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HomeMy WebLinkAboutOrdinances - MC-07-927 - 08/27/2007 - AMEND MC CHAPTER 21 UTILITIES IN ROWDraft 812212007 ORDINANCE NO. MC-07-927 An Ordinance Amending Chapter 21, Streets and Sidewalks, of the McHenry Municipal Code to Add Article V, Utilities in Right -of -Way, and Repeal Section 21.12, Permission for Poles and Wires BE IT ORDAINED by the Mayor and Aldermen of the CITY OF McHENRY, McHenry County, Illinois, as follows: SECTION 1: That Section 21.12, Permission for Poles and Wires, of the Municipal Code, City of McHenry, is hereby repealed and that section number reserved. SECTION 2: That Chapter 21, Streets and Sidewalks, of the Municipal Code, City of McHenry, shall be amended to add Article V, Utilities in Right -of -Way, which shall read as follows: ARTICLE V. UTILITIES IN RIGHT-OF-WAY See.21-77. Definitions. For purposes of this Article: "City initiated improvements" or "City operations" shall include but not be limited to, anything required by the City in annexation, final plat requirements or other agreements with third parties including those intended to benefit other property within the City, City road construction, expansion or relocation projects, public works projects or other City operations, maintenance and planning projects. "Public right-of-way" shall include but not be limited to, any street, alley, parkway, other land or waterway, dedicated or commonly used for utility or cable purposes, including utility or cable easements. "Utility" shall include, in addition to all other commonly and legally accepted definitions of the term, cable providers and facilities, and video service providers. Sec.21-78. Permits. (a) Permit Required: No person shall erect or maintain any poles or wires over any street, alley or other public way or public right-of-way without a permit from the director of public works. A permit is also required for the installation, maintenance, or replacement of any aboveground or underground facilities, including but not limited to, utility boxes, wires, pipes, cables, conduits and ducts, within any street, alley or other public way. (b) Effect of Permit: A permit from the City authorizes the permit holder to undertake only certain activities in accordance with this Article, and does not create a property right or Utilities in Right of Way, Page 1 Draft 812212007 grant authority to the permit holder to impinge upon the right of others who may have an interest in the public right-of-way. (c) A permit fee shall be determined from time to time by the City Council. Sec. 21-79. Location of Utilities. The City may restrict the placement and location of any facility located within a right-of- way. Placement and location of all facilities shall be subject to the approval of the Director of Public Works. Approval of the placement and location of any facility by the Director of Public Works shall not be construed to be a waiver of the absolute power of the City to require the removal, relocation, or modification of the placement and location of a facility in order to protect the public's health, safety, or welfare. Sec. 21- 80. Appearance Standards. 1. The City may prohibit the installation of facilities in a location in order to protect visual quality. 2. A freestanding facility may be constructed only if its construction does not impair the public's health, safety, or welfare and its placement does not impair the aesthetic quality of the land upon which it is located. 3. The City may require that a freestanding facility be screened or landscaped in a manner so as to preserve the visual aesthetics in the area in which it is located. Any screening or landscaping required by the City shall be installed and maintained by the utility at its own expense. 4. If, at any time, the Director of Public Works, in his/her sole discretion, determines that the screening or landscaping around a utility is not properly maintained, the Director of Public Works shall cause a notice to be sent to the utility notifying the utility of the location of the facility and the corrective action that must be taken by the utility. The utility shall have 30 days from the date of the notice to complete the corrective action contained therein. If the utility fails to complete the necessary corrective action, the City may exercise its right to draw on the utility's letter of credit in order to complete the necessary maintenance to the location. Sec. 21-81. Letter of Credit. The City may require, at least thirty days prior to the commencement of operation by the utility in the right of way, a letter of credit for a period of one year in an amount sufficient to reimburse the City for the cost of maintaining the landscaping and screening around the utility's facilities. Said letter of credit shall be from a bank approved by the City and shall be renewed by the utility no less than thirty days prior to the end of each one year period for an additional one year period. The City may draw on said letter of credit if the utility fails to properly maintain any facility in accordance with the Appearance Standards contained in section 21-80. Utilities in Right of Way, Page 2 Draft 812212007 Sec. 21-82. Gas Pipes. Any person or company maintaining any gas pipe in the City shall keep such pipe free from leaks so that no injury shall be done thereby to any person or property. Sec. 21-83. Removal, Relocation or Modifications of Utility Facilities. Within 60 days following written notice from the City, any person or company shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any utility or cable facilities within the public right-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 initiated improvements or City operations on, over, under or within, such public right-of-way. To the extent this provision conflicts with the terms of an existing franchise agreement or with state law, the terms of the franchise agreement or state law shall govern. However nothing in this provision shall be interpreted as a fee to any utility or cable company for the use of the City's rights -of -way. Sec. 21-84. 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 public right-of-way shall, at its own expense, remove all or any part of such facilities or appurtenances from such public right-of-way. A facility is unauthorized and subject to removal in the following circumstances: 1. Upon expiration or termination of the permit holder'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 Article; or 4. If the facility was constructed or installed at a location not permitted by the permit holder's license or franchise. Sec. 21-85. Emergency Removal or Relocation of Facilities. The City retains the right and privilege to cut or move any facilities located within the City public right-of-way as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. If circumstances permit, the City 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. Utilities in Right of Way, Page 3 Draft 812212007 Sec. 21-86. Abandonment of Facilities. Upon abandonment of a facility within the City public right-of-way, 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 Director of Public Works determines that such removal will be in the best interest of the public health, safety and welfare. In the event 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 use, alteration or removal of all or any portion of the facility by another utility or person. Sec. 21-87. Cleanup and Restoration. Upon completion of all construction or maintenance of facilities, the utility shall, at its own expense, remove all excess material and restore all turf and terrain in a timely manner and 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 Director of Public Works. Such cleanup and repair may be required to consist of backfilling, re -grading, re -seeding, re -sodding 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. Sec. 21-88. Annual Registration Required. Every utility that occupies a City public right-of-way shall register on January 1 of each year with the Director of Public Works, providing the utility's name, address and regular business telephone and facsimile 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 the name, address and regular business telephone and facsimile number of one or more contact persons who shall receive any notices resulting from this Article. Each utility also shall provide evidence of insurance coverage reasonably consistent with industry standards. Sec. 21-89. Article V Shall Prevail. Nothing in this Article V shall exempt any utility working in the right-of-way from any other provisions of this Chapter 21. To the extent other provisions of this Municipal Code may conflict with the provisions of this Article V, the more restrictive shall prevail. Sec.21-90. Penalties. Any person who violates, disobeys, omits, neglects or refuses to comply with any provision of this Article shall be subject to a fine in accordance with Article herein. There may be times when the City will incur delay or other costs, including third party claims, because the utility will not or cannot perform its duties under its permit and this Article. Unless the utility shows that another allocation of the cost of undertaking the requested action is appropriate, the utility shall bear the City's cost of damages and its cost of installing, maintaining, modifying, relocation or removing the facility that is the subject of the permit and improvements. No other Utilities in Right of Way, Page 4 Draft 812212007 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. SECTION 3: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain and continue in full force and effect. SECTION 4: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. SECTION 5: This Ordinance shall be in full force and effect upon its passage, approval and publication in pamphlet form (which publication is hereby authorized) as provided by law. Voting Aye: SANTI, GLAB, SCHAEFER, MURGATROYD, WIMMER, PETERSON, CONDON Voting Nay: NONE Absent: NONE NONE Abstain: APPROVED: ayor Susan E. Low (SEAL) ATTEST: CSC- C . Cit Clerk Jam" C. ones Passed: 7 - Approved: 0 -oZ 7- 6 1 pjh: McHenry.Ord I ROW. ord. doc Utilities in Right of Way, Page 5