1149.13 ENFORCEMENT OF PERMIT OBLIGATION.
(a) Mandatory Denial of Permit. Except in the case of an Emergency, no Permit will be granted:
(1) To any Person who has not yet made an Application;
(2) To any Person who has outstanding debt owed to the City unless payment in full has been placed in an escrow account approved by the City Auditor;
(3) To any Person as to whom there exists grounds for the revocation of a Permit; or
(4) If, in the discretion of the Service Director, the issuance of a Permit for the particular date and/or time would cause a conflict or interfere with an exhibition, celebration, festival, or any other event. The Service Director, in exercising this discretion, shall be guided by the safety and convenience of ordinary travel of the public over the Right-Of-Way, and by considerations relating to the public health, safety and welfare.
(b) Permissive Denial of Permit. The Service Director may deny a Permit in order to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the Right-Of-Way, or when necessary to protect the Right-Of-Way and its users.
(1) The Service Director, in his/her discretion, may consider one or more of the following factors:
A. The extent to which Right-Of-Way space where the Permit is sought is available;
B. The competing demands for the particular space in the Right-Of-Way;
C. The availability of other locations in the Right-Of-Way or in another Right-Of-Way for the proposed Facilities;
D. The applicability of Chapter 1149 or other regulations of the Right-Of-Way that affect location of Facilities in the Right-Of-Way;
E. The degree of compliance of the Permittee with the terms and conditions of its Right-Of-Way Occupancy Permit, Chapter 1149, and other applicable ordinances and regulations;
F. The degree of disruption to surrounding communities and businesses that will result from the use of that part of the Right-Of-Way;
G. The condition and age of the Right-Of-Way, and whether and when it is scheduled for total or partial re-construction;
H. The balancing of the costs of disruption to the public and damage to the Right-Of-Way, against the benefits to that part of the public served by the expansion into additional parts of the Right-Of-Way; or,
I. Whether such Applicant or its agent has failed within the past three (3) years to comply, or is presently not in full compliance with, the requirements of Chapter 1149 or, if applicable, any other Law.
(2) Under no circumstances will open cutting take place on a newly constructed street within twenty-four (24) months after construction completion or a newly reconstructed street within twenty-four (24) months of reconstruction completion, except where:
A. An Emergency situation requires that an open cut is necessary;
B. Vital services to resident(s) or business(es) are needed or have been cut off and there is no reasonable alternative (such as jacking or boring) in supplying or restoring such services; or
C. The Service Director determines it is in the best interests of the City that such an open cut take place.
(c) Discretionary Issuance of Permit.
A. To prevent substantial economic hardship to a customer of the Permit Applicant, if established by Credible evidence satisfactory to the City;
B. To allow such customer to materially improve its Service; or
C. To allow a new economic development project to be granted a Permit under this section.
(2) To be granted a Permit under this Section, the Permit Applicant must not have had knowledge of the hardship, the plans for improvement of Service, or the development project when it was required to submit its list of next year projects.
(d) Work Done Without a Permit in Emergency Situations.
(1) Each Permittee shall, as soon as is practicable, immediately notify the Service Director of any event regarding its Facilities which it considers to be an Emergency. The Permittee may proceed to take whatever actions are necessary in order to respond to the Emergency. Within five (5) business days, unless otherwise extended by the Service Director, after the occurrence or discovery of the Emergency (whichever is later), the Permittee shall apply for the necessary Permits, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with Chapter 1149 for any and all actions taken in response to the Emergency. In the event that the City becomes aware of an Emergency regarding a Permittee's Facilities, the City shall use Best Efforts to contact the Permittee or the Representative of each Permittee affected, or potentially affected, by the Emergency. In any event, the City may take whatever action it deems necessary in order to respond to the Emergency, the cost of which shall be borne by the Permittee whose Facilities caused the Emergency.
(2) Except in the case of an Emergency, any Permittee who Constructs in, on, above, within, over, below or through a Right-Of-Way without a· valid Permit must subsequently obtain a Permit, pay double the normal fee for said Permit, pay double all the other fees required by the Code, deposit with the City the fees necessary to correct any damage to the Right-Of-Way and comply with all of the requirements of Chapter 1149.
(e) Revocation of Permits.
(1) Permittees hold Permits issued pursuant to the Code as a privilege and not as a right. The City reserves its right, as provided herein, to revoke any Permit, without refunding any fees, in the event of a substantial breach of the terms and conditions of any Law, or any provision or condition of the Permit. A substantial breach by Permittee shall include, but shall not be limited to, any of the following:
A. The violation of any provision or condition of the Permit;
B. An evasion or attempt to evade any provision or condition of the Permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens;
C. Any material misrepresentation of fact in the Application for a Permit;
D. The failure to maintain the required Construction or Removal Bonds and /or insurance;
E. The failure to obtain and/or maintain, when required, a Right-Of-Way Occupancy Permit;
F. The failure to complete the Construction in a timely manner; or
(2) If the Service Director determines that the Permittee has committed a substantial breach of a term or condition of any Law or any condition of the Permit, the Service Director shall serve a written demand upon the Permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the Permit. Upon a substantial breach, as stated above, the Service Director may place additional or revised conditions on the Permit.
(3) By the close of the second business day following receipt of notification of the breach, Permittee shall contact the Service Director with a plan, acceptable to the Service Director, for its correction. Permittee's failure to so contact the Service Director, or the Permittee's failure to submit an acceptable plan, or Permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the Permit.
(4) If a Permittee commits a second substantial default as outlined above, Permittee's Permit will automatically be revoked, and the Permittee will not be allowed further Permits for up to and including one (1) full year, except for Emergency repairs.
(5) If a Permit is revoked, the Permittee shall also reimburse the City for the City's reasonable costs, including Restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation. (Ord. 11-22. Passed 2-7-22.)