(A) Any utility company, or its contractor, that disrupts, excavates, bores or cuts into the surface, sub-grade, or other portion of any city street or curb, which has been replaced or repaired under the street replacement and repair program within the 15 years immediately preceding the date the utility company applies for its permit under § 93.25, shall conduct a complete reconstruction, as that term is defined in § 93.10, of the street segment, as that term is defined in § 93.10. Any permit granted under this section shall require such reconstruction of the street segment, unless a waiver is granted as provided in division (C) of this section. The reconstruction shall occur and be completed within 365 days of the disruption, excavation, boring or cutting into the surface. Notwithstanding the foregoing, this division shall not apply if:
(1) The utility company participated, as that term is defined in § 93.10, in the repair or replacement of the portion of the street proposed to be disrupted, excavated, bored or cut by the utility company, or its contractor, when the city reconstructed or repaired that portion of the street; and
(2) The disruption, excavation, boring or cutting into the surface, sub-grade, or other portion of any city street or curb is necessitated by good engineering practice, as determined at the sole discretion of the Director of Public Works, who may rely on an opinion issued by a Kentucky-licensed engineer.
(B) (1) Waivers to division (A) or any of its requirements, or waivers with conditions, may be granted by the City Administrative Officer, or, in the absence of the Citv Administrative Officer, the Public Works Director, upon the recommendation and advice of a City Engineer, who shall consider the following in determining whether to grant the waiver:
(a) The amount of time that will lapse prior to the next repair or replacement of the street segment in question by the city under the street replacement and repair program;
(b) Whether the City Engineer believes or has issued an opinion regarding whether the waiver will not result in the shortening of the lifespan of the street segment in question or otherwise cause harm to the city;
(c) Whether unique topography or engineering factors justify the granting of the waiver;
(d) The furtherance of the goals of this chapter are met through the granting of a waiver, including whether the repair or replacement of the street was foreseeable by the utility company during the last road reconstruction or repair by the city under the street replacement and repair program; and
(e) The hardship to the applicant in light of the goals of this chapter.
(2) No waiver may be granted until the City Engineer is consulted and renders an opinion.
(3) Requests for waivers shall be in writing and delivered to the City Clerk, and shall be submitted, except in cases of emergency, prior to the disruption, excavation, or cutting into the surface, sub-grade, or other portion of any city street, curb or sidewalk.
(4) Any appeals to waiver determinations shall be made to the Mayor, by delivering a notice of appeal to the City Clerk, in writing, within seven calendar days of the original determination. The Mayor shall hold a hearing on the appeal within 30 days of the city's receipt of the appeal and issue a decision thereon within seven days of the hearing.
(5) Further appeal may be had to the Circuit Court, by filing a notice of appeal and complaint within 14 days after the Mayor's determination, which shall be limited to a review of the record before the Mayor, and a determination as to whether the Mayor abused his discretion and acted in an arbitrary and capricious manner.
(C) If the Director of Public Works, after consulting with the City Engineer, determines that any sidewalk or driveway located in a street segment being reconstructed or restored by a utility company requires repair as part of the utility company's project, then the utility company shall perform such work consistent with the specifications set forth in City of Fort Mitchell Typical Detail Nos. 10, 11, 12, 13, 14 and 15. as applicable, which details are attached to Ordinance 2013-28 and incorporated herein by reference.
(D) All restoration work related to the permit shall be completed in a prompt and expeditious manner to minimize the amount of time any portion of the public right-of-way area is disturbed. If permanent restoration, in accordance with specifications as defined herein, does not occur immediately upon completion of work, the permit holder shall be required to complete temporary restoration of all disturbed area in accordance with city specifications. All permanent restoration work shall be completed within 30 days from the date of the permit’s issuance, or promptly upon completion of the work, whichever is later, during the time period of April 1 through November 30. During the time period of December 1 through March 31, permanent restoration shall be completed in a timely manner, subject to appropriate weather conditions. A final inspection of all permanent restoration work is required by the Public Works Director or a designee.
(E) No person in control shall cause, permit, or allow any violation of divisions (A), (C) or (D) of this section. No person in control, having received notice by the city of a violation of division (A), (C) or (D) of this section shall fail to correct the violation within 30 days of notice, or, if reconstruction is involved, shall fail to cause the reconstruction to occur within 365 days of that notice. Notice under this division is valid if sent by ordinary U.S. mail, certified mail, facsimile, or electronic mail.
(Ord. 2005-02, passed 3-21-05; Am. Ord. 2013-28, passed 10-7-13) Penalty, see § 93.99