Details for CITY OF DAVENPORT - LEGALS - Ad from 2019-04-13
City of Davenport City Council Meeting Minutes April 10, 2019 The City Council of Davenport, Iowa met in regular session on April 10, 2019 at 5:30 PM in the Council Chambers at Davenport City Hall, 226 W 4th St, Davenport, IA with Mayor Klipsch presiding and all aldermen present. I. Moment of Silence II. Pledge of Allegiance III. Roll Call IV. Meeting Protocol and Decorum V. Approval of Minutes APPROVED Approval of the City Council Meeting Minutes for March 27, 2019 VI. City Administrator Update VII. Report on Committee of the Whole APPROVED Approval of the Report of the Committee of the Whole for April 3, 2019 COUNCIL CHAMBERS, CITY HALL, Davenport, Iowa, Wednesday, April 3, 2019--The Council observed a moment of silence. Pledge of Allegiance. The Council met in Committee of the Whole at 5:30 PM with Mayor Klipsch presiding and all aldermen present. The following proclamation was issued: National Library Week. The following Public Hearings were held: Community Development: on the allocations for Year 45 (July 1, 2019 – June 30, 2020) Community Development Block Grant (CDBG) funds and HOME Investment Partnership (HOME) funds; on the proposed conveyance of the following properties as part of the Urban Homestead Program: 1412 West 15th Street, Parcel H0010-04, to Kelli Torres (Petitioner) and 1501 Eastern Avenue, Parcel E0016-22, to Kelly DeBolt (Petitioner). Public Works: for the Ordinance to change the name of a section of E 60th St to Duggleby Ave located in Eastern Avenue Farms 5th Addition (City of Davenport, petitioner); to review an application for a State Revolving Fund (SRF) Loan related to the proposed improvements to the City’s 1930’s Interceptor Sewer, CIP #30038; on adopting the Davenport GO Multi-Modal Transportation Plan as an element of the City of Davenport Comprehensive Plan, CIP #10151; on the plans, specifications, forms of contract, and estimated cost for the 100 Block of E 3rd St Streetscape Improvements Project, CIP #35022; on the plans, specifications, forms of contract, and estimated cost for covering the Kaiserslautern Square Upgrades Project, CIP #68004; on the plans, specifications, forms of contract, and estimated cost for the State Patching Program, CIP #35035. Finance: on the proposed conveyance of parcel Y0621-05B lying west of the residence at 6700 Jersey Ridge Road (City of Davenport, petitioner). Action items for Discussion: (The votes on all motions were by voice vote. All votes were unanimous unless specifically noted.) Community Development: Ald. Rawson reviewed all items listed. On motion by Ald. Ambrose, second by Ald. Dickmann item #2 moved to the Discussion Agenda and all other items moved to the Consent Agenda. Public Safety: Ald. Gripp reviewed all items listed. On motion by Ald. Dickmann, second by Ald. Rawson all items moved to the Consent Agenda. Public Works: Ald. Dunn reviewed all items listed. On motion by Ald. Condon, second by Ald. Rawson all items moved to the Consent Agenda. Finance: Ald. Matson reviewed all items listed. On motion by Ald. Clewell, second by Ald. Rawson all items moved to the Consent Agenda. Council adjourned at 6:56 PM. VIII. Appointments, Proclamations, Etc. A. Proclamation 1. Boys & Girls Club Week, April 8 -12 ISSUED 2019-116 IX. Presentations A. Local Business “The Foundation of Our Community”: Koehler Electric HELD X. Petitions and Communications from Council Members and the Mayor A. Community Engagement Update Alderwoman Meginnis XI. Individual Approval of Items on the Discussion Agenda 1. Resolution for Case P19-01: Request of Grunwald Land Development for a preliminary plat of West Lake Settlement on 79 acres located in unincorporated Scott County southwest of the Locust Street/Interstate 280 Interchange containing 47 lots. [Adjacent to Ward 1] FAILED STAFF AND PLAN AND ZONING COMMISSION RECOMMEND DENIAL XII. Approval of All Items on the Consent Agenda **NOTE: These are routine items and will be enacted at the City Council Meeting by one roll call vote without separate discussion unless an item is requested to be removed and considered separately. 1. Third Consideration: Ordinance amending various sections of Chapter 12.20 (Right of Way Management Regulations) to clarify specific standards for wireless structures placed within the City. [All Wards] ADOPTED 2019-117 ORDINANCE NO 2019-117 Ordinance amending various sections of Chapter 12.20 (Right of Way Management Regulations) to clarify specific standards for wireless structures placed within the city. Chapter 12.20 RIGHT OF WAY MANAGEMENT REGULATIONS Sections: 12.20.010 Title. 12.20.020 Legislative findings. 12.20.030 Purposes. 12.20.040 Rules of construction. 12.20.050 Definitions. 12.20.060 Authority. 12.20.070 Reservation of rights; police power. 12.20.080 Authorization required. 12.20.090 Construction standards. 12.20.100 Placement of facilities. 12.20.110 Relocation of facilities. 12.20.120 Restoration. 12.20.130 Work permits. 12.20.140 Business license. 12.20.150 Reimbursement of costs. 12.20.160 Administration and permitting to use space within the right-of-way. 12.20.170 Specific Standards for Wireless Structures. 12.20.180 Reports and records. 12.20.190 Bond or letter of credit. 12.20.200 Insurance. 12.20.210 Enforcement. 12.20.220 Indemnification. 12.20.230 Severability. 12.20.010 Title. This chapter is known and may be cited as the Davenport Right-of-Way Management Ordinance. (Ord. 2017-111 § 1 (part)). 12.20.020 Legislative findings. The city council hereby finds and declares: A. That the public rights-of-way within the city can be partially occupied by public utilities and other service entities for facilities used in the delivery, conveyance, and transmission of services rendered by private or for profit entities, to the enhancement of the health, welfare, and general economic well-being of the city and its citizens; B. That the public rights-of-way within the city are physically limited so that proper management by the city is necessary to maximize the efficiency and to minimize the costs to the taxpayers of the foregoing uses, to prevent foreclosure of future uses through premature exhaustion of available right-of-way capacity, and to minimize the inconvenience to the public from such facilities’ construction, emplacement, relocation, and maintenance in the rights-of-way; C. That the use of the public rights-of-way by multiple users renders more pressing the city’s right-of-way management responsibilities; D. That the public rights-of-way within the city are valuable public property acquired and maintained by the state and the city at great expense to the taxpayers; E. That the right to occupy portions of such public rights-of-way for limited times for the business of providing utility and information services is a valuable economic asset; and F. The city’s street and alley rights-of-way are owned or held by the city primarily for the purpose of pedestrian and vehicular passage and for the city’s provision of essential public safety services, including police and fire services; the city’s provision of public health services, including solid waste removal, sanitary sewer and storm drainage services; and other municipal operations and the means to support and provide those services — these interests are paramount. (Ord. 2017-111 § 1 (part)). 12.20.030 Purposes. The city council adopts this chapter to better: A. Manage a limited resource to the long term benefit of the public; B. Recover and allocate the costs of managing the public rights-of-way; C. Minimize inconvenience to the public occasioned by the emplacement and maintenance of facilities in the public rights-of-way; D. Prevent premature exhaustion of capacity in the public rights-of-way to accommodate communications and other services; and E. Promote competition in the provision of communications service in the city and ensure that citizens have a wide variety of services available to them by establishing clear and consistent rules by which providers may occupy the public rights-ofway. (Ord. 2017-111 § 1 (part)). 12.20.040 Rules of construction. A. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number, and words in the singular number include the plural number; and the masculine gender includes the feminine gender. B. The words “shall” and “will” are mandatory, and “may” is permissive. C. Unless otherwise specified, references to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations not in force on hereinafter enacted or amended. D. Any conflict between this chapter and a city franchise agreement or Iowa Utilities Board (“IUB”) authorization will be resolved in favor of the terms of the city franchise agreement or IUB authorization. E. Nothing in this chapter shall be construed to create a special duty by the city to any owner or operator of a facility within the right-of-way. F. Nothing in this chapter shall be construed to create any property interest or right to occupy space within the right-of-way whatsoever. G. In the case of conflict, the rights granted to an owner or operator by federal or state law shall not be impaired. (Ord. 2017-111 § 1 (part)). 12.20.050 Definitions. For the purposes of this chapter the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. Unless otherwise expressly stated, words not defined herein shall be given the meanings set forth in Title 47 of the United States Code, as amended, and, if not defined therein, their common and ordinary meaning. AFFILIATE: When used in relation to any person, means another person who de facto or de jure owns or controls, is owned or controlled by, or is under common ownership or control with, such person. CITY: City of Davenport, Iowa, and any agency, department, or agent thereof. CITY ADMINISTRATOR: The person appointed pursuant to Section 2.30.030 of this code or her designee. CITY ENGINEER: The city engineer or the city engineer’s designee. COMMUNICATIONS FACILITY OR COMMUNICATIONS SYSTEM: Facilities for the provision of “communications services,” as that term is defined herein. COMMUNICATIONS SERVICES: Tele-communications services, interactive computer services, and any other services involving the transmission of information by electronic or optical signals, except that it shall not include cable service as that term is used in the cable communications policy act of 1984, as amended. COUNCIL: The principal governmental body of the City of Davenport, Iowa, its officers, or a representative person or entity as may be designated to act on its behalf. FACILITY OR FACILITIES: Any tangible asset in the public right-of-way used to provide drainage, sanitary or storm sewer, gas, electric, water or communication/information services. FEDERAL COMMUNICATIONS COMMISSION OR FCC: The Federal Communications Commission or any successor. FRANCHISE: An authorization granted by the city to a person to construct, maintain, or emplace facilities generally upon, across, beneath, and over the public rights-of-way in the city, subject to the terms and conditions specified in a franchise agreement. The term also includes an authorization by the Iowa Utilities Board or other appropriate authority or as otherwise authorized by law. FRANCHISE AGREEMENT: The contract entered into between the city and a grantee that sets forth the terms and conditions under which the franchise may be exercised. GRANTEE: A person that has been granted a franchise by the city or right to operate within Davenport by the Iowa Utilities Board or other appropriate authority or as authorized by law or such other parties that wish to locate facilities in the right-of-way. OWNER OR OPERATOR OF A FACILITY: Any person which has a possessory interest in such facility or which controls or is responsible for, through any arrangement, the management and operation of such facility. PERMITTEE: A person who has received a permit to locate a facility or facilities within the right-of-way. PERSON: Any individual, corporation, partnership, association, joint stock company, trust, governmental entity, or any other legal entity, but not the city. PUBLIC RIGHTS-OF-WAY: The surface and space above, on, and below any public highway, avenue, street, lane, alley, boulevard, concourse, driveway, bridge, tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, public easement, or right-of-way within the city in which the city now or hereafter holds any property interest which, consistent with the purposes for which it was dedicated or otherwise acquired, may be used for the purpose of constructing, operating, and maintaining a facility. TELECOMMUNICATIONS: This term has the meaning ascribed to it in 47 USC section 153(43). TELECOMMUNICATIONS SERVICE: This term has the meaning ascribed to it in 47 USC section 153(46). WORK PERMIT: An authorization issued by the city to enter upon the public rights-of-way at specified times and places to erect, construct, emplace, or otherwise work on facilities. (Ord. 2017-111 § 1 (part)). 12.20.060 Authority. This chapter is adopted pursuant to the city’s powers, including, but not limited to, those under title III, section 38A of the Iowa constitution and section 364.2 of the Iowa Code. (Ord. 2017-111 § 1 (part)). 12.20.070 Reservation of rights; police power. All rights and privileges granted in a franchise agreement are subject to the police powers of the city and its rights under applicable laws and regulations to exercise its governmental powers to their full extent and to regulate a grantee and the construction, operation and maintenance of the grantee’s system, including, but not limited to, the right to adopt, amend, and enforce ordinances and regulations as the city shall find necessary in the exercise of its police powers, the right to adopt and enforce applicable zoning, building, permitting and safety ordinances and regulations, the right to adopt and enforce ordinances and regulations relating to equal employment opportunities, and the right to adopt and enforce ordinances and regulations containing right-of-way, telecommunications, utility and cable television consumer protection and service standards and rate regulation provisions. Further, nothing in this chapter shall prevent the city from constructing, repairing or replacing sewers; grading, paving, repairing, or replacing any right-of-way; or constructing, repairing, or replacing any other public work or facility, or from performing work pursuant to weather related activities or response to natural disasters. Nothing shall prevent the city from altering the layout or design of a right-of-way for public safety reasons. (Ord. 2017-111 § 1 (part)). 12.20.080 Authorization required. A. No person shall install, erect, hang, lay, bury, draw, emplace, construct, reconstruct, maintain, or operate any facility upon, across, beneath, or over any public right-of-way in the city or other city property without first obtaining from the city the necessary authorization (e.g., in the case of a cable operator, a franchise) required under local, state or federal law. B. An owner or operator of facilities may be required to hold different authorizations for its use of the public rights-of-way to provide different services. For example, and without limitation, the owner or operator of facilities that provides both cable service and telephone service must obtain both a cable franchise and any authorization needed to provide telephony. (Ord. 2017-111 § 1 (part)). 12.20.090 Construction standards. A. Compliance with Regulations; Safety Practices: Construction, operation, maintenance, and repair of facilities shall be in accordance with all applicable law and regulation, and with sound industry practice. All safety practices required by law shall be used during construction, maintenance, and repair of facilities. B. Excavations: No holder of any work permit for any facility shall dig, trench, or otherwise excavate in the public rights-of-way without complying with the provisions of the Iowa one call system, Iowa Code § 480.3 et seq., or its successor. C. Prevention of Failures and Accidents: An owner or operator shall at all times employ at least ordinary care and shall install and maintain using commonly accepted methods and devices preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public. D. Most Stringent Standards Apply: In the event of a conflict among codes and standards, the most stringent code or standard shall apply (except insofar as that standard, if followed, would result in a system that could not meet requirements of federal, state or local law, or is expressly preempted by other such standards). E. Trimming of Trees: A grantee or permittee shall have the authority to trim trees that overhang public rights-of-way of the city so as to prevent the branches of such trees from coming in contact with the facilities of the grantee or permittee, in accordance with standards approved by the city administrator and administered by the city arborist or ANSI standards. Grantee or permittee shall be responsible for notifying abutting property owners. F. Construction Schedule: Every owner or operator shall, at least forty-five (45) days prior to commencing significant construction activity (including a significant rebuild, upgrade, or repair to existing facilities) - emergencies excepted - upon, across, beneath, or over any public right-of-way in the city or other city property, strive to provide to the city in writing the date on which the owner or operator anticipates it will begin construction and the approximate length of time required for such construction. This timeframe represents a preference only. G. Coordination of Construction with City: Prior to the erection, construction, upgrade, or rebuild of any facilities in the public right-of-way, the owner or operator of such facilities shall first submit to the city for written approval a concise description of the facilities proposed to be erected or installed, including engineering drawings, if required by the city, together with maps and plans indicating the proposed location of all such facilities. The owner or operator shall provide the best information it has in such reasonable format as may be specified by the city engineer for the city›s planning function. No such erection or construction shall be commenced by any person until approval therefor has been received from the city. At the time of such approval, the city shall inform the grantee whether the reports and other information described by subsection 12.20.180C.1 of this chapter shall be required with respect to the approved construction. H. Coordination of Construction with Third Parties: Developers or other parties planning the construction or opening of streets in the city shall provide reasonable notice to the city and to the owners or operators of facilities subject to this chapter so that joint trenching and joint emplacement of facilities may be conducted wherever practicable. Such owners and operators shall similarly provide notice to each other and to any relevant developers, for the same purpose. The city shall maintain a list of owners and operators of facilities subject to this chapter for reference by other parties. I. City Engineer Stakeholder Meetings: The city engineer may establish recurring meetings of businesses who make use of the right-of-way for their facilities and contractors who perform such work to discuss ongoing and upcoming projects to further the efforts of coordinating projects within the right-of-way. J. Contractors and Subcontractors: Any contractor or subcontractor used for work or construction, installation, operation, maintenance, or repair of facilities in the public rights-of-way must be properly licensed and insured under laws of the state and all applicable local ordinances. Each contractor or subcontractor shall have the same obligations with respect to its work as an owner or operator of the facility would have if the work were performed by the owner operator. An owner or operator shall be responsible for all activities carried out by its contractors, subcontractors and employees at the owner›s or operator›s request. K. Publicizing Proposed Construction Work: The owner or operator of facilities in the public rightsof-way shall notify the public prior to commencing any construction, other than emergency repair or overhead work that, in its determination, will significantly disturb or disrupt public property or have the potential to present a danger or affect the safety of the public generally. Written notice of such construction work shall be delivered to the city at least one week prior to commencement of that work. Notice shall he provided to those persons most likely to be affected by the work in at least one (1) of the following ways: by telephone, in person, by mail, by distribution of flyers to residences, by publication in local newspapers, by clearly legible signage at the location of the proposed work, or in any other manner reasonably calculated to provide adequate notice. (Ord. 2017111 § 1 (part)). 12.20.100 Placement of facilities. A. All facilities shall be installed and located to minimize interference with the rights and convenience of other property owners. B. An owner or operator of facility shall not place facilities, equipment, or fixtures where they will interfere with any other facilities, or obstruct or hinder in any manner the various utilities serving the residents of the city or their use of any public rights-of-way. Placement of facilities may be denied if the facility proposed will occupy greater that ten-percent (10%) of the available clear rightof-way area to a ten foot depth. C. The city may reasonably direct the specific placement of facilities to ensure that users of the public rights-of-way do not interfere with each other and that the public rights-of-way are used safely and efficiently. For example, in the case of an owner or operator of a fiber optic network that is not a “Public Utility” under Iowa Code Chapter 480A, the city engineer may order extra ducts for fiber optic cable be installed for use by the city or other grantees or permittees when, in the opinion of the city engineer, the subject right-of-way is too congested due to existing facilities and space limitations or will likely be used by at least four other entities including the city for running fiber optic cable. Such company shall then certify to the city engineer the additional cost of said installation per linear foot which the city shall pay. Other future users of the surplus duct will be charged an upfront, one-time fee to locate in said duct to recover a proportional share of the city’s upfront and carrying costs as calculated by the city engineer. This fee will be in addition to, and not in lieu of, any recurring fee charged by city for location within the right-of-way. D. Every grantee or permittee that ceases operating or maintaining any facility shall, upon written request of the city within two (2) years of the cessation of maintenance of such facility, promptly remove it. Should the grantee or permittee neglect, refuse, or fail to remove such facility, the city may remove the facility at the expense of the grantee or permittee. The obligation to remove shall survive the termination of the franchise or permit for a period of two (2) years and shall be bonded. The city engineer may determine that it is in the best interests of the city to allow the facility to be wholly or partially abandoned in place. E. No owner or operator of a facility shall erect new aerial plant, other than to repair existing plant, in or on a public right-of-way in which both electric and telephone service providers have placed their lines underground, or in an area which the city has by ordinance forbidden new aerial plant to be constructed or existing aerial plant to be maintained. F. If at any time the city determines that existing wires, cables or other like facilities of public utilities anywhere in the city shall be changed from an overhead to underground installation, the owner or operator of a facility shall, at no expense to the owner or operator, convert its system in that location to an underground installation unless the owner or operator’s city franchise agreement, tariff or applicable state or federal law provides otherwise. G. A grantee or permittee shall use, with the owner’s permission, existing poles, conduits and other facilities whenever feasible. A grantee or permittee may not erect poles, conduits, or other facilities in public rights-of-way without the express permission of the city. Copies of agreements for use of conduits or other facilities shall be filed with the city upon city request. The city engineer may require that foundation plans and structural load analysis signed and sealed by a professional engineer licensed in the State of Iowa be submitted for review and approval for either reuse of an existing pole or installation of a new pole. Soil boring analysis may be required for new pole installations. H. To the extent practicable, aboveground equipment placed on private property shall be placed at the location requested by the property owner. An owner or operator shall provide affected homeowners with at least ten (10) days’ advance written notice of its plans to install such equipment, and shall make reasonable efforts to confer with such homeowners before any work is done. I. Whenever aboveground equipment is placed on private property within a utility easement, the grantee or permittee shall provide landscaping camouflage reasonably acceptable to the city engineer, at the grantee’s or permittee’s expense. It shall be the grantee’s or permittee’s responsibility to negotiate the terms of the camouflage with the city engineer. J. Any underground fiber optic project by a nonIowa Code Chapter 480A Public Utility involving a run of less than a full city block is not allowed unless it is ancillary to a wireless facility. K. The city engineer may develop and institute a standardized cross-section location protocol for new or reconstructed rights-of-way. L. Unless exigent circumstances exist, no new facilities may be installed that disturb the roadway hard surface or subsurface/subbase within three years of the construction or reconstruction of the roadway. M. All above ground facilities, whether placed within public right-of-way or private property within a utility easement shall aesthetically match the surrounding area. Equipment shall be concealed or housed within the smallest possible cabinet or other appropriate enclosure. No external loose cables or wires shall be allowed. Owners of facilities shall maintain such in good working order and condition. N. No above ground poles or structure within the public right-of-way shall exceed thirty (30) feet in height from the ground surface. This item shall not be applicable to electrical transmission facilities. (Ord. 2017-111 § 1 (part)). 12.20.110 Relocation of facilities. The owner or operator of a facility on or within the public rights-of-way shall, at its own expense, upon written notice from the city reasonably in advance, promptly relocate any facility located on or within the public rights-of-way as the city may deem necessary or appropriate to facilitate the realignment (for public safety reasons), reconstruction, improvement or repair of public streets, sidewalks, curbs, drains, sewers, and public improvements of any sort; provided, however, that an operator may be permitted to abandon any property in place with the written consent of the city. This subsection does not apply to relocations covered by 12.20.100F. (Ord. 2017111 § 1 (part)). 12.20.120 Restoration. A. Unless governed contractually between the owner or operator and its customer, if an owner or operator of a facility disturbs a pavement, sidewalk, driveway or other surfacing, or landscaping, or other structure, either on private property or in public rights-of-way, the owner or operator shall, in a manner approved by the city engineer, replace and restore all pavement, sidewalk, driveway or other surfacing, or landscaping disturbed, in substantially the same condition and in a good, workmanlike, timely manner, in accordance with any standards for such work set by the city. Such restoration shall be undertaken within no more than ten (10) days after the damage is incurred, weather permitting, and shall be completed as soon as reasonably possible thereafter. The owner or operator shall guarantee and maintain restoration of a public improvement for at least one year against defective materials or workmanship. B. In the event an owner or operator of a facility fails to complete any work required for the protection or restoration of the public rightsof-way, or any other work required by city law or ordinance, within the time specified by and to the reasonable satisfaction of the city, the city, following notice and an opportunity to cure, may cause such work to be done, and the owner or operator of a facility shall reimburse the city the cost thereof within thirty (30) days after receipt of an itemized list of such costs; or the city may recover such costs through the security fund provided by an owner or operator of a facility, pursuant to the procedures for recovery from the security fund specified in the owner’s or operator’s franchise agreement. C. Any and all public rights-of-way, public property, or private property that is disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance, or reconstruction of a system shall be promptly repaired by the owner or operator of a facility. (Ord. 2017-111 § 1 (part)). 12.20.130 Work permits. A. Unless otherwise provided by law, franchise, IUB authorization or emergency circumstances, no person shall install, erect, hang, lay, excavate, bury, draw, emplace, construct, or reconstruct any facility upon, across, beneath, or over any public right-of-way in the city, or enter into the public rights-of-way to work on a facility, without first obtaining a work permit therefor from the city. Notwithstanding the foregoing, under no provision in this chapter shall any work permit or other approval from the city be required to install, construct, repair, maintain or replace any service drop. B. Denial. The city engineer may deny a work permit for failure to meet the requirements of this chapter, failure to meet monetary obligations to the city or it is necessary to protect the health, safety and welfare or the right-of-way and its current use. Failure to meet the requirements includes, but is not limited to, striking or damaging another facility within the right-of-way. C. Large Capital Programs. The city engineer may develop and institute a special streamlined permit and inspection process for large capital programs by mutual agreement with the applicant or applicants in the case of a joint project after receiving authorizing from the city administrator. D. The city engineer may issue a stop work order to anyone failing to secure the proper permit or for not following the ordinances or city standards. (Ord. 2017-111 § 1 (part)). 12.20.140 Business license. A franchise under this chapter does not render unnecessary or take the place of any generally applicable business license that may be required by the city for the privilege of transacting and carrying on a business within the city generally. (Ord. 2017-111 § 1 (part)). 12.20.150 Reimbursement of costs. All grantees or permittees will reimburse the city for its internal and out of pocket costs, including, but not limited to, attorney and consultant fees actually and reasonably incurred by the city in connection with an application for an initial franchise or permit under this chapter as determined by the city after it takes action on the application. Any application fee submitted with the application will be credited against this amount. The applicant will remit to the city payment for such costs within thirty (30) days of its receipt of the city’s invoice. (Ord. 2017-111 § 1 (part)). 12.20.160 Administration and permitting to use space within the right-of-way. A. The city engineer shall oversee the following administrative functions: 1. Collect any applicable fees from all owners or operators of facilities using public rights-of-way in the city; 2. Audit any franchise fees or payments owed to the city; 3. After approval by separate ordinance of the applicability, amount and formula for a right-ofway occupancy fee, publish from time to time a schedule of applicable fees hereunder; 4. Be responsible for the continuing enforcement of all terms and conditions of citygranted franchises. B. The city engineer shall oversee permitting as follows: 1. No person shall occupy or use public right-of-way for the purpose of providing utility, communication, information or data services to customers without first obtaining a franchise or permit from the city or the authorization from the Iowa Utilities Board or other appropriate authority or as otherwise authorized by law. The city shall not grant, issue, or enter into any franchise or permit that grants or allows exclusive use or occupancy of the right-of-way. Any person seeking a franchise or permit for use of city rightof-way shall make application for a franchise or permit as provided in this chapter. An application for a franchise or permit for occupancy or use of a right-of-way shall be filed with the city engineer on a form developed and provided by the city engineer. 2. Authority to Issue Permit; Form of Permit and Term. a. Permits required by this chapter shall be issued by the city engineer. The city engineer shall review each application and shall issue each permit which he or she determines to be in compliance with the requirements of this chapter and any other applicable local, state, or federal requirements. In issuing a permit, the city engineer may require a change in the proposed location of the permittee’s equipment where necessary to avoid interference with other equipment placed within the public right-of-way. b. Permits issued pursuant to this chapter shall be in writing and shall be executed by the permittee. The form of permits to be issued pursuant to this chapter shall be uniform, but shall be subject to periodic review and modification. When available, the city engineer may implement an electronic or digital permit system. 3. Limit on Term of Franchises; Limit on Initial or Renewal Term of Permits. a. No franchise for use of the public right-ofway shall be granted for a term in excess of 25 years. b. No permit for use of the public right-of-way issued by the city engineer shall be issued or renewed for a term in excess of 25 years. 4. Existing Facilities. Any facilities existing on or before May 1, 2017 and mapped are exempt from the issuance of a permit for occupancy. 5. Application for Initial Issuance of a Permit; Registration Required. A person desiring to obtain a permit as required in this chapter shall register such proposed use and occupancy of public right-of-way, shall make application for a permit for such use and occupancy as provided in this chapter, and shall pay an application fee for initial issuance of the permit. The application fee for initial issuance of a permit and any future changes thereto shall be effective upon its inclusion in a schedule of fees adopted by the city council by resolution such fee shall be based upon the administrative costs of processing the permit. The application for initial issuance of a permit shall be filed with the city engineer not less than 60 days prior to the proposed effective date of the permit and shall be filed upon a form provided by the city for that purpose. The application shall include, at a minimum, the following information: a. The name, address and telephone number of the applicant. b. The name, address and telephone number of a responsible person whom the city may notify or contact at any time or in case of emergency concerning the equipment or utility system. c. A statement of the purpose for the equipment or system proposed for installation in the public right-of-way, the type of service it will provide, and the intended customers which it will serve. d. Any additional information which the city engineer in his or her discretion may require. 6. Issuance and Renewal of Permits; Permit Revocation and Cancellation. a. Prior to the initial issuance of a permit for use or occupancy of public right-of-way, the city engineer shall conduct a review of the permittee’s background to determine the permittee’s ability to meet the requirements stated in subsection B.6.e of this section. If on the basis of such review the city engineer determines that it would not be appropriate to issue the permit, the city engineer shall give notice of intent not to issue the permit as provided in subsection B.6.g. of this section. b. To obtain renewal of a permit, the permittee shall file a renewal application with the city engineer on the form provided by the city and pay an application fee for renewal of the permit. The renewal application fee and any future changes thereto shall be effective upon its inclusion in a schedule of fees adopted by the city council by resolution. The renewal application shall be filed with the city engineer not less than 180 days prior to the expiration of the initial or any renewal term of the permit. Upon receipt of the renewal application, the city engineer shall conduct a review of the permittee and the permittee’s prior use of the public right-of-way to determine the permittee’s continued compliance with the requirements stated in subsections B.6.c. and B.6.e. of this section. If on the basis of such review the city engineer determines that the permittee and the permittee’s prior use of the public rightof-way complies with all requirements stated in subsections B.6.c. and B.6.e. of this section, the city engineer may renew the permit for an additional term of up to 25 years. If on the basis of such review the city engineer determines that the permittee and the permittee’s use of public right-of-way do not comply with one or more of the requirements stated in subsections B.6.c. and B.6.e. of this section, the city engineer shall give notice of intent not to renew the permit as provided in subsection B.6.g. of this section. If a permittee holds multiple permits for use or occupancy of various rights-of-way within the city for the same or similar purpose, the permittee shall be required to renew all such permits under a single permit at such time as the earliest issued permit expires. c. In determining the length of the term of an initial or a renewal permit, the city engineer shall take into consideration the likelihood that the city will require the use of the specific portion of the subject right-of-way for municipal purposes or that such use of the subject right-of-way will unduly burden the city or the public in its use of the subject right-of-way during the proposed term of the permit and the life cycle of the technology to be deployed. A permit shall not be issued or renewed if the city engineer determines that any of the following conditions exist in the right-of-way proposed for licensing: (1) There is insufficient space in the right-ofway to accommodate the proposed use, given the other existing uses thereof; (2) The proposed private utility service connection would interfere with or conflict with existing or planned city equipment or utility equipment located or to be located in the right-ofway; (3) Such use is incompatible with adjacent public or private uses of that right-of-way. (4) Such use would involve an unacceptably high frequency of repair or maintenance to the private utility service equipment thereby requiring excessive excavation in or obstruction of the rightof-way; or (5) The construction or installation of such private utility service equipment would interfere with a public improvement undertaken or to be undertaken by the city or with an economic development project in which the city has an interest or investment. d. If during the term of any permit the city engineer determines that the permit should be revoked due to the permittee’s failure to comply with any of the requirements stated in subsection B.6.e. of this section, the city engineer shall give notice of intent to revoke such permit as provided in subsection B.6.g. of this section. e. The following shall constitute grounds for refusal to issue or renew a permit, or for revocation of a permit for use or occupancy of public right-ofway: (1) The permittee’s failure to observe or comply with any of the following: (a) The permittee’s use or prior use of public right-of-way has been conducted in full and timely compliance with all laws and regulations applicable thereto, and the permittee has complied fully and in a timely manner with the requirements of any previously issued permit, and with the orders or instructions of city officials issued pursuant to this chapter; or (b) The permittee is current in the payment of permit fees, if applicable, and the permittee has made such payments fully and when due. (2) The permittee’s commission of any of the following acts: (a) The permittee has made a misleading statement or a material misrepresentation in connection with an application for initial issuance or renewal of a permit, in connection with its registration of its use of the public right-of-way or in connection with its use of public right-of-way; or (b) The permittee has transferred its equipment, its business, or its permit to another person or has made a change in use of its equipment, without giving the city notice thereof and obtaining city consent thereto; or (c) Striking or damaging another facility within the right-of-way. (3) The subject right-of-way is highly congested and a reasonable likelihood exists in the city engineer’s opinion that the space is needed in the future for a different service to a broader segment of the population. f. The city engineer shall give notice of intent to cancel such permit as provided in subsection B.6.g. of this section if during the term of any permit the city engineer determines that: (1) The permittee’s continued use of the public right-of-way will unduly burden the city or the public in its use of that property; (2) The public right-of-way for which the permit was issued will be required for municipal purposes during the term of the permit; (3) The permittee’s equipment at a particular location will interfere with: (a) A present or future city use of the right-ofway; (b) A public improvement undertaken or to be undertaken by the city; (c) An economic development project in which the city has an interest or investment; or (d) The public’s safety or convenience in using the right-of-way for ordinary travel; or (4) The public health, safety and welfare requires it. g. Notice of intent not to issue a permit for use of the public right-of-way shall be given to the applicant, either by certified mail, return receipt requested, or by actual service or delivery thereof. Notice of intent not to renew a permit for use of the public right-of-way shall be given to the permittee, either by certified mail, return receipt requested, or by actual service or delivery thereof, which notice shall be given not more than 90 days after submission of the renewal application. Notice of intent to revoke or cancel a permit shall also be given to the permittee in the manner provided above. The notice shall set forth the grounds for refusal to issue or renew or for revocation or cancellation and shall inform the applicant or permittee of the right to an appeal hearing upon request. Such request for hearing shall be filed in writing with the city administrator, and the hearing shall he scheduled and held as provided in Chapter 2.86. At the hearing, the applicant or permittee shall have the burden of establishing that the grounds asserted in the notice do not exist. h. Upon the effective date of revocation or cancellation as provided in the city engineer’s notice thereof, or upon the effective date specified in the city engineer’s written decision upon the permittee’s appeal, the permittee shall be required to cease its use and occupancy of the right-of-way or to remove or relocate its equipment therefrom, as provided in the notice or decision. Equipment not removed or relocated from the right-of-way as required in such notice or order shall be considered a nuisance and may be removed, relocated, or taken possession of by the city, at the permittee’s expense. Except in emergency circumstances, the requirement to relocate, remove, or cease use of equipment shall be suspended during the pendency of any appeal taken by a permittee pursuant to this chapter. i. If a permit is refused or cancelled upon the basis that the subject city property is or will be required for municipal purposes, the applicant or permittee shall not be entitled to appeal. However, in that event, the permittee shall be entitled to a partial refund of the annual fee already paid, such refund to be computed on the basis of 1/12 of the required annual fee multiplied by the number of unexpired whole months of the year remaining in the permit term. In all other cases where a permit is not issued or renewed or is revoked, no refund of any portion of the required annual fee shall be paid to the permittee. j. Notwithstanding the notice and hearing requirements of subsection B.6.g. of this section, the city engineer may in emergency circumstances order the immediate relocation or removal of equipment from the right-of-way. k. Regardless of any other provision, a refusal, cancellation or revocation may be appealed under the applicable processes specified in state or federal law such as Iowa Code Chapter 480A. 7. Failure to Secure, Renew or Comply. Any person who fails to secure or renew a franchise or IUB authorization or permit required under this chapter or any franchisee or permittee who fails to comply with the of the respective franchise or IUB authorization or permit, or this chapter, or with any other applicable legal requirements shall, upon notification of such violation by the city engineer, immediately act either to abate the violation or to cease its use and occupancy of the right-of-way and remove its equipment or system from the right-of-way. 8. Transfer of Franchise, Permit, Lease, Business, or Equipment Without City’s Consent; Change in Use of Equipment Without City’s Consent. A permit issued pursuant to this chapter shall not be transferred to any other person without the prior written notice to the city engineer. A permittee shall not transfer the permit, the business, or the equipment in the right-of-way to another person without giving the city engineer 90 days’ prior written notice of such proposed transfer. In such notice, the permittee shall clearly identify the proposed transferee, giving the name and address of a representative of the transferee who is authorized to discuss and provide information to the city regarding the transfer. A franchisee or permittee shall not change the use of its equipment without giving the city 90 days’ prior written notice of such proposed change in use. In such notice, the franchisee, permittee, or lessee shall clearly and completely set forth the proposed change in use of equipment, how it would be accomplished, including any excavations required to accomplish such change, and projections as to the future maintenance implications of such change in use. Any proposed change in use of a franchisee’s or permittee’s equipment shall require the prior approval of the city engineer. Such approval may be withheld if the city engineer determines that the proposed use of the equipment at that location would be incompatible with or would likely damage or endanger other uses of the right-of-way, would involve a higher level of maintenance activities than the present use, would involve more street excavation or greater traffic disruption than the present use, or would be otherwise inappropriate. 9. Amendment to Permit. If a permittee with a current permit issued pursuant to this division proposes to expand, reduce, relocate or modify any portion of its equipment or system within public right-of-way, the permittee shall file an application for an amendment to the current permit with the city engineer, shall pay the administrative application fee, and shall further comply with all other applicable requirements of this chapter. An application for an amendment to a current permit shall include relevant new information of the type required in connection with the initial application for a permit. If approved, the amended permit shall be issued by the city engineer in the same manner as the original permit. However, if the amendment involves only one or more new hook-on connections to the permitted utility system and if the new connections will be made entirely through the permittee’s existing underground utility conduit or ducts so as not to require any excavation in the public right-of-way or by means of overhead wires or cables between existing utility poles, the permittee shall not be required to pay an additional administrative fee as part of the application for amendment. 10. Duties of Permittee. The permittee shall be responsible for repairing or reimbursing other permitted or franchised utilities or other persons or entities lawfully using the right-of-way for any damage to their property caused by negligence of the permittee or its agents, employees or contractors in connection with the installation, construction, reconstruction, repair, operation, disconnection or removal of the permittee’s equipment or system. (Ord. 2017-111 § 1 (part)). 12.20.170 Specific Standards for Wireless Structures A. The following standards shall apply to any wireless structures including small cell facilities, distributed antenna systems (DAS) and other telecommunication distribution facilities within the public right-of-way. 1. All equipment related to a wireless structures must be mounted/co-located on existing poles or other existing structures unless it can be shown that an alternate location will be less obtrusive and/or more beneficial to the public. 2. An applicant seeking installation of a wireless structures must demonstrate that it has made efforts to blend or camouflage the system with existing facilities and surroundings or has otherwise screened or concealed the system from view. Approved blending methods include, but are not limited to, location of equipment other than antennas within a tree canopy or other inconspicuous location, use of green, brown or other colored equipment (if commercially available to the applicant) designed to mimic the colors and/or materials of the tree canopy, co-location structure or other nearby structures, as well as use of textures and shapes as appropriate, all with the intent of minimizing the visual impact of the system. Unnatural colors and exposed cables are prohibited. 3. All pole-mounted wireless facilities must be installed at a minimum height of nine feet above the ground. Equipment may be housed in a cabinet at ground level only with the approval of the city engineer as to location and with appropriate screening. 4. Wireless facilities may not extend more than seven feet above the height of the existing pole or other structure on which it is installed. 5. Where wireless structures are placed in residential districts, every effort must be made to avoid placement at right of way locations directly in front of a residence. If placement directly in front of a residence is absolutely necessary for technological reasons, the City has the right to require screening or impose other design mitigation requirements. 6. The City may request that a particular node or nodes be placed in an alternative location to that proposed by the applicant. Where a request for an alternative location is unable to be accommodated by an applicant, the applicant must supply an explanation in writing as to why the suggested alternative location will materially compromise the functioning of the system or is otherwise impractical. 12.20.180 Reports and records. A. Open Books and Records: Upon request, the city shall have the right to inspect and analyze at any time during normal business hours at the nearest office of an owner or operator of facilities, or, if such office is not in the city, then at such other location in the city as the city may reasonably designate, all books, receipts, maps, records, codes, programs, and disks or other storage media and other like material reasonably appropriate in order to monitor compliance with the terms of this chapter or applicable law. This includes not only the books and records directly relevant to enforcement of this chapter or the owner’s or operator’s franchise agreement that are held by the operator, but any books and records held by an affiliate, or any contractor, subcontractor or any person holding any form of management contract for the facilities in the public rights-of-way to the extent such books or records relate to the facilities. An owner or operator is responsible for collecting the information and producing it at a location as specified above. The city shall provide the owner or operator with advance notice stating the types of records sought to be reviewed and the reason for such review. B. Contacts and Maps: Unless this requirement is waived in whole or in part in writing by the city each owner or operator of facilities in the public rights-of-way shall maintain and produce or allow access upon request the following items: 1. An organizational chart with contact information for the portion of the organization most relevant to its operations within the right-of-way. 2. Detailed, updated maps depicting the location of all facilities located in public rights-ofway in the city. C. Construction Updates: Unless this requirement is waived in whole or in part by the city, the owner or operator of facilities in the public rights-of-way shall deliver or make available upon request the following updates to the city: 1. Monthly construction reports to the city for any major construction undertaken in the public rights-of-way until such construction is complete. The owner or operator must submit updated as built system design maps to the city, or make them available for inspection, with notice of their availability, within thirty (30) days of the completion of system construction in any geographic area. These maps shall be developed on the basis of post-construction inspection by the owner or operator and construction personnel. Any departures from design must be indicated on the as built maps. 2. Reserved. D. Records Required: An owner or operator of facilities in the public rights-of-way shall at all times maintain: 1. A full and complete set of plans, records, and “as built” maps showing the exact location of all equipment installed or in use in the city, exclusive of customer service drops. 2. A file showing its plan and timetable for future major construction of the facilities. E. Remote Site Visit: If any requested records, maps or plans, or other requested documents are too voluminous, or for security reasons cannot be copied and moved, then an owner or operator of facilities in the public rights-of-way may request that the inspection take place at some other location; provided, that the owner or operator must pay reasonable travel expenses incurred by the city in inspecting those documents or having those documents inspected by its designee, as charges incidental to the enforcing of the owner’s or operator’s franchise or other authorization for use of the public rights-of-way. (Ord. 2017-111 § 1 (part)). 12.20.190 Bond or letter of credit. No person shall install, erect, hang, lay, bury, draw, emplace, construct, reconstruct or operate any facility upon, across, beneath, or over any public right-of-way in the city or other city property until the owner or operator shall have filed with the city administrator a bond and/or letter of credit, in a form acceptable to the city, running in favor of the city, to guarantee the obligations of the owner or operator under this chapter and applicable law. The amount of the bond or letter of credit shall be no less than the reasonable cost of removal of the facilities and restoration of any affected public rights-of-way or other property pursuant to this chapter. (Ord. 2017-111 § 1 (part)). 12.20.200 Insurance. An owner or operator shall maintain insurance covering its facilities and operations in the public rights-of-way, as specified in a specific provision of this chapter or in its franchise agreement. Upon request, proof of such insurance shall be submitted to the city engineer prior to beginning any said work. (Ord. 2017-111 § 1 (part)). 12.20.210 Enforcement. A. Penalties: For violation of provisions of this chapter the city may seek fines in the amounts of $100 for a first offense within a year, $200 for a second offense within a year, and $300 for a third or subsequent offense within a year. The penalties shall be assessable against an owner or operator and shall be chargeable to its performance bond and/or letter of credit, at the city’s discretion. B. Injunctive Relief: In addition to any other remedies hereunder, the city may seek an injunction to mitigate or terminate a violation, or employ any other remedy available at law or equity, including, but not limited to, imposition of penalties pursuant to subsection A of this section. C. Timely Performance or Compliance: Any failure of the city to insist on timely performance or compliance by any person shall not constitute a waiver of the city’s right to later insist on timely performance or compliance by that person or any other person. D. Termination on Account of Certain Assignments or Appointments: 1. To the extent not prohibited by the United States bankruptcy code, a franchise under this chapter shall terminate automatically by force of law one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee (including a debtor in possession in a reorganization) to take over the business of the owner or operator, whether in bankruptcy or under a state law proceeding; provided, however, that such franchise shall not so terminate if, within that one hundred twenty (120) day period: a. Such assignment, receivership or trusteeship has been vacated; or b. Such assignee, receiver, or trustee has cured any defaults and has fully complied with the terms and conditions of this chapter and any applicable agreement and has executed an agreement, approved by any court having jurisdiction, under which it assumes and agrees to be bound by the terms and conditions of this chapter and any applicable agreement. c. In the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of an owner or operator of facilities in the public rights-of-way, its franchise under this chapter shall automatically terminate thirty (30) calendar days after such foreclosure or sale, unless: (1) The city has approved a transfer to the successful bidder; and (2) The successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions binding its predecessor. d. Any mortgage, pledge or lease of facilities in the public rights-of-way shall be subject and subordinate to the rights of the city under this chapter any applicable agreement, and other applicable law. 2. If a franchise under this chapter is terminated for any reason, the city may, at its discretion, require the grantee or permittee to remove its facilities from the public rights-of-way and to restore the public rights-of-way to their prior condition at the owner’s or operator’s expense, or that of their sureties. If an owner or operator whose franchise has been terminated fails, after reasonable notice from the city, to remove its facilities from the public rights-of-way, such facilities shall be deemed abandoned and ownership forfeited to the city.