use fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any use fee payment be construed as a release of any claim of the city.
(E) Maintain records. Utilities shall at all times maintain complete and accurate books of account, and records of the business, ownership, and operations of the utility with respect to the facilities, in a manner that allows the city to determine whether the utility has properly calculated its use fee in compliance with this chapter. Should the city reasonably determine that the records are not being maintained in such manner, the utility shall correct the manner in which the books and/or records are maintained so that the utility comes into compliance with this section. All financial books and records maintained in accordance with FCC regulations and the regulations of any governmental entity regulating utilities in Illinois, and generally accepted accounting principles, shall be deemed to be acceptable under this section. Such books and records shall be maintained for a period of at least five years, but nothing herein shall limit the years or scope of audit if reasonably related to determining or enforcing compliance.
(F) Right of inspection. The city or its designated representatives shall have the right to inspect, examine or audit, during normal business hours and upon seven calendar-day notice, all documents, records or other information that pertains to the facilities within the ROW and/or the utility's user fee obligations. In addition to access to the records of utility for audits, upon request, the utility shall provide reasonable access to records necessary to verify compliance with the terms of this chapter.
(Ord. 2022-61, passed 11-7-2022)
Any person who violates, disobeys, omits, neglects or refuses to comply with any of the provisions of this chapter shall be subject to a fine in accordance with the penalty provisions of this code. There maybe 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. 2022-61, passed 11-7-2022)