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(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.
(c) Revocation of permits.
(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)
(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.
(c) Form. The right-of-way bond shall contain the following endorsement:
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)
(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)
(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)