(a)   Location of facilities. The city may prohibit or limit the placement of new or additional facilities within the right-of-way if it determines there is insufficient space to accommodate the facilities. Factors to be considered in determining space availability include the public interest, the condition of the right-of-way, the time of year with respect to essential utilities, the protection of existing facilities in the right-of-way and future city plans for public improvements and development projects which have been determined to be in the public interest.
   (b)   Least disruptive technology. Construction or maintenance of facilities shall use all reasonable means to lessen damage and disruption of the right-of-way. A permittee may not intrude into the right-of-way without a specific written finding by the city that the permittee will use methods to lessen disruption to the right-of-way.
   (c)   Special exceptions. The city may grant an exception to the requirements of divisions (a) and (b) above if the permittee, upon application, demonstrates with written evidence that:
      (1)   The exception will not create any threat to the public health, safety or welfare;
      (2)   The increased economic burden and the potential adverse impact on the permittee’s construction schedule resulting from the strict enforcement of the requirement actually or effectively prohibits the ability of the permittee to provide utility services in the city; and
      (3)   The requirement unreasonably discriminates against the permittee in favor of another person.
   (d)   Relocation of facilities.
      (1)   A registrant shall promptly and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate its facilities in the right-of-way whenever the city requests removal and relocation, and shall restore the right-of-way. The city may make the request only when the facilities interfere with:
         A.   A present or future city use of the right-of-way;
         B.   A public improvement or a development project in which the city has an interest or investment; or
         C.   The safety and convenience of ordinary travel over the right-of-way.
      (2)   Unless otherwise agreed by the city engineer, if, in the reasonable judgment of the city, a registrant fails to commence removal of its facilities within 30 days after the city’s removal order, or if a registrant fails to substantially complete the removal, including all associated repair of the right-of-way of the city, within 180 days thereafter, the city may:
         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 rights, title, and interest in the facilities to another person for operation; or
         B.   Authorize removal of the facilities installed by a registrant on, over or under the right-of-way, at the registrant’s cost and expense, by another person; and
      (3)   Any portion of a registrant’s facilities on, over or under the right-of-way designated by the city for removal and not timely removed by a registrant shall belong to and become the property of the city without payment to the registrant and the registrant shall execute and deliver those documents, as the city shall request, in form and substance acceptable to the city, to evidence the ownership by the city.
   (e)   Right-of-way restoration.
      (1)   The work to be done under the permit, and the restoration of the right-of-way, must be completed within the dates specified in the permit, giving due regard to seasonal working conditions. In addition to its own work, the permittee must restore the general area of the work, including the paving and its foundations, to reasonably the same condition that existed before the commencement of the work and must 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 construction permit, the city may permit the permittee to restore the right-of-way or it may restore the right-of-way itself.
      (3)   If the city restores the right-of-way itself, the permittee shall pay the costs thereof within 30 days of billing. If, during the 24 months following the restoration, the pavement settles due to permittee’s improper backfilling, the permittee shall pay to the city, within 30 days of billing, the cost of repairing the pavement.
      (4)   If the city allows the permittee to restore the right-of-way, permittee shall at the time of application of a construction permit post a performance bond in an amount determined by the city to be sufficient to cover the cost of restoring the right-of-way to its pre-excavation condition. If, 12 months (24 months for pavement) after completion of the restoration of the right-of-way, the city determines that the right-of-way has been properly restored, the surety on the performance bond shall be released. The bond may be in the form of an annual right-of-way bond covering all construction permits issued by the city during that year, or an irrevocable unconditional letter of credit.
      (5)   The permittee shall perform the work according to the standards and with the materials specified by the city. The city may prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case-by-case basis.
      (6)   By restoring the right-of-way itself, the permittee guarantees its work and shall maintain it for 12 months (24 months for trench settlement) following its completion. During this period, it shall, upon notification from the city, correct all restoration work to the extent necessary using the method required by the city. The work shall be completed within 30 calendar days of the receipt of the notice from the city.
      (7)   If the permittee fails to restore the right-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, may do the work. The permittee shall pay to the city, within 30 days of billing, the cost of restoring the right-of-way.
   (f)   Damage to other facilities.
      (1)   When the city performs work in the right-of-way which requires maintaining, supporting or moving a registrant’s facilities to protect them, and the registrant does not perform the work, the costs associated therewith will be billed to the registrant and shall be paid within 30 days from the date of billing.
      (2)   Each registrant shall pay for repairing any facilities in the right-of-way which it or its facilities damage.
   (g)   Installation requirements. The excavation, backfilling, restoration and all other work performed in the right-of-way shall be done in conformance with city specifications.
   (h)   Inspection.
      (1)   The permittee shall notify the city in advance of the time the work under any permit hereunder is started.
      (2)   The permittee shall make the work site available to the city for inspection at all reasonable times during the execution and upon completion of the work.
      (3)   At the time of inspection, the city may order the immediate cessation of any work which threatens the life, health, safety or well-being of the public.
      (4)   The city may issue an order to the permittee for any work which does not conform to the applicable standards, conditions, or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within five days after issuance of the order, the registrant shall present proof to the city engineer that the violation has been corrected. If the proof has not been presented within the required time, the city engineer may revoke the permit pursuant to § 96.240(c).
   (i)   Other obligations. Obtaining a right-of-way permit does not relieve permittee of its duty to obtain all other necessary permits, licenses and authority and to pay all fees required by any other city, county, state or federal rules, laws or regulations.
      (1)   A permittee shall perform all work in conformance with all applicable codes and established rules and regulations, and is responsible for all work done in the right-of-way pursuant to its permit, regardless of who performs the work.
      (2)   Except in the case of an emergency, or with the approval of the city, no right-of-way obstruction or excavation may be performed when seasonally prohibited or when conditions are unreasonable for the work.
      (3)   A permittee shall not so obstruct a right-of-way that the natural free and clear passage of water through the gutters or other waterways shall be interfered with.
      (4)   Any permittee shall contact all abutting property owners to identify any existing private facilities in the right-of-way, including, but not limited to sprinklers and other utility lines.
(1992 Code, § 35.5-5) (Ord. 55-99, passed 5-17-1999)