ARTICLE VI.  CONSTRUCTION OF UTILITY FACILITIES
IN THE PUBLIC RIGHTS-OF-WAY

Enacted by Ordinance No. O-99-2, 1/18/99;

Amended in its entirety by Ordinance No. O-07-117, 11/19/07;

Ordinance No. O-17-13, 3/20/17

 

Sec. 17-601.    Purpose and Scope.  [back to top]

(A)       Purpose.  The purpose of this Article is to establish policies and procedures for constructing facilities on rights-of-way within the Village's jurisdiction, which will provide public benefit consistent with the preservation of the integrity, safe usage, and visual qualities of the Village rights-of-way and the Village as a whole.

(B)       Facilities Subject to this Article.  This Article applies to all facilities on, over, above, along, upon, under, across, or within the public rights-of-way within the jurisdiction of the Village, except as may be otherwise provided in any applicable franchise, license or similar agreement.

(C)       Franchises, Licenses, or Similar Agreements.  The Village, in its discretion and as limited by law, may require utilities to enter into a franchise, license or similar agreement for the privilege of locating their facilities on, over, above, along, upon, under, across, or within the Village rights-of-way.  In such an agreement, the Village may provide for terms and conditions inconsistent with this Article. Utilities that are not required by law to enter into such an agreement may request that the Village enter into such an agreement. 

(D)       Effect of Franchises, Licenses, or Similar Agreements.

(1)        Utilities Other Than Telecommunications Providers.  In the event that a utility other than a telecommunications provider has a franchise, license or similar agreement with the Village, such franchise, license or similar agreement shall govern and control during the term of such agreement and any lawful renewal or extension thereof.

(2)        Telecommunications Providers.  In the event of any conflict with, or inconsistency between, the provisions of this Article and the provisions of any franchise, license or similar agreement between the Village and any telecommunications provider, the provisions of such franchise, license or similar agreement shall govern and control during the during the term of such agreement and any lawful renewal or extension thereof. Application of the Village’s “Master License Agreement for Wireless and Pole Mounted Telecommunications Facilities Located within the Village Ways of the Village of Addison” per Ordinance No. _____ to a telecommunications provider shall only require review and approval by the Director of Public Works.  Any other proposed license agreement which differs from the Master License Agreement shall require separate approval by the Village Board of Trustees by ordinance.

(E)      Conflicts with Other Articles.  This Article supersedes all policies, resolutions, ordinances, or parts thereof adopted prior hereto that are in conflict herewith, to the extent of such conflict.

(F)       Conflicts with State and Federal Laws.  In the event that applicable federal or State laws or regulations conflict with the requirements of this Article, the utility shall comply with the requirements of this Article to the maximum extent possible without violating federal or State laws or regulations.

(G)       Sound Engineering Judgment.  The Village shall use sound engineering judgment when administering this Article and may vary the standards, conditions, and requirements expressed in this Article when the Village so determines.  Nothing herein shall be construed to limit the ability of the Village to regulate its rights-of-way for the protection of the public health, safety and welfare.

Sec. 17-602.    Definitions.  [back to top]

For purposes of this Article, unless the context clearly requires otherwise, the words and terms listed shall have the meanings ascribed to them in this Section.  Any term not defined in this Section shall have the meaning ascribed to it in 92 Ill. Adm. Code 530.30, unless the context clearly requires otherwise.

AASHTO means American Association of State Highway and Transportation Officials.

ANSI means American National Standards Institute.

Applicant means a person applying for a permit under this Article.

ASTM means American Society for Testing and Materials.

Backfill means the methods or materials for replacing excavated material in a trench or pit.

Bore or boring means to excavate an underground cylindrical cavity for the insertion of a pipe or electrical conductor.

Cable operator is that term as defined in 47 U.S.C. 522(5).

Cable service is that term as defined in 47 U.S.C. 522(6).

Cable system is that term as defined in 47 U.S.C. 522(7).

Carrier pipe means the pipe enclosing the liquid, gas or slurry to be transported.

Casing means a structural protective enclosure for transmittal devices such as carrier pipes, electrical conductors, and fiber optic devices.

Clear zone means the total roadside border area, starting at the edge of the pavement, available for safe use by errant vehicles.  This area shall consist of a shoulder, a recoverable slope, a nonrecoverable slope, and a clear run-out area.  The desired width is dependent upon the traffic volumes and speeds, and on the roadside geometry.  Distances are specified in the AASHTO Roadside Design Guide.

Coating means protective wrapping or mastic cover applied to buried pipe for protection against external corrosion.

Code means the codified ordinances of the Village of Addison.

Conductor means wire carrying electrical current.

Conduit means a casing or encasement for wires or cables.

Construction or construct means the installation, repair, maintenance, placement, alteration, enlargement, demolition, modification or abandonment in place of facilities.

Cover means the depth of earth or backfill over buried utility pipe or conductor.

Crossing facility means a facility that crosses one or more right-of-way lines of a right-of-way.

Director of Public Works means the Village Director of Public Works or his or her designee.

Disrupt the right-of-way, for the purposes of this Article, means any work that obstructs the right-of-way or causes a material adverse effect on the use of the right-of-way for its intended use.  Such work may include, without limitation, the following: excavating or other cutting; placement (whether temporary or permanent) of materials, equipment, devices, or structures; damage to vegetation; and compaction or loosening of the soil, and shall not include the parking of vehicles or equipment in a manner that does not materially obstruct the flow of traffic on a highway.

Emergency means any immediate maintenance to the facility required for the safety of the public using or in the vicinity of the right-of-way or immediate maintenance required for the health and safety of the general public served by the utility.

Encasement means provision of a protective casing.

Entity or person means any natural individual, firm, trust, estate, partnership, association, joint stock company, joint venture, corporation, limited liability company, state government, federal government, a unit of local government, or a receiver, trustee, guardian or other representative appointed by order of court, or any other legally recognized organization, whether for-profit or not-for-profit.  The Village shall not be considered a “Person” or “Entity."

Equipment means materials, tools, implements, supplies, and/or other items used to facilitate construction of facilities.

Excavation means the making of a hole or cavity by removing material or laying bare by digging.

Extra heavy pipe means pipe meeting ASTM standards for this pipe designation.

Facility means all structures, devices, objects, and materials (including track and rails, wires, ducts, fiber optic cable, communications and video cables and wires, poles, conduits, grates, covers, pipes, cables, personal wireless facilities and appurtenances thereto) located on, over, above, along, upon, under, across, or within rights-of-way under this Article, except those owned by the Village.

Freestanding facility means a ground-mounted facility over 25 cubic feet in size that is not a crossing facility, an overhead facility or a parallel facility, such as an antenna, transformer, pump, equipment enclosure, cabinet, or meter station.

Frontage road means roadway providing access to land adjacent to the highway where it is precluded by control of access on highway.

Hazardous material means any substance or material which, due to its quantity, form, concentration, location, or other characteristic, is determined by the Director of Public Works to pose an unreasonable and imminent risk to the life, health or safety of persons or property or to the ecological balance of the environment, including, but not limited to explosives, radioactive materials, petroleum or petroleum products or gases, poisons, etiology (biological) agents, flammables, corrosives or any substance determined to be hazardous or toxic under any federal or State law, statute or regulation.

Highway Code means the Illinois Highway Code, 605 ILCS 5/1-101 et seq., as amended from time to time.

Highway means a right-of-way used for vehicular traffic, including rural or urban roads or streets, whether classified as arterial, collector, minor or local.  Highway includes all highway land and improvements, including roadways, ditches and embankments, bridges, drainage structures, signs, guardrails, protective structures and appurtenances necessary or convenient for vehicle traffic.

Holder means a person or entity that has received authorization to offer or provide cable or video service from the ICC pursuant to the Illinois Cable and Video Competition Law, 220 ILCS 5/21-401.

IDOT means Illinois Department of Transportation.

ILCC means Illinois Commerce Commission.

Jacking means pushing a pipe horizontally under a roadway by mechanical means with or without boring.

Jetting means pushing a pipe through the earth using water under pressure to create a cavity ahead of the pipe.

Joint use means the use of pole lines, trenches or other facilities by two or more utilities.

J.U.L.I.E. means the Joint Utility Locating Information for Excavators utility notification program.

Light Standard means a raised source of electric light adjacent to a street or sidewalk.

Major intersection means the intersection of two or more arterial highways.

Occupancy means the presence of facilities on, over or under right-of-way.

Overhead facility means a facility that is mounted on a pole.

Parallel facility means a facility that is generally parallel or longitudinal to the centerline of a right-of-way.

Parkway means any portion of the right-of-way not improved by street or sidewalk.

Pavement cut means the removal of an area of pavement for access to facility or for the construction of a facility.

Permittee means that entity to which a permit has been issued pursuant to Sections 17-604 and 17-605 of this Article.

Personal Wireless Services means any technologies defined in 47 U.S.C. 332(c)(7) including commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, provided to personal mobile communication devices through wireless Facilities or any fixed mobile wireless services provided using personal wireless Facilities.

Personal Wireless Service Facilities means equipment at a fixed location that enables Personal Wireless Service between user equipment and a communications network, including but not limited to: (a) equipment associated with Personal Wireless Services such as private, broadcast and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul; and (b) Transmission Tower, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies and comparable equipment, regardless of technological configuration.

Practicable means that which is performable, feasible or possible, rather than that which is simply convenient.

Pressure means the internal force acting radially against the walls of a carrier pipe expressed in pounds per square inch gauge (psig).

Petroleum products pipelines means pipelines carrying crude or refined liquid petroleum products including, but not limited to, gasoline, distillates, propane, butane, or coal-slurry.

Prompt means that which is done within a period of time specified by the Village.  If no time period is specified, the period shall be 30 days.

Public entity means a legal entity that constitutes or is part of the government, whether at local, state or federal level.

Restoration means the repair of a right-of-way, highway, roadway, or other area disrupted by the construction of a facility to its original condition.

Right-of-way means any street, alley, other land or waterway, dedicated or commonly used for utility purposes, including utility easements in which the Village has the right and authority to authorize, regulate or permit the location of facilities other than those of the Village.  Right-of-way shall not include any real or personal Village property that is not specifically described in the previous two sentences and shall not include Village buildings, fixtures, and other structures or improvements, regardless of whether they are situated in the right-of-way.

Roadway means that part of the highway that includes the pavement and shoulders.

Sale of telecommunications at retail means the transmitting, supplying, or furnishing of telecommunications and all services rendered in connection therewith for a consideration, other than between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries, when the gross charge made by one such corporation to another such corporation is not greater than the gross charge paid to the retailer for their use or consumption and not for sale.

Security fund means that amount of security required pursuant to Section 17-610.

Shoulder means a width of roadway, adjacent to the pavement, providing lateral support to the pavement edge and providing an area for emergency vehicular stops and storage of snow removed from the pavement.

Sound engineering judgment means a decision(s) consistent with generally accepted engineering principles, practices and experience.

Telecommunications includes, but is not limited to, messages or information transmitted through use of local, toll and wide area telephone service, channel services, telegraph services, teletypewriter service, computer exchange service, private line services, mobile radio services, cellular mobile telecommunications services, personal wireless services, stationary two-way radio, paging service and any other form of mobile or portable one-way or two-way communications, and any other transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite, or similar facilities  "Private line" means a dedicated non-traffic sensitive service for a single customer that entitles the customer to exclusive or priority use of a communications channel, or a group of such channels, from one or more specified locations to one or more other specified locations.  "Telecommunications" shall not include value added services in which computer processing applications are used to act on the form, content, code and protocol of the information for purposes other than transmission.  "Telecommunications" shall not include the provision of cable services through a cable system as defined in the Cable Communications Act of 1984 (47 U.S.C. Sections 521 and following), as now or hereafter amended, or cable or other programming services subject to an open video system fee payable to the Village through an open video system as defined in the Rules of the Federal Communications Commission (47 C.F.R. 76.1500 and following), as now or hereafter amended.

Telecommunications provider means any person that installs, owns, operates or controls facilities in the public right-of-way used or designed to be used to transmit telecommunications in any form.

Telecommunications retailer means and includes every person engaged in making sales of telecommunications at retail as defined herein.

Trench means a relatively narrow open excavation for the installation of an underground facility.

Utility means any person or entity owning or operating any facility, as defined in this Article.

Vent means a pipe to allow the dissipation into the atmosphere of gases or vapors from an underground casing.

Video service is that term as defined in section 21-201(v) of the Illinois Cable and Video Competition Law of 2007, 220 ILCS 21-201(v).

Village means the Village of Addison.

Village standards means any codes, ordinances or regulations of the Village which are applicable to construction of utility facilities in Village rights-of-way.

Water lines means pipelines carrying raw or potable water.

Wet boring means boring using water under pressure at the cutting auger to soften the earth and to provide a sluice for the excavated material.

Sec. 17-603.    Annual Registration Required.  [back to top]

Every utility that occupies right-of-way within the Village 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 telecopy numbers, the name of one or more contact persons who can act on behalf of the utility in connection with emergencies involving the utility's facilities in the right-of-way and a 24-hour telephone number for each such person and evidence of insurance as required in Section 17-608 of this Article, in the form of a certificate of insurance.

Sec. 17-604.    Permit Required; Applications and Fees.  [back to top]

(A)       Permit Required.  No person shall construct (as defined in this Article) any facility on, over, above, along, upon, under, across, or within any Village right-of-way which (1) changes the location of the facility, (2) adds a new facility, (3) disrupts the right-of-way (as defined in this Article), or (4) materially increases the amount of area or space occupied by the facility on, over, above, along, under across or within the right-of-way, without first filing an application with the Director of Public Works and obtaining a permit from the Village therefor, except as otherwise provided in this Article.  No permit shall be required for installation and maintenance of service connections to customers' premises where there will be no disruption of the right-of-way.

(B)       Permit Application.  All applications for permits pursuant to this Article shall be filed on a form provided by the Village and shall be filed in such number of duplicate copies as the Village may designate.  The applicant may designate those portions of its application materials that it reasonably believes contain proprietary or confidential information as proprietary or confidential by clearly marking each page of such materials accordingly.

(C)      Minimum General Application Requirements.  The application shall be made by the utility or its duly authorized representative and shall contain, at a minimum, the following:

(1)        The utility's name and address and telephone and telecopy numbers;

(2)        The applicant's name and address, if different than the utility, its telephone, telecopy numbers, e-mail address, and its interest in the work;

(3)        The names, addresses and telephone and telecopy numbers and e-mail addresses of all professional consultants, if any, advising the applicant with respect to the application;

(4)        A description of the proposed work and the purposes and intent of the facility and the uses to which the facility will be put.  The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, as determined by the Director of Public Works, with special emphasis on those matters likely to be affected or impacted by the work proposed;

(5)        Evidence that the utility has placed on file with the Village:

(a)        A written traffic control plan demonstrating the protective measures and devices that will be employed consistent with the Illinois Manual on Uniform Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic; and

(b)        An emergency contingency plan which shall specify the nature of potential emergencies, including, without limitation, construction and hazardous materials emergencies, and the intended response by the applicant.  The intended response shall include notification to the Village and shall promote protection of the safety and convenience of the public.  Compliance with ILCC regulations for emergency contingency plans constitutes compliance with this Section unless the Village finds that additional information or assurances are needed;

(6)        Drawings, plans and specifications showing the work proposed, including the certification of an engineer that such drawings, plans, and specifications comply with applicable codes, rules, and regulations;

(7)        Evidence of insurance as required in Section 17-608 of this Article;

(8)        Evidence of posting of the security fund as required in Section 17-610 of this Article;

(9)        Any request for a variance from one or more provisions of this Article (see, Section 17-621); and

(10)      Such additional information as may be reasonably required by the Village.

(D)       Supplemental Application Requirements for Specific Types of Utilities.  In addition to the requirements of Subsection (C) of this Section, the permit application shall include the following items as applicable to the specific utility that is the subject of the permit application:

(1)        In the case of the installation of new electric power, communications or natural gas distribution system installation, evidence that any "Certificate of Public Convenience and Necessity" or other regulatory authorization  that the applicant is required by law to obtain, or that the applicant has elected to obtain, has been issued by the ICC or other jurisdictional authority;

(2)        In the case of natural gas systems, state the proposed pipe size, design, construction class, and operating pressures;

(3)        In the case of water lines, indicate that all requirements of the Illinois Environmental Protection Agency, Division of Public Water Supplies, have been satisfied;

(4)        In the case of sewer line installations, indicate that the land and water pollution requirements of the Illinois Environmental Protection Agency, Division of Water Pollution Control and the Metropolitan Water Reclamation District and other local or state entities with jurisdiction, have been satisfied; or 

(5)        In the case of petroleum products pipelines, state the type or types of petroleum products, pipe size, maximum working pressure, and the design standard to be followed.

(E)       Applicant's Duty to Update Information.  Throughout the entire permit application review period and the construction period authorized by the permit, any amendments to information contained in a permit application shall be submitted by the utility in writing to the Village within thirty (30) days after the change necessitating the amendment.

(F)       Application Fees.  Unless otherwise provided by franchise, license, or similar agreement, all applications for permits pursuant to this Article shall be accompanied by a fee in the amount of $250.00.  No application fee is required to be paid by any electric or telecommunications utility that is paying the municipal infrastructure maintenance fee pursuant to the Telecommunications Infrastructure Maintenance Fee Act. (35 ILCS 635/1 et seq.) or the Electricity Infrastructure Maintenance Fee Act 35 ILCS 645/1 et seq.).

G)        Permit Prohibitions.

(1)       No portion or part of any Above Ground Service Facility shall be installed over a potable water line, sanitary sewer line, storm water sewer line, underground natural gas line, or underground electrical conduit unless engineering means are approved by the Village Engineer and installed to provide adequate access to the lines for inspection, repairs or emergency access.  Any applicant for a permit for an Above Ground Service Facility will use reasonable engineering methods to design the location of the Above Ground Service Facility not less than five (5) feet from any existing underground potable waterline, sanitary sewer line, storm water sewer line, underground gas line or underground electrical conduit and so as to minimize the probability that the Above Ground Service Facility will subside or cause soils in the area of the line to collapse if the ground is operated to access the line.  Distances of less than five (5) feet may be authorized by the Village Engineer where he determines that the Above Ground Service Facility has been engineered so as to not create an unreasonable risk of harm to the underground lines.

(2)        No Facility shall be installed underground where there is inadequate space to permit access maintenance and replacement of existing underground utilities or Facilities or where the placement of an above ground Facility threatens the pedestrian or vehicular safety.

(3)        No Transmission Tower used to support Personal Wireless Service Facilities shall be permitted in any Public Way.

(4)        Personal Wireless Service Facilities may be located on an existing Utility Pole or Light Standard that is within the Public Way.  Personal Wireless Service Facilities shall comply with Above Ground Service Facilities requirements as set forth herein and subject to the following:

(i)       The addition of said Personal Wireless Service Facilities does not exceed more than seven (7) feet above the height of the existing Utility Pole to which it is attached.

(ii)       No guy or other support wires shall be used in connection with such Personal Wireless Service Facilities.

(iii)      Personal Wireless Service Facilities antenna and related equipment shall not exceed four (4) square feet in antenna surface area or four (4) feet in any dimension.

(iv)      Replacement Utility Poles can be placed at the same height as the existing Utility Pole to accommodate Personal Wireless Service Facilities.

(v)       Personal Wireless Service Facilities, including antenna and related equipment shall be a color that blends with the surroundings of the existing Utility Pole on which it is mounted.  Any wiring on the Utility Pole must be covered with an appropriate cover or cable shield.

(vi)       Not more than one Personal Wireless Service Facility may be located on an existing single Utility Pole.

(vii)      No Personal Wireless Facility shall be installed within five hundred (500) feet of an existing Personal Wireless Facility.

(viii)     Facilities mounted on an existing Utility Pole of a current franchisee or licensee with the written permission of the franchisee or licensee, regardless of the terms and conditions of any existing franchise or license agreement between the Village and a franchisee or a licensee are permitted so long as the owner of the Facilities has entered into a Master License Agreement as required by this Article and secured a site specific permit under the terms and conditions of the Master License Agreement, and shall submit its written agreement with the franchisee or licensee, which owns the existing Utility Pole as part of its specific permit application.

Sec. 17-605.    Action on Permit Applications.  [back to top]

(A)       Village Review of Permit Applications.  Completed permit applications, containing all required documentation, shall be examined by the Director of Public Works within a reasonable time after filing.  If the application does not conform to the requirements of all applicable ordinances, codes, laws, rules, and regulations, the Director of Public Works shall reject such application in writing, stating the reasons therefor.  If the Director of Public Works is satisfied that the proposed work conforms to the requirements of this Article and all applicable ordinances, codes, laws, rules, and regulations, the Director of Public Works shall issue a permit therefor as soon as practicable.  In all instances, it shall be the duty of the applicant to demonstrate, to the satisfaction of the Village Director of Public Works that the construction proposed under the application shall be in full compliance with the requirements of this Article.

(B)       Additional Village Review of Applications of Telecommunications Retailers.

(1)        Pursuant to Section 4 of the Telephone Company Act, 220 ILCS 65/4, a telecommunications retailer shall notify the Village that it intends to commence work governed by this Article for facilities for the provision of telecommunications services.  Such notice shall consist of plans, specifications, and other documentation sufficient to demonstrate the purpose and intent of the facilities and shall be provided by the telecommunications retailer to the Village not less than ten (10) days prior to the commencement of work requiring no excavation and not less than thirty (30) days prior to the commencement of work requiring excavation.  The Director of Public Works shall specify the portion of the right-of-way upon which the facility may be placed, used and constructed.

(2)        In the event that the Director of Public Works fails to provide such specification of location to the telecommunications retailer within either (a) ten (10) days after service of notice to the Village by the telecommunications retailer in the case of work not involving excavation for new construction or (b) twenty-five (25) days after service of notice by the telecommunications retailer in the case of work involving excavation for new construction, the telecommunications retailer may commence work without obtaining a permit under this Article.

(3)        Upon the provision of such specification by the Village, where a permit is required for work pursuant to Section 17-604 of this Article, the telecommunications retailer shall submit to the Village an application for a permit and any and all plans, specifications and documentation available regarding the facility to be constructed.  Such application shall be subject to the requirements of Subsection (A) of this Section.

(C)       Additional Village Review of Applications of Holders of State Authorization under the Cable and Video Completion Law of 2007.  Applications by a utility that is a holder of a State-issued authorization under the Cable and Video Competition Law of 2007 shall be deemed granted forty-five (45) days after submission to the Village, unless otherwise acted upon by the Village, provided the holder has complied with applicable Village codes, ordinances, and regulations.

Sec. 17-606.    Effect of Permit.  [back to top]

(A)       Authority Granted, No Property Right or Other Interest Created.  A permit from the Village authorizes a permittee to undertake only certain activities in accordance with this Article on Village rights-of-way and does not create a property right or grant authority to the permittee to impinge upon the rights of others who may have an interest in the public rights-of-way.

(B)       Duration.  No permit issued under this Article shall be valid for a period longer than six (6) months unless construction is actually begun within that period and is thereafter diligently pursued to completion.

(C)       Preconstruction meeting required.  No construction shall begin pursuant to a permit issued under this Article prior to attendance by the permittee and all major contractors and subcontractors who will perform any work under the permit at a preconstruction meeting.  The preconstruction meeting shall be held at a date, time and place designated by the Village, with such Village representatives in attendance as the Village deems necessary.  The meeting shall be for the purpose of reviewing the work under the permit, and reviewing special considerations necessary in the areas where work will occur, including, without limitation, presence or absence of other utility facilities in the area and their locations, procedures to avoid disruption of other utilities, use of rights-of-way by the public during construction, and access and egress by adjacent property owners.

(D)       Compliance with All Laws Required.  The issuance of a permit by the Village does not excuse the permittee from complying with other requirements of the Village Code and all applicable statutes, laws, ordinances, rules, regulations, including but not limited to, the Addison Zoning Ordinance, as now existing or hereafter amended.

Sec. 17-607.    Revised Permit Drawings.  [back to top]

In the event the actual locations of any facilities deviate in any material respect from the locations identified in the plans, drawings and specifications submitted with the permit application, the permittee shall submit a revised set of drawings or plans to the Village within ninety (90) days after the completion of the permitted work.  The revised drawings or plans shall specifically identify where the locations of the actual facilities deviate from the locations approved in the permit.  If any deviation from the permit also deviates from the requirements of this Article, it shall be treated as a request for variance in accordance with Section 17-621 of this Article.  If the Village denies the request for a variance, then the permittee shall either remove the facility from the right-of-way or modify the facility so that it conforms to the permit and submit revised drawings or plans therefor.

Sec. 17-608.    Insurance.  [back to top]

(A)       Required Coverages and Limits.  Unless otherwise provided by franchise, license, or similar agreement, each utility occupying right-of-way or constructing any facility in the right-of-way shall secure and maintain the following liability insurance policies insuring the utility as named insured and naming the Village and its elected and appointed officers, officials, agents, and employees as additional insureds on the policies listed in paragraphs (1) and (2) below. 

(1)        Commercial general liability insurance, including premises-operations, explosion, collapse, and underground hazard (commonly referred to as "X," "C," and "U" coverages) and products-completed operations coverage with limits not less than 

(a)        Five million dollars ($5,000,000) for bodily injury or death to each person;

(b)        Five million dollars ($5,000,000) for property damage resulting from any one accident; and

(c)        Five million dollars ($5,000,000) for all other types of liability;

(2)        Automobile liability for owned, non-owned and hired vehicles with a combined single limit of one million dollars ($1,000,000) for personal injury and property damage for each accident;

(3)        Worker's compensation with statutory limits; and

(4)        Employer's liability insurance with limits of not less than one million dollars ($1,000,000) per employee and per accident.

If the utility is not providing such insurance to protect the contractors and subcontractors performing the work, then such contractors and subcontractors shall comply with this Section.

(B)       Excess or Umbrella Policies.  The coverages required by this Section may be in any combination of primary, excess, and umbrella policies.  Any excess or umbrella policy must provide excess coverage over underlying insurance on a following-form basis such that when any loss covered by the primary policy exceeds the limits under the primary policy, the excess or umbrella policy becomes effective to cover such loss.

(C)       Copies Required.  The utility shall provide copies of any of the policies required by this Section to the Village within ten (10) days following receipt of a written request therefor from the Village.

(D)       Maintenance and Renewal of Required Coverages.  The insurance policies required by this Section shall contain the following endorsement:

"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the Village, by registered mail or certified mail, return receipt requested, of a written notice addressed to the Village Manager of such intent to cancel or not to renew."

Within ten (10) days after receipt by the Village of said notice, and in no event later than ten (10) days prior to said cancellation, the utility shall obtain and furnish to the Village evidence of replacement insurance policies meeting the requirements of this Section.

(E)       Self-Insurance.  A utility may self-insure all or a portion of the insurance coverage and limit requirements required by Subsection (A) of this Section.  A utility that self-insures is not required, to the extent of such self-insurance, to comply with the requirement for the naming of additional insureds under Subsection (A) or the requirements of Subsections (B), (C) and (D) of this Section.  A utility that elects to self-insure shall provide to the Village evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit requirements required under Subsection (A) of this Section, such as evidence that the utility is a "private self insurer" under the Workers Compensation Act.  Self-insurance shall be primary, and any Village policies of insurance shall be deemed secondary.

(F)       Effect of Insurance and Self-Insurance on Utility' s Liability.  The legal liability of the utility to the Village and any person for any of the matters that are the subject of the insurance policies or self-insurance required by this Section shall not be limited by such insurance policies or self-insurance or by the recovery of any amounts thereunder.

(G)       Insurance Companies.  All insurance provided pursuant to this section shall be effected under valid and enforceable policies, issued by insurers legally able to conduct business with the licensee in the State of Illinois.  All insurance carriers and surplus line carriers shall be rated "A-" or better and of a class size "X" or higher by A.M. Best Company.

Sec. 17-609.    Indemnification.  [back to top]

By occupying or constructing facilities in the right-of-way, a utility shall be deemed to agree to defend, indemnify and hold the Village and its elected and appointed officials and officers, employees, agents and representatives harmless from and against any and all injuries, claims, demands, judgments, damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the utility or its affiliates, officers, employees, agents, contractors or subcontractors in the construction of facilities or occupancy of the rights-of-way, and in providing or offering service over the facilities, whether such acts or omissions are authorized, allowed or prohibited by this Article or by a franchise, license, or similar agreement; provided, however, that the utility's indemnity obligations hereunder shall not apply to any injuries, claims, demands, judgments, damages, losses or expenses arising out of or resulting from the negligence, misconduct or breach of this Article by the Village, its officials, officers, employees, agents or representatives.

17-610.            Security.  [back to top]

(A)       Purpose.  The permittee shall establish a Security Fund in a form and in an amount as set forth in this Section.  The Security Fund shall be continuously maintained in accordance with this Section at the permittee's sole cost and expense until the completion of the work authorized under the permit.  The Security Fund shall serve as security for:

(1)        The faithful performance by the permittee of all the requirements of this Article;

(2)        Any expenditure, damage, or loss incurred by the Village occasioned by the permittee's failure to comply with any codes, rules, regulations, orders, permits and other directives of the Village issued pursuant to this Article; and

(3)        The payment by permittee of all liens and all damages, claims, costs, or expenses that the Village may pay or incur by reason of any action or nonperformance by permittee in violation of this Article including, without limitation, any damage to public property or restoration work the permittee is required by this Article to perform that the Village must perform itself or have completed as a  consequence solely of the  permittee's failure to perform or complete, and all other payments due the Village from the permittee pursuant to this Article or any other applicable law.

(B)       Form.  The permittee shall provide the Security Fund to the Village in the form, at the permittee's election, of cash, a surety bond in a form acceptable to the Village, or an unconditional letter of credit in a form acceptable to the Village.    Any surety bond or letter of credit provided pursuant to this subsection shall, at a minimum:

(1)        Provide that it will not be canceled without prior notice to the Village and the permittee.

(2)        Not require the consent of the permittee prior to the collection by the Village of any amounts covered by it; and

(3)        Provide a location convenient to the Village and within the State of Illinois at which it can be drawn.

(C)       Amount.  The dollar amount of the Security Fund shall be sufficient to provide for the reasonably estimated cost to restore the right-of-way to at least as good a condition as that existing prior to the construction under the permit, as determined by the Director of Public Works, and may also include reasonable, directly related costs that the Village estimates are likely to be incurred if the permittee fails to perform such restoration.  Where the construction of facilities proposed under the permit will be performed in phases in multiple locations in the Village, with each phase consisting of construction of facilities in one location or a related group of locations, and where construction in another phase will not be undertaken prior to substantial completion of restoration in the previous phase or phases, the Director of Public Works may, in the exercise of sound discretion, allow the permittee to post a single amount of security which shall be applicable to each phase of the construction under the permit.  The amount of the Security Fund for phased construction shall be equal to the greatest amount that would have been required under the provisions of this Subsection (C) for any single phase.

(D)       Withdrawals.  The Village, upon fourteen (14) days' advance written notice clearly stating the reason for, and its intention to exercise withdrawal rights under this Subsection, may withdraw an amount from the Security Fund if the fund is a Cash Security Fund, provided that the permittee has not reimbursed the Village for such amount within the fourteen (14) day notice period.  Withdrawals may be made if the permittee:

(1)        Fails to make any payment required to be made by the permittee hereunder;

(2)        Fails to pay any liens relating to the facilities that are due and unpaid;

(3)        Fails to reimburse the Village for any damages, claims, costs or expenses which the Village has been compelled to pay or incur by reason of any action or non-performance by the permittee; or

(4)        Fails to comply with any provision of this Article that the Village determines can be remedied by an expenditure of an amount in the Security Fund.

(E)       Replenishment.  Within fourteen (14) days after receipt of written notice from the Village that any amount has been withdrawn from the Cash Security Fund, the permittee shall restore the Cash Security Fund to the amount specified in Subsection (C) of this Section.

(F)       Interest.  The permittee may request that any and all interest accrued on the amount in the Cash Security Fund be returned to the permittee by the Village, upon written request for said withdrawal to the Village, provided that any such withdrawal does not reduce the Cash Security Fund below the minimum balance required in Subsection (C) of this Section.

(G)       Closing and Return of Security Fund.  Upon completion of the work authorized under the permit, the permittee shall be entitled to the return of the Cash Security Fund, or such portion thereof as remains on deposit, within a reasonable time after account is taken for all offsets necessary to compensate the Village for failure by the permittee to comply with any provisions of this Article or other applicable law.  In the event of any revocation of the permit, the Cash Security Fund, and any and all accrued interest therein, shall become the property of the Village to the extent necessary to cover any reasonable costs, loss or damage incurred by the Village as a result of said revocation, provided that any amounts in excess of said costs, loss or damage shall be refunded to the permittee.

(H)       Rights Not Limited.  The rights reserved to the Village with respect to the Security Fund are in addition to all other rights of the Village, whether reserved by this Article or otherwise authorized by law, and no action, proceeding or exercise of right with respect to said Security Fund shall affect any other right the Village may have.  Notwithstanding the foregoing, the Village shall not be entitled to a double monetary recovery with respect to any of its rights which may be infringed or otherwise violated.

 

   

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