Sec. 24-62. - General conditions for application and issuance of permits for encroachment and use.
(a) Every encroachment or other use of a street, sidewalk or public way authorized by or pursuant to this article or which the City Council will be requested to authorize by particular consent shall be subject to the following terms and conditions, unless expressly provided otherwise:
(1) The person proposing such encroachment or other use shall file a written application for a permit to work in streets and alleys and an administrative encroachment approval as required. However, if the encroachment or other use may be authorized only with particular consent from the Council, the written request for a Council encroachment approval shall be submitted to the Department of Public Works, along with payment of the required fee under Section 24-63.
(2) The application or written request shall contain all information, plans and specifications required by the Director of Public Works in order to determine the nature and appropriateness of the encroachment or other use and to ensure compliance with the terms and conditions for issuance of a permit or encroachment authorization.
(3) The applicant shall also file an application for a permit to work in the streets and alleys which shall be accompanied by payment of the permit fee required in accordance with Section 24-63 or other applicable section. The fee shall not be refunded, in whole or in part, unless the Director of Public Works shall approve the refund for good cause shown.
(4) The applicant shall, on behalf of the applicant and the applicant's heirs, devisees, successors and assigns, agree:
a. To indemnify, keep and hold the City free and harmless from liability on account of injury or damage to persons or property growing out of or directly or indirectly resulting from the encroachment or other use for which a permit for encroachment or approval is sought and the construction, reconstruction, maintenance, repair, existence and removal or cessation thereof;
b. If any suit or proceeding shall be brought against the City, at law or in equity, either independently or jointly with the applicant or any of the applicant's heirs, devisees, successors and assigns, on account thereof, the applicant and each such heir, devisee, successor and assign shall defend the City in the suit or proceeding without expense to the City; and
c. If a final judgment or decree is obtained against the City, either independently or jointly with the applicant or any of the applicant's heirs, devisees, successors and assigns, the applicant and each such heir, devisee, successor and assign shall pay the amount of the judgment or comply with the decree, bearing all costs and expenses of whatsoever nature attendant thereto, and shall hold the City harmless therefrom.
(5) Unless this requirement is waived by the Director of Public Works for good cause shown, the applicant shall furnish the City evidence of a liability insurance contract to indemnify, reimburse and hold the City harmless from all charges, damages or costs that the City may be required to pay or otherwise sustain by reason of the encroachment or other use for which a permit is sought and the construction, reconstruction, maintenance, repair, existence, and removal or cessation thereof. The contract of insurance shall:
a. Provide either commercial general liability insurance coverage in an amount of not less than $1,000,000.00 combined single limit or equivalent homeowner's or renter's liability insurance coverage in an amount of not less than $300,000.00 combined single limit; and
b. Name the City as an additional insured.
The contract shall contain a provision that it shall not be terminated or otherwise allowed to expire prior to 45 days (or 30 days for a homeowner's or renter's liability insurance contract) after written notice to that effect is received by the Director of Finance or a designee thereof on behalf of the City, provided that a shorter notice period may be accepted with the concurrence of the Director of Finance or a designee thereof. Approved insurance coverage shall be kept in full force and effect, without expense to the City, at all times during the period for which authorization is granted.
(6) The applicant shall require any contractor engaged to perform work or furnish materials with respect to the encroachment or other use to furnish a commercial general liability insurance contract or an endorsement to an existing insurance contract naming therein the City as an additional insured, which shall provide indemnities of not less than $1,000,000.00 combined coverage for bodily injuries and property damage resulting from the contractor's activities. Such insurance contract shall also provide for the payment of any final judgment that may be rendered against the City by reason of any person being injured or damaged in any way in person or property by the contractor's activities. The insurance contract shall contain a provision that it shall not be terminated or otherwise allowed to expire prior to 45 days after written notice to that effect is received by the Director of Finance or a designee thereof on behalf of the City, provided that a shorter notice period may be accepted with the concurrence of the Director of Finance or a designee thereof. The applicant shall be responsible for providing the City evidence of the insurance contract for each contractor engaged for performance of work in any portion of the street, sidewalk or other public way.
(7) Unless this requirement is waived by the Director of Public Works for good cause shown, the applicant shall furnish the City a bond with corporate surety approved by the City Attorney, an irrevocable letter of credit or other type of financial guaranty, payable to the City and approved by the City Attorney. The bond, letter of credit or other guaranty shall be conditioned upon the removal of the encroachment or cessation of any other use for which a permit is sought, as applicable, and shall be further conditioned upon the restoration of the street, sidewalk or public way in accordance with standards established by the Director of Public Works. The guaranty shall be in a sufficient amount, to be determined by the Director of Public Works, as will enable the City to fully and properly restore the street, sidewalk or public way and to otherwise satisfy the requirements of this article, if the applicant fails to do so. The guaranty shall contain a provision that it shall not be terminated or otherwise allowed to expire prior to 60 days after written notice to that effect is received by the Director of Public Works on behalf of the City, provided that a shorter notice period may be accepted with the concurrence of the City Attorney and the Directors of Public Works and Finance. The guaranty, if required, shall be kept in full force and effect, without expense to the City, at all times during the period for which authorization is granted.
(8) The granting of authorization for an encroachment or other use and the issuance of a permit in connection therewith shall not constitute an offer or grant of a franchise or other irrevocable license or right. Authorization for an encroachment or other use shall at all times be subject to revocation, and the terms and conditions on which it is granted shall also be subject to modification at any time. The Director of Public Works shall have authority to revoke a permit:
a. Upon a finding of noncompliance with the terms and conditions upon which the encroachment or other use was authorized;
b. Upon a finding of discontinuance or abandonment of the purpose for which the encroachment or other use was authorized; or
c. Upon a finding of a superseding public need for any portion of the street, sidewalk or other public way occupied by or otherwise affected by the encroachment or other use.
The Council may, for any reason, revoke any grant of authorization for an encroachment or other use.
(9) The rights conferred under any permit or approval process for an encroachment or other use may be transferred or assigned, subject to the express written approval of the Department of Public Works. The person to whom the rights are transferred or assigned shall be responsible for compliance with all terms and conditions applicable to the permitted encroachment or other permitted use.
(10) Following termination or revocation of authorization for an encroachment or other use or revocation of a permit or authorization issued in connection therewith, the person to whom the permit is issued or such person's heirs, devisees, successors, and assigns shall be responsible for removing the encroachment or ceasing the particular use and restoring the street, sidewalk, and public way to a condition satisfactory to the Director of Public Works. The person to whom the permit is issued or such person's heirs, devisees, successors, and assigns shall also be responsible for restoration or replacement of any public utility damaged, disturbed, or destroyed as a result of or in the course of the removal of an encroachment or cessation of any other use.
(11) The work of construction, reconstruction, repair, maintenance, and removal of any wire, pipe, conduit, device, or any other encroachment authorized under this section shall not be commenced until a separate work permit has been issued by the Director of Public Works. The Director shall reserve the right to revoke the work permit if the work performed shall not in all respects conform to this article, all other sections of this Code and other provisions having the force of law and also any and all particular requirements imposed by the Director of Public Works or other City officers or employees, as applicable. A separate fee, in the amount provided under Section 24-63, shall be paid in connection with the issuance of any work permit.
(b) Except as expressly provided otherwise, the general terms and conditions for issuance of a permit in Subsection (a) of this section shall apply in addition to any specific terms and conditions established under this article or other enactment of the Council granting authorization for an encroachment or other use of a street, sidewalk, or public way.
(c) The Director of Public Works shall have general authority to require that related, but distinct, encroachments or other uses be treated under separate permits.
(d) The Director of Public Works shall have general authority, subject to any limitations imposed under the Virginia Uniform Statewide Building Code (VUSBC), to deny any application for a permit or administrative encroachment, upon a determination that the encroachment or other use will materially or unreasonably interfere with the use of a street, sidewalk, or public way by the public; that the encroachment or other use will constitute a hazard to such use; or for other good cause pertaining to the public health, safety, welfare, and convenience.
(e) The Director of Public Works shall have general authority to impose additional requirements, where necessary to ensure the public health, safety, welfare, and convenience, as a precondition to the issuance of a permit under this section.
(Code 1993, § 25-44; Code 2004, § 90-69; Code 2015, § 24-62; Code 2020, § 24-62; Ord. No. 2005-49-122, § 1, 6-13-2005)
