§ 96.241 RIGHT-OF-WAY BONDS.

(2) A construction permit allows the holder to construct in that part of the right-of-way described in the permit and to hinder free and open passage in the specified portion of the right-of-way by placing facilities as described therein, to the extent and for the duration specified therein.

(b) Permit applications.

(1) No permit shall be issued unless the following information has been provided:

A. Evidence that the applicant is a registrant or is authorized to apply for a permit on behalf of a registrant;

B. Submission of a completed permit application in the form required by the city, including all required attachments, and dimensioned, dated drawings showing the location and area of the proposed project and the location of all existing and proposed facilities;

C. If the applicant is proposing to rebuild or install overhead facilities, the utility shall provide evidence that surplus space is not available on existing utility poles along the proposed route;

D. If the applicant is proposing an underground installation in existing ducts or conduits within the right-of-way, information in sufficient detail to identify:

1. The excess capacity currently available in the ducts or conduits before installation of applicant’s facilities; and

2. The excess capacity, if any, that will exist in the ducts or conduits after installation of applicant’s facilities.

E. If the applicant is proposing an underground installation within new ducts or conduits to be constructed in right-of-way:

1. The location, depth, size and quantity of proposed new ducts or conduits;

2. The excess capacity that will exist in the ducts or conduits after installation of applicant’s facilities;

F. A construction schedule and completion date; and

G. Payment of all money due to the city for:

1. Prior construction permits issued to applicant;

2. Any loss, damage or expense suffered by the city as a result of applicant’s prior construction in the right-of-way or any emergency actions taken by the city; and

3. Any franchise or license issued to the registrant whose facilities are being constructed.

(2) No permits for service drops or minor maintenance work of short duration or limited scope shall be issued unless:

A. Conditions of divisions (b)(1)A., (b)(1)F. and (b)(1)G. above are met; and

B. Street locations of service drops or minor maintenance work are transmitted or called into the city, noting if paved surface removal or street crossings are involved.

(1) Prior to issuance of any permit, excluding permits for service drops or minor maintenance work of short duration or limited scope, the applicant shall conduct, at its expense, a subsurface utility study on the proposed route of construction or extension. The study shall include the following tasks:

A. Secure all available “as-built” plans, plats and other location data indicating the existence and approximate location of all underground facilities along the proposed construction route;

B. Visibly survey and record the location and dimensions of any above-ground features of all underground facilities along the proposed construction route, including, but not limited to, manholes, valve boxes, utility boxes, posts and visible street cut repairs;

C. Plot and incorporate the data obtained from completion of the tasks described in divisions (c)(1)A. and (c)(1)B. above on the permittee’s proposed system route maps, and plan sheets. The permittee shall provide the city with this information.

(2) A permittee shall belong to the one call line location system.

(3) The city may impose reasonable conditions upon the issuance of the permit to protect the public health, safety and welfare, to ensure the structural integrity of the right-of-way, to protect the property and safety of other users of the right-of-way, and to minimize the disruption and inconvenience to the traveling public. Protective measures and devices will be employed which are consistent with the Uniform Manual of Traffic Control Devices.

(4) The requirements of this division (c) shall apply to new construction only if the construction is located outside the area designated by the city’s design standards.

(d) Permit fees.

(1) The city may require prior payment of permit fees.

(2) Permit fees paid for a permit that has been revoked are not refundable.

(e) Joint applications.

(1) Applicants who make joint application for construction permits, for which construction is not performed by the city, may share in the payment of the permit fee.

(2) Applicants who apply for permits for the same construction, which is not performed by the city, may share in the payment of the permit fee. Applicants must agree among themselves as to the portion each will pay and so indicate on their applications.

(1992 Code, § 35.5-4) (Ord. 55-99, passed 5-17-1999)

§ 96.239 CONSTRUCTION AND RESTORATION.

(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)

§ 96.240 ENFORCEMENT OF PERMIT OBLIGATION.

(a) Denial of permit.

(1) Mandatory denial. Except in the case of an emergency, no right-of-way permit will be granted:

A. To any person required to be registered who has not done so;

B. To any person as to whom there exists grounds for the revocation of a permit; and

C. If 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 city 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.

(2) Discretionary denial. The city may deny a permit 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. The city, in its discretion, may consider one or more of the following factors:

A. The extent to which the 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 other right-of-way for the facilities of the particular company;

D. The applicability of ordinances 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 applicant with the terms and conditions of its franchise, this Code 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 reconstruction;

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; and

I. Whether the applicant has, over the previous two years, complied with the provisions of this subchapter.

(b) Work done without a permit.

(1) Emergency situations.

A. Each registrant shall immediately notify the city of any emergency involving its facilities. The registrant shall take whatever actions are necessary to respond to the emergency.

B. If the city becomes aware of an emergency regarding a registrant’s facilities, the city may attempt to contact the local representative of each registrant 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 registrant whose facilities occasioned the emergency.

C. Any person who obstructs or excavates a right-of-way in an emergency shall subsequently obtain a permit.

(2) Non-emergency situations. Except in the case of an emergency, any person who obstructs or excavates a right-of-way without a permit must subsequently obtain a permit, pay double the normal permit fee, pay double all the other fees required by the Code, deposit with the city the fees necessary to correct any damage to the rights-of-way and comply with all requirements of this Code.

(1) Any permit may be revoked pursuant to the license revocation procedures in § 110.009 of this Code.

(2) If a permit is revoked, the permittee shall reimburse the city for its reasonable costs, including restoration costs and the costs of collection and reasonable attorneys’ fees incurred in connection with the revocation.

(1992 Code, § 35.5-6) (Ord. 55-99, passed 5-17-1999)

§ 96.241 RIGHT-OF-WAY BONDS.

(a) Right-of-way bond. Prior to beginning construction, a permittee shall deposit with the city an irrevocable, unconditional letter of credit and/or surety bond equal to 100% of the anticipated costs or those other lesser amount established by the city.

(b) Purposes. The right-of-way bond shall serve as security for:

(1) The faithful performance by the permittee or registrant of the requirements of this Code, including restoration of the right-of-way;

(2) Any expenditure, damage or loss incurred by the city occasioned by the permittee’s or registrant’s violation of this Code or its failure to comply with all rules, regulations, orders, permits and other directives of the city issued pursuant to this Code;

(3) The payment of all compensation due to the city, including permit fees;

(4) The payment of premiums for the required liability insurance;

(5) The payment to the city of any amounts for which the permittee or registrant is liable that are not paid by its insurance; and

(6) The payment of any other amounts which become due to the city pursuant to law.

It is hereby understood and agreed that this bond may not be canceled or not renewed by the surety nor the intention to cancel or not to renew be stated by the surety until 30 days after completion of construction of the facilities and, notwithstanding the foregoing, shall in no case be canceled or not renewed by the surety until at least 30 days written notice to the city of surety’s intention to cancel or not renew this bond.

(1992 Code, § 35.5-7) (Ord. 55-99, passed 5-17-1999)

§ 96.242 INDEMNIFICATION AND LIABILITY.

(a) City does not accept liability. By reason of the acceptance of a registration or the grant of a right-of-way permit, the city does not assume any liability:

(1) For injuries to persons, damage to property, or loss of service claims by parties other than the registrant or the city; or

(2) For claims or penalties of any sort resulting from the installation, presence, maintenance or operation of facilities by registrants or activities of registrants.

(b) Registrant or permittee indemnifies city. By registering with the city, a registrant agrees, or by accepting a permit a permittee is required, to defend, indemnify and hold the city whole and harmless from all costs, liabilities and claims for damages of any kind arising out of the construction, presence, installation, maintenance, repair or operation of its facilities, or out of any activity undertaken in or near a right-of-way, whether any act or omission complained of is authorized, allowed or prohibited by a right-of-way permit. It further agrees that it will not bring, nor cause to be brought, any action, suit or other proceeding claiming damages, or seeking any other relief against the city for any claim nor for any award arising out of the presence, installation, maintenance or operation of its facilities, or any activity undertaken in or near a right-of-way, whether the act or omission complained of is authorized, allowed, or prohibited by a right-of-way permit. The foregoing does not indemnify the city for its own negligence except for claims arising out of or alleging the city’s negligence where negligence arises outdoors and is primarily related to the presence, installation, construction, operation, maintenance or repair of the facilities by the registrant or on the registrant’s behalf, including, but not limited to, the issuance of permits and inspection of plans or work. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the registrant or to the city; and the registrant, in defending any action on behalf of the city, shall be entitled to assert in any action every defense or immunity that the city could assert in its own behalf.

(1992 Code, § 35.5-8) (Ord. 55-99, passed 5-17-1999)

§ 96.243 GENERAL PROVISIONS.

(a) Non-exclusive remedy. The remedies provided in this Code are not exclusive or in lieu of other rights and remedies that the city may have at law or in equity. The city may seek legal and equitable relief for actual or threatened injury to the right-of-way, including damages to the right-of-way.

(b) Reservation of regulatory and police powers. The city, by the granting of a permit, or by registering a person under § 96.237(b), does not surrender or to any extent lose, waive, impair or lessen the lawful powers and rights which it has now or may be hereafter vested in the city under the Constitution and statutes of the state and under the city charter to regulate the use of the right-of-way by the permittee. The permittee by its acceptance of a right-of-way permit, or registrant by registration under § 96.237(b), must agree that all lawful powers and rights, regulatory power, police power, or otherwise as are or the same may be from time to time vested in or reserved to the city, shall be in full force and effect and subject to the exercise thereof by the city at any time. A permittee or registrant is deemed to acknowledge that its rights are subject to the regulatory and police powers of the city to adopt and enforce general ordinances necessary to the safety and welfare of the public and is deemed to agree to comply with all applicable general laws and ordinances enacted by the city pursuant to those powers.

(c) No lessening of responsibility. This subchapter shall not be construed to relieve from or lessen the responsibility of any registrant for damages to persons or property caused by defects, nor shall the city be held as assuming any liability by reason of the issuance of any permits.

(1992 Code, § 35.5-9) (Ord. 55-99, passed 5-17-1999)

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