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(A) Users or occupants in the PROW subject to a franchise. In order to use, place or maintain facilities in the PROW, all persons that operate utilities, quasi-utilities, telecommunications facilities or provide services using the PROW that the city may legally franchise or license, shall apply for a franchise or license from the city. Services for which a franchise or license shall be required include, but are not necessarily limited to, telephone, telecommunications irrespective of the medium or technology used, electrical power, water distribution, wastewater collection, sewage collection, gas distribution or transportation, trash and solid waste collection and/or disposal, off-street parking facilities, and storm water management and drainage facilities.
(B) Performance guarantee. All new users after the effective date of this chapter shall provide the city with a performance bond or other performance guarantee satisfactory to the Department, the City Attorney and the City Risk Manager.
(C) Permits. All users, licensees and franchisees shall obtain all required permits prior to performing work in the PROW.
(D) Franchises or licenses. After the effective date of this chapter, if allowed or required by city or state law or regulation, a proposed new user applying after the effective date of this chapter shall apply for and be issued a franchise or license, as appropriate, prior to the placement of any equipment or structure in the PROW. The Director of Public Works, or the Director’s designee, shall determine, in his or her discretion, the necessity of a franchise or license and the type of franchise or license, taking into consideration the length of time the facilities will or are expected to be in the PROW, the potential impact on the PROW and the city’s prior practice. Facilities for which a franchise or license shall be required include monument signs, monument mailboxes, coaxial and fiber optic cable, non-franchised telecommunications equipment irrespective of the medium or technology used, irrigation systems, specialty street signs, canopies, specialty pavement structures and other semi- permanent or permanent structures or features in the PROW.
(1) Monument signs and mailboxes. A license shall be required for any monument sign or private mailbox.
(2) Telecommunications facilities and service providers. After the effective date of this chapter, new telecommunications users must obtain a PROW use and occupancy agreement, franchise or license before constructing or adding equipment that is subject to the Telecommunications Act of 1996 (47 U.S.C. as amended), as well as providers of retail or wholesale telecommunications services using third party-owned facilities located in the PROW. The Department shall be responsible for granting a franchise or license for users proposing to construct and maintain telecommunications facilities within the PROW.
(3) License or franchise for other facilities. The Public Works Department may grant a license or franchise to construct and maintain other facilities not included in divisions (D)(1) and (D)(2) above.
(E) Contents of franchises and licenses. Licenses and franchises shall, at a minimum, contain the following provisions:
(1) The identity and legal status of the user in the state;
(2) The name and contact information of the officer, agent or employee of the user responsible for communications with the city, which shall be updated as the information changes;
(3) A general description of existing and proposed facilities and the specific locations and portions of the PROW to be utilized for such facilities, with additional specifics as may be required by the Department;
(4) A description of the facility(s) proposed to be located in the PROW, including manufacturer’s cut sheets for any active electronic device(s) and a to-scale photo of the location prior to construction and a photo simulation of the location showing the facility after construction from four directions, each with 90 degrees azimuth separations;
(5) A description of the services to be offered within the city, if any, and identification on a street map of the city of the specific parts of the city or properties within the city where such services will be available, which description and map shall be updated when the service area(s) change;
(6) A description of the services or facilities to be offered to the city itself, or to other public or governmental institutions within the city, if any such services are to be offered;
(7) Acknowledgment that the license or franchise does not limit the city’s police power and that the city may enact additional ordinances, standards and requirements applicable to users;
(8) Acknowledgment that the user may be required, at user’s sole cost and expense, to obtain certain permits and approvals from the city in addition to the license or franchise;
(9) Acknowledgment that the user is responsible for all damage caused by its employees, agents and contractors;
(10) A commitment to pay for all damages that arise in connection with the user’s acts or omissions in the PROW;
(11) A commitment to defend and indemnify the city for all claims and liabilities that arise in connection with the user’s acts or inappropriate or impermissible lack of action in the PROW;
(12) A description, including the amount, of bonds or performance guarantees and insurance that are required;
(13) The proposed length of term of the franchise or license;
(14) An acknowledgment that transfer or assignment of an authorization, license or franchise requires approval of the City Council, such approval not to be unreasonably withheld;
(15) The amount of compensation paid to the city for the use of the PROW and a schedule of payment of such; and
(16) The total fully-allocated capital cost of the project
(F) Assignment. Unless an authorization, franchise or license prohibits assignment to a different party, notice of the assignment shall be given to the Department not fewer than 30 days prior to the effective date of the assignment, with ownership and contact information updated to reflect the assignee’s ownership and contact information.
(G) Information available to the city.
(1) All users, licensees and franchisees shall provide the city within ten calendar days of a request:
(a) All books, data/ records, maps, plans, GIS data files, billings, payments and submissions to the state relating to the user’s facilities and their function, location, income, history, maintenance and repair; and
(b) Filings with the State Public Service Commission and the Federal Communications Commission.
(2) The documents shall be provided within a reasonable period of time after the filing date, such date not to exceed 30 days. The city may examine all such information at no cost. If information is copied for the city, the costs of copying, if any, shall be limited to the actual charges of a commercial copying facility selected by the city.
(H) Declaration of forfeiture. The city may declare the forfeiture of an authorization, permit, license or franchise, and all of the rights arising thereunder, in the event the holder continues not to comply with any material provision(s) of its authorization, permit, license or franchise, or is in substantial violation of this chapter or other standards adopted by the city after due and proper notice and reasonable opportunity to cure or remedy. The city shall give the holder at least 30 calendar days’ written notice of its intent to declare a forfeiture, which notice shall include a description of the noncompliant matter and the specific citation(s) at issue. The user shall then have 30 days from receipt of the city’s notice to cure the noncompliance or to make verifiable substantial progress toward such cure, as determined in the reasonable discretion of the city.
(Ord. 2017-O-55, passed 9-12-2017)
(A) Application required. An application must be filed with the Department for any work other than normal maintenance on any pole or other support structure, including modification, change or replacement of equipment that would be different in size, weight or appearance than the existing equipment.
(B) Application to modify or replace. An application to modify or replace a facility shall contain a copy of the last certificate of completion issued for that facility.
(C) False or misleading statements. During the application process, or in an application, an applicant may not make statement(s) verbally or in writing that is intended to be relied upon by the city and is fraudulent, misleading or that causes or are intended to cause a reasonable probability of confusion or misunderstanding as to the legal rights, obligations or options of the city, nor fail to inform the city of a relevant fact material to the application that is known or should be known by the applicant, the omission of which is deceptive or misleading.
(D) Urgency. An applicant shall not misrepresent the urgency of the work represented in an application, including any asserted deadline by which action by the city on the application is needed.
(E) Processing urgent requests. The city shall attempt to process urgent requests sooner than the required maximum time allowed by state or federal law. Notwithstanding the preceding, due to the effects of having to re-allocate human resources to accommodate such urgent requests, an applicant shall not misrepresent the urgency of the situation to have a facility(s) permitted or authorized. It shall be a condition of all authorizations for an application requesting urgent treatment that the work shall be completed within 90 calendar days of the issuance of the authorization or pay a penalty as listed in § 157.99(D) until the final inspection is requested, except for force majeure situations and situations not reasonably within the control of the applicant.
(F) Warehousing of authorizations and permit(s) not allowed. Warehousing of an authorization shall never be permitted. To prevent warehousing of authorizations and/or permit(s) for new structures in the severely limited and scarce space of the PROW and on existing poles, thereby preventing another person or entity from using a given location(s) and space because the proposed structure at the location was not built expeditiously, an application shall contain a proposed date for the completion of the construction or modification of any structure, including the placement of equipment attached to or associated with the structure. The completion date shall not be more than 180 days after the issuance of a building permit to occupy a given location and space.
(G) Site visit. Prior to the submittal of an application and following payment of any required fee(s) or anticipatory deposits, a site visit to each facility proposed to be modified or to the proposed location of a new facility, shall be conducted to determine:
(1) The physical condition of the facility or proposed location; and
(2) To identify issues of concern, noncompliance with applicable laws, rules and regulations, including, but not limited to, any safety-related issues or concerns and other matters contained in this chapter.
(H) Number of facilities applied for by a given person or entity. Due to limited staff resources, to prevent forced de facto pro-forma or rubber stamping approval of an application without meaningful review for compliance with applicable federal, state and local law and regulations, and to prevent inadvertent noncompliance by the city with any federal or state-imposed time requirements for reviewing an application, no person or entity may make application for more than ten facilities or locations under this chapter within any 30-consecutive calendar day period.
(I) Facilitating applications and mitigating applicant costs.
(1) To facilitate the preparation and submittal of an application in compliance with this chapter, and thereby expedite the review and permitting of an application, a pre-application meeting shall be held, the city’s costs for such being paid for by the applicant prior to the meeting.
(2) To facilitate the application process and to mitigate application-related costs for applicants, depending upon the scope of the proposed work and its impact both visual and physical as determined by the Department, applications not involving new support structures may be submitted in groups of up to three facilities in a single consolidated application and be subject to only one application fee. Notwithstanding this, no application for a new or replacement pole or other support structure shall contain more than a single location or facility.
(J) No unidentified facilities. No authorization shall be granted for new support structures, new equipment or a new facility that is not expressly and individually identified at the time the application is filed, including the specific location and design characteristics of each facility.
(K) No taxpayer subsidization. Historic, current and anticipated subscriber rates for services provided using the PROW are assumed to reflect permitting costs, unless verifiable clear and convincing evidence to the contrary is provided. Therefore, city funds shall not directly or indirectly be used subsidize an applicant’s reasonable application-related review and permitting costs.
(L) Application fee. To prevent taxpayer subsidization of application-related costs, an application fee shall be required of all applications involving:
(1) A new or replacement pole(s) or support structure(s);
(2) Any modification of a facility; or
(3) Any change of existing equipment attached to an existing pole(s) or support structure(s) that is visually discernable, changes the appearance of the facility, changes the structural loading on the pole or support structure, or involves verification of compliance with an aspect of the National Electrical Safety Code (NESC), the National Electrical Code (NEC) or TIA ANSI 222 not previously applicable to that facility. The amount of the appropriate application fee shall be as set forth in the city’s Schedule of Fees in § 21.06.
(M) Payment for legal and/or expert assistance. To prevent taxpayer subsidization of application-related costs as required by this chapter and determined to be appropriate and necessary by the Department, applicants may be required to place on deposit with the city an amount estimated to be sufficient to pay for reasonable legal and/or other expert assistance costs of the city attributable to the application. The minimum amount(s) required shall be as set forth in the city’s Schedule of Fees in § 21.06.
(N) Deposit required prior to work on application. An applicant must deposit the estimated cost of the city’s legal or other expert assistance with the city prior to any work being done related to an application or an anticipated or intended application. Notwithstanding the preceding, inquiries totaling up to one hour of time may be made prior to the required deposit being in place at no cost to the applicant.
(O) Return of unexpended amount of deposit. Any unexpended amount submitted in compliance with the preceding division (N) remaining after the issuance of a certificate of completion shall be promptly returned to the applicant upon written request.
(P) Street opening, street cutting, curb and sidewalk cutting fee. Any person or entity proposing to cut or break the integrity of the surface of a paved street, sidewalk, pedestrian or bicycle way, or who proposes to cut any curb shall:
(1) Pay to the city a fee(s) as set forth in the city’s Schedule of Fees in § 21.06 prior to the issuance of any permit(s); and
(2) Obtain a permit for the proposed type of work.
(Ord. 2017-O-55, passed 9-12-2017) Penalty, see § 155.999
(A) New and replacement installations of a given type shall be consistent throughout the city limits, and any extraterritorial jurisdiction (ETJ) where this chapter is of effect.
(B) All new or replacement poles shall be of non-wooden, non-conductive and non-corrodible materials.
(C) Antennas attached to new poles or structures in the PROW shall be of a type that disguises the fact that they are antennas, unless for reasons proven by verifiable clear and convincing evidence that to do so is technologically impracticable, in which case a best case type of camouflaging shall be used.
(D) Where not technologically or commercially impracticable, equipment attached to poles in the PROW shall utilize a “concealed” design, including all cabling and any antennas being placed inside the pole or support structure.
(E) So as to avoid an applicant having to bear the cost of doing an environmental assessment and report as otherwise required by FCC Rule 14-153, any ground-mounted equipment enclosures shall be no larger than is technologically necessary, but in no case larger than 17 cubic feet in volume for all users of the equipment shelter cumulatively.
(F) To protect the nature and character of the area impacted area a facility shall be:
(1) Of a color determined by the Department to be harmonious with the particular area;
(2) Located as near the pole as applicable safety codes allow;
(3) Screened with evergreen shrubbery of sufficient size to hide the equipment shelter; and
(4) If the PROW is landscaped with decorative vegetation, of the same species, color, size and shape as is used to landscape the PROW in the neighborhood of the pole or enclosure.
(G) Pole-mounted cabinets shall be as small as possible, but no larger than is technologically necessary and reasonably possible, and shall be shielded from view in both directions parallel to the PROW by decorative, noncommercial banners or under a pole-mounted shroud.
(H) Unless proven to be physically unfeasible or commercially impracticable by verifiable clear and convincing evidence, any person proposing a new attachment to an existing wooden primary electrical distribution pole, wooden secondary electrical distribution pole or wooden streetlight in the PROW shall, instead, replace the existing pole with a pole as described in this division (H).
(I) All new poles shall meet or exceed current NESC standards and wind and ice loading requirements of the latest version of ANSI 222 Version G.
(J) Any new poles installed shall be “green”, not made of wood and not leach any volatile organic compounds or toxic materials into the ground.
(K) To avoid unsightly rust and corrosion, any new pole installed shall not be made of metal, concrete or cement.
(Ord. 2017-O-55, passed 9-12-2017)
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