Duluth UDC § 915.05

ordinance from which this Section is derived, including by lease, sublease or assignment, to operate facilities located in the rights-of-way, unless specifically exempted by state, federal law or this Code, shall file a registration statement with the department within 90 days of the effective date of the ordinance from which this Section is derived. b. Following the effective date of the ordinance from which this Section is derived, each utility who seeks to have facilities located in any rights-of-way under the control of city, unless specifically exempted by state, federal law or this Code, shall file a notification of construction with the department prior to construction or installation 2. Registration Procedure. The registration information provided to the city shall be on a form approved by the city and is located on the city’s web page: a. All information requested on the form must be included in order for the request to be reviewed. Installation/Construction shall not commence until a registration permit is approved. b. The permit is good for six months. A reasonable extension may be granted by the Director if a hardship is encountered. 3. Issuance of Written Acceptance of Registration. a. If a registration is incomplete, the Planning and Development Director shall notify the registrant and shall provide a reasonable period of time in which to complete the registration. If a registration is complete, the Planning and Development Director shall so notify the utility in writing. b. Acceptance of the registration shall not convey title in the rights-of-way. Acceptance of the registration is only the nonexclusive, limited right to occupy rights-of-way in the city for the limited purposes stated in the acceptance. Acceptance of the registration does not excuse a utility from obtaining the permits required by city ordinances nor from obtaining appropriate access or pole attachment agreements before using the facilities of others, including the city. Acceptance of the registration does not excuse a utility from notifying the city of construction as required herein. 4. Facilities in Place without Registration. Beginning one year after the effective date of the ordinance from which this Code Section is derived, any facilities or part of a facility found in a right-of-way for which registration is required but has not been obtained unless specifically exempted by law, and for which no valid service agreement exists with the city, may be deemed to be a nuisance and an unauthorized use of the rights-of-way. The city may exercise any remedies or rights it has at law or in equity, including, but not limited to abating the nuisance; taking possession of the facilities; evicting the utility from the right-of- way; prosecuting the violator; and/or any other remedy provided by city ordinance or otherwise allowed in law or in equity. 5. Notification to City of Construction is Required. Written notification to the Planning and Development Director from the utility is required prior to any of the following activities: a. Before any utility does any work to construct, install, maintain, remove or relocate facilities on, along, over or under the right-of-way in the city; or b. Construction adjacent to the rights-of-way in the city that requires tree trimming within the rights-of-way. 262 | P a g e Article Nine. Project Design and Construction Standards c. This process is by way of the right-of-way registration permit and must be applied for each time a utility owner takes any action listed in item 5(a) above. 6. Locate Requests Required. As provided in O.C.G.A § 25-9-6 (the Georgia Utility Facility Protection Act) and other applicable state law currently in place or as amended. No utility shall commence, perform, or engage in blasting or in excavating with mechanized excavating facilities unless and until the utility planning the blasting or excavating has given forty-eight (48) hours’ notice by submitting a locate request to the utility protection center, beginning the next business day after such notice is provided, excluding hours during days other than business days. 7. Conditions of Street Occupancy. Failure to comply with the terms and conditions set forth in this Article may result in revocation of registration and removal of facilities from the rights-of-way. a. The 1988 Utility Accommodation Policy and Standards manual, including all references contained therein to codes, rules, regulations, schedules, forms and appendix items, except Appendix B (Permit Forms and supporting Documents), promulgated by the State of Georgia Department of Transportation, as may be amended from time to time is hereby adopted by reference and incorporated in the Article as if fully set forth herein, subject to the amendments and modification contained in this Code Section. A copy of the manual shall be maintained at the offices of the Planning and Development Director or his designee and open for public inspection. Any conflicts between the provisions of this Code Section and the manual shall be resolved in favor of the manual. References to state personnel, agencies, and fees shall be interpreted, where required, as meaning the City of Duluth municipal equivalents b. Protection of traffic and roadway. In conformance with city policy, no utility may occupy the city rights-of-way unless sufficient space is available so that the free flow and safety of traffic and other capacity considerations are not unduly impaired and the installation does not prevent the department from reasonably maintaining the streets, structures, traffic control devices and other appurtenant facilities, and further provided that maintenance and operations of the facilities do not jeopardize the traffic, street structure, other users of the right-of-way, or the right-of-way itself. c. Grading. If the grades or lines of any street within the city right-of-way are changed at any time during the term of the permit and this change involves an area in which the utility's facilities are located, then the utility shall, at its own cost and expense and upon the request of the city upon at least ten (10) business days’ notice, protect or promptly alter or relocate the facilities, or any part thereof, so as to conform with such new grades or lines. In the event the utility refuses or neglects to so protect, alter, or relocate all or part of the facilities, the city shall have the right to break through, remove, alter, or relocate all or any part of the facilities without any liability to the utility and the utility shall pay to the city the costs incurred in connection with such breaking through, removal, alteration, or relocation. d. Installation of poles and other wire holding structures and relocation. Unless otherwise provided in a valid service agreement, no placement of any pole or wire holding structure of the utility is to be considered a vested interest in the right-of-way, and such poles or structures are to be removed, relocated underground, or modified by the utility at its own expense whenever the city determines that the public convenience would be enhanced thereby. The facilities shall be so located and installed as to cause minimum interference with the rights and convenience of property owners. 8. Restoration of Property. A utility shall be liable, at its own cost and expense, to replace or repair, any street, facilities or property or structure thereon, thereunder or thereover or adjacent thereto that may become disturbed or damaged as a result of the construction or installation, operation, upgrade, repair or removal of facilities to a condition as good as or better than its condition before the work performed by the [event] that caused such disturbance or damage. If utility does not commence such replacement or 263 | P a g e Article Nine. Project Design and Construction Standards repair after 20 working days following written notice from the city, the city or the owner of the affected structure or property may make such replacement or repair and the utility shall pay the reasonable and actual cost of the same. 9. Discontinuance of Operations, Abandoned and Unused Facilities. a. A utility who has discontinued or is discontinuing operation of any facilities in the city shall: i. Provide information satisfactory to the city that the utility's obligations for its facilities in the rights-of-way under this Code Section and any other provision in the codified ordinances or other laws have been lawfully assumed by another utility; ii. Submit a written proposal to re-use its facilities; iii. Submit a written proposal for abandonment of facilities. Said proposal must be approved by the Planning and Development Director; iv. Remove its entire facilities within a reasonable amount of time and in a manner acceptable to the city; or v. Submit to the city, in good faith and within a reasonable amount of time, a proposal for transferring ownership of its facilities to the city. If a utility proceeds under this clause, the city may, at its option do one (1) or more of the following: 1. Purchase the facilities; 2. Accept donation of some or all facilities; or 3. Require the utility to post a bond in an amount sufficient to reimburse the city for its reasonably anticipated costs to be incurred in removing the facilities. b. Facilities of a utility who fails to comply with the above provision shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. The city may exercise any remedies or rights it has at law or in equity, including, but not limited to abating the nuisance; taking possession of the facilities, evicting the utility from the right-of-way; prosecuting the violator; and/or any other remedy provided by city ordinance or otherwise at law or in equity. 10. Termination of Registration. a. The registration statement shall remain in place for one year and renew each subsequent year automatically unless the utility is in default. The Planning and Development Director shall give written notice of default to a utility if it is determined that a utility has: i. Violated any provision or requirement of the issuance or acceptance of a registration application or any law of the city, state, or federal government; ii. Attempted to evade any provision or requirement of this Code Section; iii. Practiced any fraud or deceit upon city; or iv. Made a material misrepresentation of fact in its application for registration. b. If a utility fails to cure a default within 20 working days after such notice is provided to the utility 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 approval of registration. If the Planning and Development Director determines there is cause or reason to terminate, the following procedure shall be followed: i. City shall serve a utility with a written notice of the reason or cause for proposed termination and shall allow a utility a minimum of 15 calendar days to cure its breach. ii. If the utility fails to cure within 15 calendar days, the city may declare the registration terminated. 11. Unauthorized Use of Public Rights-of-Way. a. No utility shall use the rights-of-way to operate any facilities that have not been authorized by the city in accordance with the terms of this Code Section. b. No utility shall place or have placed any facilities in, on, above, within, over, below, under, or through the rights-of-way, unless allowed under this Code Section. 264 | P a g e Article Nine. Project Design and Construction Standards 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 Code Section continues shall constitute a distinct and separate offense. d. No utility shall fail to comply with the provisions of this Code Section. Each and every failure to comply shall be deemed a distinct and separate offense. Each and every day any violation of this Code Section continues shall constitute a distinct and separate offense. 12. Other Provisions. a. Reservation of Regulatory and Police Powers. The city by issuing a written approval of registration under this Code Section, does not surrender or to any extent lose, waive, impair, or lessen the lawful powers and rights, which it has now or which may be hereafter vested in the city under the Constitution and Laws of the United States, State of Georgia, and under the provisions of the city's codified ordinances to regulate the use of the rights-of-way. The utility by applying for and being issued a written approval of registration, is deemed to acknowledge that all lawful powers and rights, regulatory power, or 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 utility 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 enacted by the city pursuant to such powers. All utilities shall comply with city zoning and other land use requirements pertaining to the placement and specifications of facilities. b. Compliance. No utility shall be relieved of its obligation to comply with any of the provisions of this Code Section by reason of any failure of city to enforce prompt compliance. c. Appeals. See the Appeals Article of this Development Code.