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CITY OF MONTGOMERY, OHIO CODE OF ORDINANCES
DIRECTORY OF OFFICIALS (2023)
ADOPTING ORDINANCE
CHARTER TABLE OF CONTENTS
TITLE I: GENERAL PROVISIONS
TITLE III: ADMINISTRATION
TITLE V: PUBLIC WORKS AND PROPERTIES
TITLE VII: TRAFFIC CODE
TITLE IX: GENERAL REGULATIONS
TITLE XI: BUSINESS REGULATIONS
TITLE XIII: GENERAL OFFENSES
TITLE XV: LAND USAGE
TABLE OF SPECIAL ORDINANCES
PARALLEL REFERENCES
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§ 51.13 TERMINATION OF CERTIFICATE OF REGISTRATION.
   (A)   The Public Works Director shall give written notice of default to a provider if it is determined that a provider has:
      (1)   Violated any material provision or requirement of the issuance or acceptance of a certificate of registration or any law of the city, state, or federal government; or
      (2)   Attempted to evade any provision or requirement of the issuance of a certificate of registration or the acceptance of it; or
      (3)   Practiced any fraud or deceit upon city; or
      (4)   Made a material misrepresentation of fact in its application for a certificate of registration.
   (B)   If a provider fails to cure a default within 30 calendar days after such notice is served by the city then such default shall be a material breach and city may exercise any remedies or rights it has at law or in equity to terminate the certificate of registration. If the Public Works Director decides there is cause or reason to terminate, the following procedure shall be followed:
      (1)   City shall serve a provider with a written notice of the reason or cause for proposed termination and shall allow a provider a minimum of 15 calendar days to cure its breach.
      (2)   If the provider fails to cure within 15 calendar days, the Public Works Director may declare the certificate of registration terminated.
      (3)   The provider shall have 15 calendar days to appeal the termination to the Board of Review by filing a request for appeal with the Office of the Clerk of Council. All such appeals shall be in writing. If the Board of Review determines there was not a breach, then the Board of Review shall overturn the decision of the Public Works Director. Otherwise, the Board of Review shall affirm the decision of the Public Works Director to terminate. The determination of the Board of Review shall be a final administrative decision appealable as provided in the Ohio Revised Code for administrative decisions.
(Ord. 10-2001, passed 9-5-01) Penalty, see § 51.99
§ 51.14 UNAUTHORIZED USE OF PUBLIC RIGHTS-OF-WAY.
   (A)   No person shall use the rights-of-way to operate a system that has not been authorized by the city in accordance with the terms of this chapter and been issued a certificate of registration.
   (B)   No provider shall place or have placed any facilities in, on, above, within, over, below, under, or through the rights-of-way, unless allowed under this chapter or having been issued a certificate of registration.
   (C)   Each and every unauthorized use shall be deemed to be a violation and a distinct and separate offense. Each and every day any violation of this chapter continues shall constitute a distinct and separate offense.
   (D)   No person shall fail to comply with the provisions of this chapter. Each and every failure to comply shall be deemed a distinct and separate offense. Each and every day any violation of this chapter continues shall constitute a distinct and separate offense.
(Ord. 10-2001, passed 9-5-01) Penalty, see § 51.99
§ 51.15 PEG REQUIREMENTS FOR OPEN VIDEO SYSTEMS.
   Any provider that receives a certificate from the FCC to provide open video services in the city shall notify the city of such certification. Any provider that operates an open video system shall comply with all applicable laws and FCC rules and regulations including those regarding support for public, educational, and governmental access ("PEG").
(Ord. 10-2001, passed 9-5-01) Penalty, see § 51.99
§ 51.16 ASSIGNMENT OR TRANSFER OF OWNERSHIP AND RENEWAL.
   (A)   Assignment of transfer approval required. A certificate of registration shall not be assigned or transferred, either in whole or in part, without requesting the consent of the city through the Public Works Director. Upon the reasonable written request of the Public Works Director, a provider requesting an assignment or transfer shall provide the city with a completed copy of any application documents required by the PUCO and/or FCC for such an assignment or transfer. If the city should object to such assignment or transfer without requesting such additional PUCO and/or FCC documents, it shall serve the provider with notice of the objection within 30 days following receipt of the provider's initial request. If the city should object to such an assignment or transfer following the request of additional PUCO and/or FCC documents then the city will serve the provider with notice of any objection within 15 days following receipt of all copies of the required PUCO and/or FCC application documents. If no objection is served upon the provider within 30 days of the city's receipt of the initial assignment or transfer request and the city has not requested additional PUCO and/or FCC documents, then the city shall be deemed to have provided its consent to the requested assignment or transfer by operation of law. If no objection is served upon the provider within 15 days of the city's receipt of all the required PUCO and/or FCC documents and the city has requested such additional documents, then the city shall be deemed to have provided its consent to the requested assignment or transfer by operation of law.
   (B)   Certificate of registration and assignee/ transferee signature required. In no event shall a transfer or assignment of ownership or control be ultimately acceptable to the city without transferee or assignee requesting and being issued a replacement certificate of registration with 90 days of transfer or assignment.
(Ord. 10-2001, passed 9-5-01) Penalty, see § 51.99
§ 51.17 CONSTRUCTION PERMITS.
   (A)   Construction permit requirement. Except as otherwise provided in the Codified Ordinances, no person may construct in any rights-of-way without first having obtained a construction permit as set forth in this chapter. This requirement shall be in addition to any requirement set forth in Codified Ordinances.
      (1)   A construction permit allows the permittee to construct and to obstruct travel, in the specified portion of the rights-of-way as described in the construction permit while placing facilities described therein, to the extent and for the duration specified therein.
      (2)   Unless otherwise specified, a construction permit is valid for six months from date of issuance for the area of rights-of-way specified in the permit.
      (3)   No permittee may construct in the rights-of-way beyond the date or dates specified in the construction permit unless such permittee:
         (a)   Makes a supplementary application for another construction permit before the expiration of the initial construction permit; and
         (b)   Is granted a new construction permit or construction permit extension.
      (4)   Original construction permits issued under this chapter shall, when possible, be conspicuously displayed at all times at the indicated work site and be available for inspection by Inspectors and authorized city personnel. If the original construction permit is not conspicuously displayed at the indicated work site or the project involves work conducted simultaneously at multiple locations, then upon request, the construction permit must be produced within 12 business hours.
   (B)   Construction permit applications. Application for a construction permit shall be made to the Director of the Department of Public Works. In addition to any information required by the Public Works Director, all construction permit applications shall contain, and will only be considered complete upon compliance with the following provisions:
      (1)   Evidence that the applicant has been issued a certificate of registration (if one is required for the application) or proof that the applicant has written authority to apply for a construction permit on behalf of a party that has been issued a certificate of registration; and
      (2)   Submission of a completed construction permit application in the form required by the Public Works Director, including, but not limited to, all required attachments, scaled, and dated drawings (or other information acceptable to the Public Works Director) showing the location and area of the proposed project, number and location of street cuts, and the location of all existing and proposed facilities, accompanied by the certification of a registered professional engineer or other trained technical personnel acceptable to the Public Works Director that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations; and
      (3)   A city approved traffic control plan demonstrating the protective measures and devices that will be employed, consistent with the Ohio Manual of Uniform Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic; and
      (4)   If the applicant proposes to replace existing poles with larger poles within the rights-of-way, the applicant shall, upon the reasonable request of the Public Works Director, provide:
         (a)   Evidence satisfactory to the city that there is no excess capacity on existing poles or in existing underground systems; and
         (b)   Evidence to the city that it is not financially and/or technically practicable for the applicant to make an underground installation or locate its facilities on existing poles; and
         (c)   The location, size, height, color, and material of the proposed replacement poles; and
         (d)   Evidence satisfactory to the city that the applicant will adhere to all the applicable laws concerning the installation of such replacement poles.
      (5)   If applicant is proposing an underground installation in existing ducts or conduits within the right-of-way, the applicant shall provide credible information satisfactory to the city to sufficiently detail and identify:
         (a)   The location, approximate depth, size, and quantity of the existing ducts and conduits.
      (6)   If applicant is proposing an underground installation within new ducts or conduits to be constructed within the rights-of-way, the applicant must provide credible information satisfactory to the city to sufficiently detail and identify:
         (a)   The location, approximate depth, size, and quantity of proposed new ducts or conduits.
      (7)   A preliminary construction schedule and completion date.
      (8)   Payment of all money due to the city for:
         (a)   Permit fees; and
         (b)   Any loss, damage, or expense suffered by the city as a result of applicant's prior construction in the rights-of-way or any emergency actions taken by the city; and
         (c)   Any certificate of registration issued to the applicant/person whose facilities are being constructed; and
         (d)   Any other money due to the city from the applicant/person whose facilities are being constructed.
      (9)   When a construction permit is requested for purposes of installing additional systems or any part of a system, the posting of a construction bond and removal bond, acceptable to the city and subject to § 51.21 of this chapter for the additional systems or any part of a system is required.
   (C)   Issuance of construction permit; conditions.  
      (1)   If the Public Works Director determines that the applicant has satisfied the requirements of this chapter and the construction permit process, the Public Works Director shall issue a construction permit subject to the provisions of this chapter.
      (2)   The city may impose reasonable conditions in addition to the rules and regulations enacted by the Public Works Director, upon the issuance of the construction permit and the performance of the permittee thereunder in order to protect the public health, safety and welfare, to insure the structural integrity of the rights-of-way, to protect the property and safety of other users of the rights-of-way, and to minimize the disruption and inconvenience to the traveling public.
   (D)   Construction permit fees. The Public Works Director shall, after providing notice to and seeking input from all providers with systems in the city right-of-way, develop and maintain a schedule of permit fees in an amount sufficient to recoup all reasonable costs that the city incurs in permit issuance, including permit costs and rights-of-way costs, as allowed by law. No construction permit shall be issued without payment of construction permit fees except to the city or county, which shall be exempt. Construction permit fees that were paid for a permit that the city has revoked due to breach are not refundable.
   (E)   Joint applications. Applicants are encouraged to make joint application for construction permits to work in the rights-of-way at the same place and time. Joint applicants shall have the ability to divide amongst themselves, in proportions the parties find appropriate, any applicable construction permit fees.
(Ord. 10-2001, passed 9-5-01) Penalty, see § 51.99
§ 51.18 CONSTRUCTION, RELOCATION AND RESTORATION.
   (A)   Technical information required. Prior to commencement of any initial construction of facilities in the rights-of-way a construction permittee, upon the reasonable request of the Public Works Director, shall provide technical information about the proposed route of construction. The technical information required may consist of completion of the following tasks:
      (1)   Secure all available "as-built" plans, plats, and other location data indicating the existence and approximate location of all facilities along the proposed construction route.
      (2)   Visibly survey and record the location and dimensions of any facilities along the proposed construction route, including, but not limited to, manholes, valve boxes, utility boxes, posts, and visible street cut repairs.
      (3)   Determine and record the presence of and the approximate horizontal and vertical location of all underground facilities the applicant or person on whose behalf the permit was applied for owns or controls in the rights-of-way along the proposed system route. Upon the reasonable request of the Public Works Director, a permittee shall also record and identify the general location of all other facilities in the rights-of-way along the proposed system route. For the purposes of this section, general location shall mean the alignment of other facilities in the rights-of-way, but shall not necessarily mean the depth of other facilities in the rights-of-way.
      (4)   If a provider records the information requested above in an electronic format, the provider shall provide the city with an electronic copy of the data obtained from completion of the tasks described in this section. Incorporation of the data required herein (§ 51.18(A)(4)) by electronic means shall include only data for new facilities that can be readily incorporated into the city's database.
      (5)   Where the proposed location of facilities and the location of existing underground facilities appear to conflict with the plans as drafted, construction permittee has the option of either utilizing non-destructive digging methods, such as vacuum excavation, at the critical points identified to determine as precisely as possible, the horizontal, vertical and spatial position, composition, size and other specifications of the conflicting underground facilities, or re-designing the construction plans to eliminate the apparent conflict. A construction permittee shall not excavate more than a three (3) foot by three (3) foot square hole in the rights-of-way to complete this task.
      (6)   Based on all of the data collected upon completion of the tasks described in this section, adjust the proposed system design to avoid the need to relocate other underground facilities.
      (7)   All confidential/proprietary information submitted herein shall be so labeled.
   (B)   Qualified firm. All utility engineering studies conducted pursuant to this § 51.18 shall be performed by a firm specializing in utility engineering or may be performed by the construction permittee if the construction permittee is qualified to complete the project itself.
   (C)   Cost of study. The construction permittee shall bear the cost of compliance with § 51.18(A) through (C) of this chapter.
   (D)   Construction schedule. Unless otherwise provided for in this chapter, or unless the Public Works Director waives any of the requirements of this section due to unique or unusual circumstances, a construction permittee shall be required to; submit a written construction schedule to the city ten working days before commencing any work in or about the rights-of-way and, shall further notify the city not less than two working days in advance of any excavation in the rights-of-way. This section shall apply to all situations with the exception of circumstances under § 51.20(D)(1) (Emergency situations).
   (E)   Location of facilities.
      (1)   The placement of new facilities and replacement of old facilities, either above ground or underground, shall be completed in conformity with applicable laws.
      (2)   The city shall have the power to prohibit or limit the placement of new or additional facilities within the rights-of-way if the right-of-way is full. In making such decisions, the city shall strive to the extent possible to accommodate all existing and potential users of the rights-of-way, but shall be guided primarily by considerations of the public health, safety, and welfare, the condition of the rights-of-way, the time of year, the protection of existing facilities in the rights-of-way, future city and county plans for public improvements, development projects which have been determined to be in the public interest, and the non-discriminatory and competitively neutral treatment of providers.
      (3)   Upon the concurrence of the city, or if it is determined by the construction permittee and any appropriate local, state, or federal agency (or other entity with jurisdictional authority) that any existing poles in the rights-of-way are full, then those poles may be replaced with bigger and/or taller poles in order to accommodate additional facilities or systems only after the construction permittee has made reasonable attempts to reach an acceptable solution without replacement with bigger and/or taller poles. This paragraph shall not apply to replacement of any existing pole(s) with identically sized pole(s) which results from the destruction of or hazardous condition of the existing pole(s) as long as no new facilities or additional facilities are attached.
   (F)   Least disruptive technology. All construction or maintenance of facilities shall be accomplished in the manner resulting in the least amount of damage and disruption of the rights-of-way. In addition, all cable, wire or fiber optic cable installed in the subsurface rights-of-way under this chapter may be required to be installed in conduit, and if so required, no cable, wire or fiber optic cable may be installed under this chapter using "direct bury" techniques.
   (G)   Relocation of facilities.
      (1)   A provider shall, at its own expense, permanently remove and relocate its facilities in the rights-of-way whenever the city finds it necessary to request such removal and relocation. In instances where the city requests removal and/or relocation, the city shall waive all applicable construction permit fees. Upon removal and/or relocation, the provider shall restore the rights-of-way to a condition at least as good as its condition immediately prior to said removal or relocation. If existing poles are required to be removed and/or relocated, then the existing poles will be replaced with reasonably obtainable poles of the same or similar size unless otherwise permitted by the city. The Public Works Director may request relocation and/or removal in order to prevent unreasonable interference by the provider's facilities with:
         (a)   A public improvement undertaken or approved by the city or county;
         (b)   When the public health, safety, and welfare requires it, or when necessary to prevent interference with the safety and convenience of ordinary travel over the rights-of-way.
      (2)   Notwithstanding the foregoing, a provider who has facilities in the right-of-way subject to a vacation or narrowing that is not required for the purposes of the city, shall have a permanent easement in such vacated portion or excess portion in conformity with R.C. § 723.04.01.
      (3)   If, in the reasonable judgment of the city, a provider fails to commence the removal process and/or relocation of its facilities as designated by the city, within 30 days after the city's removal order is served upon provider, or if a provider fails to substantially complete such removal, including all associated repair of the rights-of-way of the city, within 12 months thereafter, then, to the extent not inconsistent with applicable law, the city shall have the right to:
         (a)   Declare that all rights, title and interest to the facilities belong to the city with all rights of ownership, including, but not limited to, the right to connect and use the facilities or to effect a transfer of all right, title and interest in the facilities to another person for operation; or
         (b)   Authorize removal of the facilities installed by the provider in, on, over or under the rights-of-way of the city at provider's cost and expense, by another person, however the city shall have no liability for any damage caused by such action and the provider shall be liable to the city for all reasonable costs incurred by the city in such action; and
         (c)   To the extent consistent with applicable law, any portion of the provider's facilities in, on, over or under the rights-of-way of the city designated by the city for removal and not timely removed by the provider shall belong to and become the property of the city without payment to the provider, and the provider shall execute and deliver such documents, as the city shall request, in form and substance acceptable to the city, to evidence such ownership by the city.
   (H)   Pre-excavation facilities location. Before the start date of any rights-of-way excavation, each provider who has facilities located in the area to be excavated shall be responsible to mark the horizontal and make every reasonable attempt using best efforts, to mark the approximate vertical placement of all its facilities. All providers shall notify and work closely with the excavation contractor in an effort to establish the exact location of its facilities and the best procedure for excavation.
   (I)   Rights-of-way restoration.
      (1)   The work to be done under the permit, and the restoration of the rights-of-way as required herein, must be completed within the dates specified in the permit. In addition to its own work, the permittee must restore the general area of the work, and the surrounding areas, including trench backfill, paving and its foundations in accordance with the standards established by the Public Works Director, subject to any applicable laws. The permittee must also inspect the area of the work and use reasonable care to maintain the same condition for 12 months thereafter.
      (2)   In approving an application for a permit, the city may choose either to have the permittee restore the rights-of-way or the city may restore the rights-of-way itself at the expense of the permittee.
      (3)   If the city chooses to allow permittee to restore the rights-of-way, construction permittee shall at the time of application of a construction permit post a construction bond in an amount determined by the city to be sufficient to cover the cost of restoring the rights-of-way to a condition at least as good as its condition immediately prior to construction. If, 12 months after completion of the restoration of the rights-of-way, the city determines that the rights-of-way have been properly restored, the surety on the construction bond shall be released.
      (4)   The permittee shall perform the work according to the standards and with the materials specified and approved by the city.
      (5)   By restoring the rights-of-way itself, the permittee guarantees its work and shall maintain it for 12 months following its completion. During this 12 month period, it shall, upon notification from the Department of Public Works, correct all restoration work to the extent necessary using the method required by the Department of Public Works. Weather permitting, said work shall be completed within five calendar days of the receipt of the notice from the Department of Public Works.
      (6)   If the permittee fails to restore the rights-of-way in the manner and to the condition required by the city, or fails to satisfactorily and timely complete all repairs required by the city, the city, at its option, with notice to provider and a reasonable time to cure, may do such work. In that event, the permittee shall pay to the city, within 30 days of billing, the cost of restoring the rights-of-way and any other costs incurred by the city. Upon failure to pay, the city may call upon any bond or letter of credit posted by permittee and/or pursue any and all legal and equitable remedies.
   (J)   Damage to provider's facilities and to other facilities.
      (1)   In the case of an emergency, and if possible after reasonable efforts to contact the provider seeking a timely response, when the city performs work in the rights-of-way and finds it necessary to maintain, support, or move a provider's facilities to protect those facilities, the costs associated therewith will be billed to that provider and shall be paid within 30 days from the date of billing. Upon failure to pay, the city may pursue all legal and equitable remedies in the event a provider does not pay or the city may call upon any bond or letter of credit posted by permittee and pursue any and all legal or equitable remedies.
      (2)   Each provider shall be responsible for the cost of repairing any facilities in the rights-of-way which it or its facilities damage. Each provider shall be responsible for the cost of repairing any damage to the facilities of another provider caused during the city's response to an emergency caused by such provider's facilities.
   (K)   Rights-of-way vacation. If the city vacates a rights-of-way which contains the facilities of a provider, such vacation shall be subject to the provisions of R.C. § 723.04.1.
   (L)   Installation requirements. The excavation, backfilling, restoration, and all other work performed in the rights-of-way shall be performed in conformance with all applicable laws and the standards as promulgated by the Public Works Director.
   (M)   Inspection.
      (1)   When the construction under any permit hereunder is completed, the permittee shall notify the Department of Public Works.
      (2)   The permittee shall make the construction site available to the Inspector and to all others as authorized by law for inspection at all reasonable times during the execution and upon completion of the construction.
      (3)   At any time, including the time of inspection, the Inspector may order the immediate cessation of any work which poses a serious threat to the health, safety, or welfare of the public, violates any law, or which violates the terms and conditions of the permit and/or this chapter.
      (4)   The Inspector may issue an order to correct work which does not conform to the permit and/or applicable standards, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. The order may be served on the permittee as provided in § 51.23(D). An order may be appealed to the Public Works Director. The decision of the Public Works Director may be appealed to the Board of Review whose decision shall be final. If not appealed, within ten days after issuance of the order, the provider shall present proof to the Public Works Director that the violation has been corrected. If such proof has not been presented within the required time, the Public Works Director may revoke the permit pursuant to § 51.20(E).
   (N)   Other obligations. Obtaining a construction permit does not relieve permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees, including on site inspection fees, required by the city, or any other city, county, state, or federal laws.
      (1)   A permittee shall comply with all requirements of laws, including the requirements of the Ohio Utility Protection Service (OUPS) and/or its lawful successor.
      (2)   A permittee shall perform all work in conformance with all applicable laws and standards and is responsible for all work done in the rights-of-way pursuant to its permit, regardless of who performs the work.
      (3)   No rights-of-way obstruction or excavation may be performed when seasonally prohibited or when conditions are unreasonable for such work, except in the case of an emergency as outlined in § 51.20(D)(1).
      (4)   A permittee shall not so obstruct a rights-of-way that the natural free and clear passage of water through the gutters or other waterways shall be interfered with.
      (5)   Private vehicles other than necessary construction vehicles may not be parked within or adjacent to a permit area. The loading or unloading of trucks adjacent to a permit area is prohibited unless specifically authorized by the permit.
   (O)   Undergrounding required. Any owner of property abutting upon a street or alley where service facilities are now located underground and where the service connection is at the property line, shall install or cause others to install underground any service delivery infrastructure from the property line to the buildings or other structures on such property to which such service is supplied.
(Ord. 10-2001, passed 9-5-01) Penalty, see § 51.99
§ 51.19 MINOR MAINTENANCE PERMITS.
   (A)   Minor maintenance permit requirement. No person shall perform minor maintenance of facilities in the rights-of-way without first having obtained a minor maintenance permit as set forth in this chapter. Minor maintenance means: (i) the routine repair or replacement of facilities with like facilities not involving construction and not requiring traffic control for more than two hours at any one location; (ii) or the routine repair or replacement of facilities with like facilities not involving construction and taking place on thoroughfares and arteries between the hours of 9:00 A.M. and 3:00 P.M.; (iii) or the routine repair or replacement of facilities with like facilities not involving construction on all rights-of-ways, other than thoroughfares and arterials, that does not impede traffic and is for a period of less than eight contiguous hours; (iv) or construction other than on thoroughfares and arterials that takes less than eight contiguous hours to complete, does not impede traffic and does not involve a pavement cut.
      (1)   A minor maintenance permit allows the minor maintenance permittee to perform all minor maintenance in any part of the rights-of-way as required.
      (2)   A minor maintenance permit is valid from the date of issuance until December 31 of the year in which the minor maintenance permit was issued at which time the minor maintenance permit shall expire.
      (3)   A minor maintenance permit must be displayed or upon request produced within 12 business hours.
      (4)   A minor maintenance permit by itself shall under no circumstances provide a permittee with the ability to cut pavement without seeking additional authority from the Director of the Department of Public Works.
   (B)   Minor maintenance permit applications. Application for a minor maintenance permit shall be made to the Director of the Department of Public Works. In addition to any information required by the Public Works Director, all minor maintenance permit applications shall contain, and will only be considered complete upon compliance with the following provisions:
      (1)   Credible evidence that the applicant has obtained a certificate of registration or proof that the applicant has written authority to apply for a minor maintenance permit on behalf of a party that has been issued a certificate of registration;
      (2)   Submission of a completed minor maintenance permit application in the form required by the Public Works Director.
      (3)   A statement that the applicant will employ protective measures and devices that, consistent with the Ohio Manual of Uniform Traffic Control Devices, will prevent injury or damage to persons or property and to minimize disruptions to the efficient movement of pedestrian and vehicular traffic.
   (C)   Issuance of minor maintenance permits; conditions.
      (1)   If the Public Works Director determines that the applicant has satisfied the requirements of this chapter and the minor maintenance permit process, the Public Works Director shall issue a minor maintenance permit subject to the provisions of this chapter.
      (2)   The city may impose reasonable conditions, in addition to the rules and regulations enacted by the Public Works Director, upon the issuance of the minor maintenance permit and the performance of the minor maintenance permittee thereunder in order to protect the public health, safety, and welfare, to insure the structural integrity of the rights-of-way, to protect the property and safety of other users of the rights-of-way, and to minimize the disruption and inconvenience to the traveling public.
   (D)   Minor maintenance permit fees. The Public Works Director shall, after providing notice to and seeking input from all providers with systems in the city right-of-way, develop and maintain a schedule of permit fees in an amount sufficient to recoup all reasonable costs associated with processing minor maintenance permits, as allowed by law. No minor maintenance permit shall be issued without payment of minor maintenance permit fees except to the city or county, which shall be exempt. Minor maintenance permit fees that were paid for a minor maintenance permit that the city has revoked due to breach are not refundable. The Public Works Director may revoke the minor maintenance permit as any other permit may be revoked under this chapter.
(Ord. 10-2001, passed 9-5-01) Penalty, see § 51.99
§ 51.20 ENFORCEMENT OF PERMIT OBLIGATION.
   (A)   Mandatory denial of permit. Except in the case of an emergency, no construction permit will be granted:
      (1)   To any person who has not yet made an application; or
      (2)   To any person or their agent who has outstanding debt owed to the city; or
      (3)   To any person or their agent as to whom there exists grounds for the revocation of a permit; or
      (4)   If, in the discretion of the Public Works 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 Public Works Director, in exercising this discretion, shall be guided by the safety and convenience of ordinary travel of the public over the rights-of-way, and by considerations relating to the public health, safety, and welfare.
   (B)   Permissive denial. The Public Works 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 rights-of-way, or when necessary to protect the rights-of-way and its users. The Public Works Director, in his or her discretion, may consider one or more of the following factors: the extent to which rights-of-way space where the permit is sought is available; the competing demands for the particular space in the rights-of-way; the availability of other locations in the rights-of-way or in other rights-of-way for the proposed facilities; the applicability of this chapter or other regulations of the rights-of-way that affect location of facilities in the rights-of-way; the degree of compliance of the provider with the terms and conditions of this chapter and its requirements, and other applicable ordinances and regulations; the degree of disruption to surrounding communities and businesses that will result from the use of that part of the rights-of-way; the condition and age of the rights-of-way, and whether and when it is scheduled for total or partial re-construction; the balancing of the costs of disruption to the public and damage to the rights-of-way, against the benefits to that part of the public served by the expansion into additional parts of the rights-of-way; and whether such applicant or their agent has failed within the past three years to comply, or is presently not in full compliance, with the requirements of this chapter or, if applicable, any other chapters of the Codified Ordinances, or any other applicable law.
   (C)   Discretionary issuance.
      (1)   Notwithstanding the provisions of § 51.20(A)(1) and (2), the Public Works Director may issue a permit in any case where the permit is necessary:
         (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.
      (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 at the time it was required to submit its list of next year projects.
   (D)   Work done without a permit.
      (1)   Emergency situations.
         (a)   Each provider shall, as soon as reasonably practicable, notify the Public Works Director of any event regarding its facilities which it considers to be an emergency. The provider may proceed to take whatever actions are necessary in order to respond to the emergency. Within two business days, unless otherwise extended by the Public Works Director, after the occurrence or discovery of the emergency (whichever is later), the provider shall apply for the necessary permits, pay the fees associated therewith and fulfill all the requirements necessary to bring itself into compliance with this chapter for any and all actions taken in response to the emergency.
         (b)   In the event that the city becomes aware of an emergency regarding a provider's facilities, the city may attempt to contact the provider or system representative of each provider 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 provider whose facilities caused the emergency.
      (2)   Non-emergency situations. Except in the case of an emergency, any provider who constructs in, on, above, within, over, below or through a right-of-way without a valid permit shall cease any further work upon the order of the inspector or Public Works Director and before commencing any additional work shall within ten business days of initiating such construction obtain a permit, pay double the normal fee for said permit, pay double all the other fees required by the Codified Ordinances, deposit with the city the fees necessary to correct any damage to the rights-of-way and comply with all of the requirements of this chapter.
   (E)   Revocation of permits.
      (1)   Permittees hold permits issued pursuant to the Codified Ordinances as a privilege and not as a right. The city reserves the 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, the following:
         (a)   The violation of any provision or condition of the permit or this Chapter; or
         (b)   An evasion or attempt to evade any provision or condition of the permit or this Chapter, or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens; or
         (c)   Any material misrepresentation of fact in the application for a permit; or
         (d)   The failure to obtain and/or maintain required construction or removal bonds and/or insurance; or
         (e)   The failure to obtain and/or maintain, when required, a certificate of registration; or
         (f)   The failure to complete construction in a timely manner; or
         (g)   The failure to correct any nonconformity as ordered pursuant to § 51.18(D).
      (2)   If the Public Works Director determines that the permittee has committed a substantial breach of a term or condition of any law or any provision or condition of the permit, the Public Works 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 Public Works Director, may place additional or revised conditions on the permit.
      (3)   By the close of the next business day following receipt of notification of the breach, permittee shall contact the Public Works Director with a plan, acceptable to the Public Works Director, for its correction. Permittee's failure to so contact the Public Works 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)   From time to time, the Public Works Director may establish a list of standard conditions for the permit. A substantial breach of any condition shall also constitute an unauthorized use of the public rights-of-way as defined in § 51.14.
      (5)   If a permittee, commits a second substantial breach as outlined above, permittee's permit will automatically be revoked and not be allowed further permits for one full year, except for emergency repairs.
      (6)   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. 10-2001, passed 9-5-01) Penalty, see § 51.99
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