Chapter 12.12 PUBLIC RIGHTS-OF-WAY

For the purpose of this chapter, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the plural number. The word "shall" is always mandatory and not merely directory.

"Applicant" is any person making written application to the director of public works for an excavation permit hereunder.

"City" is the city of Elma.

"City council" or "council" is the city council of the city of Elma.

"Director of public works" is the director of public works of the city of Elma or his or his or her designee.

"Excavation work" is the excavation and other work permitted under an excavation permit and required to be performed under this chapter.

"Permittee" is any person who has been granted and has in full force and effect an excavation permit issued hereunder.

"Person" is any person, firm, partnership, association, corporation, company or organization of any kind.

"Street" is any street, highway, sidewalk, alley, avenue, or easement granted to or held by the city for public use, or other public way or public grounds in the city. (Ord. 1031 §2, 2002)

12.12.020 Excavation permit.

It shall be unlawful for any person to dig up, break, excavate, tunnel, undermine or in any manner break up any street or to make or cause to be made any excavation in or under the surface of any street any earth or place other excavated material obstructing or tending to interfere with the free use of the street, unless such person shall first have obtained an excavation permit therefore from the director of public works as herein provided. The council shall have the authority to adopt by resolution such provisions, including operational and performance standards, as it may from time to time deem necessary and appropriate relating to the performance of permitted activities. (Ord. 1011 §3, 2002)

12.12.030 Application.

No excavation permit shall be issued unless a written application for the issuance of an excavation permit is submitted to the director of public works who shall have the authority to establish the form and the information required in support thereof. In addition to such information as may be required by the director of public works, the written application shall state the name and address of the applicant, the nature, location, and purpose of the excavation, the date of commencement and date of completion of the excavation, and other data as may reasonably be required by the director of public works. The application shall be accompanied by plans showing the extent of the proposed excavation work, the dimensions and elevations of both the existing ground prior to said excavation and of the proposed excavated surfaces, the location of the excavation work, and such other information as may be prescribed by the director of public works. (Ord. 1011 §4, 2002)

12.12.040 Excavation permit fee.

A permit fee shall be charged by the director of public works for the issuance of an excavation permit which shall be in addition to all other fees for permits or charges relative to any proposed construction work. The excavation permit fee shall be in an amount which shall be established from time to time by resolution of the council. (Ord. 1011 §5, 2002)

12.12.050 Excavation placard.

The director of public works shall provide each permittee at the time a permit is issued hereunder a suitable placard containing such information as may be deemed appropriate by the director of public works. It shall be the duty of any permittee hereunder to keep the placard posted in a conspicuous place at the site of the excavation work. It shall be unlawful for any person to exhibit such placard at or about any excavation not covered by such permit, or to misrepresent the number of the permit or the date of expiration of the permit. (Ord. 1011 §6, 2002)

12.12.060 Surety bond.

Before an excavation permit as herein provided is issued, the applicant shall deposit with the city clerk-treasurer a surety bond in such reasonable amount as set by the director of public works payable to the city. The required surety bond must be:

1. With good and sufficient surety;

2. By a surety company authorized to transact business in the state;

3. Satisfactory to the city attorney in form and substance;

4. Conditioned upon the permittee’s compliance with this chapter to fill up, restore, and place in good and safe condition as near as may be to its original condition, and to the satisfaction of the director of public works, all openings and excavations made in streets, and to maintain any street where excavation is made in as good condition for the period of twenty-four months after said work shall have been done, usual wear and tear excepted, as it was in before said work shall have been done. Any settlement of the surface within said two-year period shall be deemed conclusive evidence of defective back-filling by the permittee. Nothing herein contained shall be construed to require the permittee to maintain any repairs to pavement made by the city if such repairs should prove defective. Any owner of real estate repairing or engaging another to repair his own sidewalk shall not be required to give such bond. An annual bond may be given under this provision which shall remain in force for one year conditioned as above, in the amount specified above and in other respects as specified above, but applicable as to all excavation work in streets by the principle in such bond during the term of one year from said date. (Ord. 1031 §7, 2002)

12.12.070 Routing traffic.

The permittee shall take appropriate measures to assure that, during the performance of the excavation work, traffic conditions as near normal as practicable shall be maintained at all times so as to cause as little inconvenience as possible to the occupants of the abutting property and to the general public, provided that the director of public works may permit the closing of streets, or portions thereof, to all traffic for a period of time prescribed by him if in his opinion it is necessary. The permittee shall route and control traffic including its own vehicles as directed by the city police department. The following steps shall be taken before any street may be closed or restricted to traffic:

1. The permittee must receive the approval of the director of public works and the police department therefore;

2. The permittee must notify the chief of the fire department of any street so closed;

3. Upon completion of construction work the permittee shall notify the director of public works and city police department before traffic is moved back to its normal flow so that any adjustments may be made;

4. Where flagpersons are deemed necessary by the director of public works or are required by applicable law, rule, or regulation, they shall be furnished by the permittee at its own expense. Through traffic shall be maintained without the aid of detours, if possible. In instances in which this would not be feasible, the director of public works will designate detours. The city shall maintain roadway surfaces of existing streets designated as detours without expense to the permittee, but in case there are no existing streets, the permittee shall construct all detours at its expense and in conformity with the specifications of the director of public works. The permittee will be responsible for any damage caused to any streets by the operation of its equipment. (Ord. 1011 §8, 2002)

12.12.080 Clearance for fire equipment.

The excavation work shall be performed and conducted so as not to interfere with access to fire stations and fire hydrants. Materials or obstructions shall not be placed with fifteen feet of fire hydrants. Passageways leading to fire escapes or fire-fighting equipment shall be kept free of piles of material or other obstructions. (Ord. 1011 §9, 2002)

12.12.090 Protection of traffic.

The permittee shall erect and maintain suitable barriers to confine earth from trenches or other excavations in order to encroach upon streets as little as possible. The permittee shall construct and maintain adequate and safe crossings over excavations and across streets under improvements to accommodate vehicular and pedestrian traffic at all street intersections. Vehicular and pedestrian crossings shall be constructed and maintained of materials of such type, of adequate size and strength as to accommodate pedestrian and vehicular traffic safely. (Ord. 1011 §10, 2002)

12.12.100 Removal and protection of utilities.

The permittee shall not interfere with any existing utility without the written consent of the director of public works and the utility company or person owning or operating the utility. No utility owned by the city shall be moved to accommodate the permittee unless the cost of such work be borne by the permittee. The cost of moving privately owned utilities shall be similarly borne by the permittee unless it makes other arrangements with the person owning the utility. The permittee shall support and protect by timbers or otherwise all pipes, conduits, poles, wires or other apparatus which may be in any way affected by the excavation work, and do everything necessary to support, sustain, and protect them under, over, along, or across said work. In case any of said pipes, conduits, poles, wires, or apparatus should be damaged, they may be repaired by the agency or person owning them and the expense of such repairs shall be charged to the permittee or, with the consent of the owner thereof, by the permittee, and his or its bond shall be liable therefore and any damages or losses arising from such damage. The permittee shall be responsible for any damage done to any public or private property by reason of the breaking of any water pipes, sewer, gas pipe, electric conduit or other utility and its bond shall be liable therefore. The permittee shall inform itself as to the existence and location of all underground utilities and protect the same against damage. (Ord. 1011 §11, 2002)

12.12.110 Protection of adjoining property.

The permittee shall at all times and at its own expense preserve and protect from injury any adjoining property by providing proper foundations and taking other measures suitable for the purpose. Where in the protection of such property it is necessary to enter upon private property for the purpose of taking appropriate protective measures, the permittee shall obtain a license from the owner of such private property for such purpose and, if permittee cannot obtain a license from such owner, the director of public works may authorize permittee to enter the private premises solely for the purpose of making the property safe to the extent that such authorization is allowed by law. The permittee shall, at its own expense, shore up and protect all buildings, walls, fences, or other property likely to be damaged during the progress of the excavation work and shall be responsible for all damage to public or private property of streets resulting from its failure properly to protect and carry out said work. Whenever it may be necessary for the permittee to trench through any lawn area, the sod shall be carefully cut and rolled and replaced after ditches have been backfilled as required in this chapter. All construction and maintenance work shall be done in a manner calculated to leave the lawn area clean of earth and debris and in a condition as near as possible to that which existed before such work began. The permittee shall not remove even temporarily any trees or shrubs which exist in parking strip areas or easements across private property without first having notified and obtained the consent of the property owner, or in the case of public property the appropriate city department or city official having control of such property. (Ord. 1011 §12, 2002)

12.12.120 Sidewalk excavations.

Any excavation made in any sidewalk or under a sidewalk shall be provided with a substantial and adequate footbridge over said excavation on the line of the sidewalk, which bridge shall be at least three feet wide and securely railed on each side so that foot passengers can pass over safely at all times. (Ord. 1011 §11, 2002)

12.12.130 Protective measures.

The permittee shall erect such fence, railing or barriers about the site of the excavation work as shall prevent danger to persons using the city street or sidewalks, and such protective barriers shall be maintained until the work shall be completed or the danger removed. At twilight there shall be placed upon such place of excavation and upon any excavated materials or structures or other obstructions to streets suitable and sufficient lights which shall be kept burning throughout the night during the maintenance of such obstructions. It shall be unlawful for anyone to remove or tear down the fence or railing or other protective barriers or any lights provided therefor the protection of the public. (Ord. 1011 §14, 2002)

12.12.140 Attractive nuisance.

It shall be unlawful for permittee to suffer or permit to remain unguarded at the place of excavation or opening any machinery, equipment or other device having the characteristics of an attractive nuisance likely to attract children and hazardous to their safety or health. (Ord. 1011 §15, 2002)

12.12.150 Care of excavated material.

All material excavated from trenches and piled adjacent to the trench or in any street shall be piled and maintained in such a manner as not to endanger those working in the trench, pedestrians or users of the streets, and so that as little inconvenience as possible is caused to those using streets and adjoining property. Where the confines of the area being excavated are too narrow to permit the piling of excavated material beside the trench, such as might be in the case in a narrow alley, the director of public works shall have the authority to require that the permittee haul the excavated material to a storage site and then re-haul it to the trench site at the time of back-filling. It shall be the permittee’s responsibility to secure the necessary permission and make all necessary arrangements for all required storage and disposal. (Ord. 1011 §16, 2002)

12.12.160 Damage to existing improvements.

All damage done to existing improvements during the progress of the excavation work shall be repaired by the permittee. Materials and workmanship for such repair shall conform with the requirements of any applicable code or chapter. If upon being ordered the permittee fails to furnish the necessary labor and materials for such repairs, the director of public works shall have the authority to cause said necessary labor and materials to be furnished by the city and the cost shall be charged against the permittee, and the permittee shall also be liable on its bond therefore. (Ord. 1011 §17, 2002)

12.12.170 Property lines and easements.

Property lines and limits of easements shall be indicated on the plan of excavation submitted with the application for the excavation permit and it shall be the permittee’s responsibility to confine excavation work within these limits. (Ord. 1011 §18, 2002)

12.12.180 Clean-up.

As the excavation work progresses, all streets and private properties shall be thoroughly cleaned of all rubbish, excess earth, rock and other debris resulting from such work. All clean-up operations at the location of such excavation shall be accomplished at the expense of the permittee and shall be completed to the satisfaction of the director of public works. From time to time, as may be ordered by the director of public works, and in any event, immediately after completion of said work, the permittee shall, at its own expense, clean up and remove all refuse and unused materials of any kind resulting from said work and upon failure to do so within twenty-four hours after having been notified to do so by the director of public works, said work may be done by the director of public works and at the cost thereof charged to the permittee, and the permittee shall also be liable for the cost thereof under the surety bond provided hereunder. (Ord. 1011 §19, 2002)

12.12.190 Protection of water courses.

The permittee shall provide for the flow of all water courses, sewers, or drains intercepted during the excavation work and shall replace the same in as good condition as it found them or shall make such provisions for them as the director of public works may direct. The permittee shall not obstruct the gutter of any street, but shall use all proper measures to provide for the free passage of surface water. The permittee shall make provisions to take care of all surplus water, muck, silt, slicking or other runoff pumped from excavations or resulting from sluicing or other operations and shall be responsible for any damage resulting from its failure to so provide. (Ord. 1011 §20, 2002)

12.12.200 Breaking through pavement.

Whenever it is necessary to break through existing pavement for excavation purposes, it shall be cut, excavated, filled, and resurfaced in such manner and in compliance with such specifications as may be established by the director of public works or applicable city standards. The techniques utilized shall take into consideration the primary goals that upon restoration, the pavement or sidewalk surface (1) has been restored to the same or better condition than was existing as of the time of the commencement of the work, and

(2) the period of expected usability is no less than prior to commencement of the work. (Ord. 1031 §21, 2002)

12.12.210 Tunnels.

Tunnels under pavements shall not be permitted except by permission of the director of public works. Where pipes or cables are placed under main thoroughfares, concrete streets, state highway, asphalt streets, or wherever designated by the director of public works, such work shall be done by jacking or boring casings under street surfaces and placing said pipes or cables inside of the casing; provided that, the director of public works shall have the discretion to approve other methods of placement as may be appropriate. (Ord. 1031 §22, 2002)

12.12.220 Back-filling.

Back-filling in any street opened or excavated pursuant to an excavation permit issued hereunder shall be compacted to a degree equivalent to that of the undisturbed ground in which the trench was dug. Compacting shall be done in such manner as required by applicable city standards or, in the absence thereof, such manner as may be required by the soil in question and sound engineering practices generally recognized in the construction industry. When water is taken from a hydrant, the permittee shall assign one person to operate the hydrant and shall make certain that said person has been instructed in the operation of the hydrant. The public works department shall likewise be notified at both the beginning and end of the job so that the condition of the fire hydrants can be checked on both occasions. Any damage done to the hydrant during the excavation shall be the responsibility of the permittee. Water shall be paid for by the permittee on the terms agreed upon With the public works department.

In the absence of other applicable standards, the following shall apply:

1. Back-Filling by Water Settling. When back-filling is to be done by water settling and before any compacting of the trenches is attempted, the permittee shall cause the loose material to be wetted by forcing a head of water of not less than thirty feet in height, down into the soft material so that the end of the pipe is not more than three feet above the bottom of the excavation.

The permittee shall allow the water to run until the material is saturated as indicated by the water rising and running out on the surface of the ground around the pipe. After each hole has been saturated, the jet pipe shall be moved along the trench line a distance of approximately four or five feet, but in no case more than eight feet, and the process repeated for the entire length of the back-fill trench. All work shall be done in such a manner as to obtain a relative compaction throughout the entire depth of the back-fill of not less than existing adjacent to the excavation.

2. Dry Back-Filling. Back-filling up to the first eighteen inches above the top of the utility pipes or similar installations shall be done with thin layers. Each layer is to tamped by manual or mechanical means. Layers that are hand tamped shall not exceed four inches in thickness. Layers that are power tamped shall not exceed six inches in thickness. The same requirements shall apply to the remainder of the back-filling if tamping is the method used for back-filling. Back-filling of all pipes of over twenty-four inches in diameter shall be carried up to the spring line of the pipe in three-inch layers, with each layer moistened and thoroughly tamped with suitable mechanical equipment. The back-fill around all pipes twenty-four inches or less in diameter shall be flooded or tamped as specified above to a depth of eighteen inches above the top of the pipe before any additional backfilling is placed thereon.

3. Back-Fill Material. Whenever any excavation for the laying of pipe is made through rock, the pipe shall be laid six inches above the rock bottom of the trench and the space under around, and six inches above the pipe shall be back-filled with clean river sand, noncorrosive soil or one-quarter inch minus gravel. Broken pavement, large stones, and debris shall not be used in the back-fill.

4. Back-Filling at the Surface. Back-filling shall be completed by placing the back-fill material well up over the top of the trench. For dry back-filling, the material shall be compacted with a roller of an approved type or with the rear of a truck carrying at least five tons until the surface is unyielding. Care shall be taken that material being compacted has proper moisture content for maximum compactibility. The surface shall then be graded as required.

Any deviation from the methods set forth above shall have prior written approval of the director of public works. (Ord. 1011 §21, 2002)

12.12.230 Restoration of surface.

The permittee shall restore the surface of all streets, broken into or damaged as a result of the excavation work, to its original condition in accordance with the specifications of the director of public works. The permittee may be required to place a temporary surface over openings made in paved traffic lanes. Except when the pavement is to be replaced before the opening of the cut to traffic, the fill above the bottom of the paving slab shall be made with suitable material well tamped into place and this fill shall be topped with a minimum of at least one inch of bituminous mixture which is suitable to maintain the opening in good condition until permanent restoration can be made. The crown of the temporary restoration shall not exceed one inch above the adjoining pavement. The permittee shall exercise special care in making such temporary restorations and must maintain such restorations in safe traveling condition until such time as permanent restorations are made. The asphalt which is used shall be in accordance with the specifications of the director of public works. If in the judgment of the director of public works it is not expedient to replace the pavement over any cut or excavation made in the street upon completion of the work allowed under such permit by reason of the looseness of the earth or weather conditions, the director of public works may direct the permittee to lay a temporary pavement of wood or other suitable material designated by him over such cut or excavation to remain until such time as the repair of the original pavement may be properly made.

Permanent restoration of the street shall be made by the permittee in strict accordance with the specifications prescribed by the director of public works to restore the street to its original and proper condition, or as near as may be.

Acceptance or approval of any excavation work by the director of public works shall not prevent the city from asserting a claim against the permittee and its surety under the surety bond required hereunder for incomplete or defective work if discovered within twenty-four months from the completion of the excavation work. The director of public works’ presence during the performance of any excavation work shall not relieve the permittee of its responsibilities hereunder. (Ord. 1031 §24, 2002)

12.12.240 City’s right to restore surface.

If the permittee shall have failed to restore the surface of the street to its original and proper condition upon the expiration of the time fixed by such permit or fails to prosecute the work in accordance with the requirements of this Ordinance or shall otherwise have failed to complete the excavation work covered by such permit, the director of public works, if he deems it advisable, shall have the right to do all work and things necessary to restore the street and to complete the excavation work. The permittee shall be liable for the actual cost thereof and twenty-five percent of such cost in addition for general overhead and administrative expenses. The city shall have a cause of action for all fees, expenses and amounts paid out and due it for such work and the city shall also enforce its rights under the permittee’s surety bond provided pursuant to this chapter.

It shall be the duty of the permittee to guarantee and maintain the site of the excavation work in the same condition it was prior to the excavation for two years after restoring it to its original condition. (Ord. 1011 §25, 2002)

12.12.250 Trenches in pipe laying.

Except by special permission from the director of public works, no trench shall be excavated more than two hundred fifty feet in advance of pipe laying nor left unfilled more than five hundred feet where pipe has been laid. The length of the trench that may be opened at any one time shall not be greater than the length of pipe and the necessary accessories which are available at the site ready to be put in place. Trenches shall be braced and sheathed according to generally accepted safety standards for construction work. No bracing, lagging, sheathing or other materials utilized in such bracing or sheathing shall be left in any trench at the time of its filling. (Ord. 1011 §26, 2002)

12.12.260 Prompt completion of work.

The permittee shall prosecute with diligence and expedition all excavation work covered by the excavation permit and shall promptly complete such work and restore the street to its original condition, or as near as may be, as soon as practicable and in any event not later than the date specified in the excavation permit therefore. (Ord. 1011 §27, 2002)

12.12.270 Urgent work.

If in the director of public works’ judgment traffic conditions, the safety or convenience of the traveling public or the public interest require that the excavation work be performed as emergency work, the director of public works shall have full power to order, either at the time permit is granted or upon subsequent review of the conditions, that a crew of employees and adequate facilities be employed by the permit-tee twenty-four hours a day to the end that such excavation work may be completed as soon as possible. (Ord. 1011 §28, 2002)

12.12.280 Emergency action.

In the event of any emergency in which a sewer, main, conduit or utility in or under any street breaks, bursts or otherwise is in such condition as to immediately endanger the property, life, health or safety of any individual, the person owning or controlling such sewer, main, conduit or utility, without first applying for and obtaining an excavation permit hereunder, shall immediately take proper emergency measures to cure or remedy the dangerous conditions for the protection of property, life, health and safety of individuals. However, such person owning or controlling such facility shall apply for an excavation permit not later than the end of the next succeeding day during which the director of public works’ office is open for business, and shall not proceed with permanent repairs without first obtaining an excavation permit hereunder (Ord. 1031 §29, 2002)

12.12.290 Noise, dust and debris.

Each permittee shall conduct and carry out the excavation work in such manner as to avoid unnecessary inconvenience and annoyance to the general public and occupants of neighboring property. The permittee shall take appropriate measures to reduce to the fullest extent practicable in the performance of the excavation work, noise, dust, and unsightly debris, and between the hours of ten p.m. and seven a.m. shall not use, except with the express written permission of the director of public works or in case of an emergency as herein otherwise provided, any tool, appliance or equipment producing noise of sufficient volume to disturb the sleep or repose of occupants of the neighboring property. (Ord. 1031 §30, 2002)

12.12.300 Preservation of monuments.

The permittee shall not disturb any surface monuments or hubs found on the line of excavation work until authorized to do so by the director of public works. All street monuments, property corners, bench marks and other monuments disturbed during the progress of the work shall be replaced as directed by the director of public works and the cost of the same shall be paid by the permittee. (Ord. 1011 §11, 2002)

12.12.310 Inspections.

The director of public works shall make such inspections as are reasonably necessary in the enforcement of this chapter. When so made, the permittee shall pay such inspections at the city’s cost. The director of public works shall have the authority to promulgate and cause to be enforced such rules and regulations as may be reasonably necessary to enforce and carry out the intent of this chapter. (Ord. 1031 §12, 2002)

12.12.320 Maintain drawings.

Users of sub-surface street space shall maintain accurate drawings, plans, and profiles showing the location and character of all underground structures including abandoned installations. Corrected maps shall be filed with the director of public works within sixty days after new installations, changes or replacements are made. (Ord. 1011 §11, 2002)

12.12.330 Chapter not applicable to city work.

The provisions of this Chapter shall not be applicable to any excavation work under the direction of competent city authorities by employees of the city or by any contractor of the city performing work for and on behalf of the city necessitating openings or excavations in streets. (Ord. 1011 §34, 2002)

12.12.340 Insurance.

A permittee shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the permittee, their agents, representatives, employees or subcontractors.

The permittee shall provide a certificate of insurance evidencing:

Commercial general liability insurance written on an occurrence basis with limits of such amount as may be established by the director of public works, taking into consideration the extent and nature of the project and the risks related thereto. The limits shall be aggregate for personal injury, bodily injury and property damage. Coverage shall include, but not limited to: blanket contractual; products/completed operations; broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer’s liability.

The city shall be named as an additional insured on the insurance policy, as to work performed by or on behalf of the permittee and a copy of the endorsement naming the city as additional insured shall be attached to the certificate of insurance. (Ord. 1011 §15, 2002)

12.12.350 Liability of city.

This chapter shall not be construed as imposing upon the city or any official or employee any liability or responsibility for damages to any person injured by the performance of any excavation work for which an excavation permit is issued hereunder; nor shall the city or any official or employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized hereunder, the issuance of any permit or the approval of any excavation work. (Ord. 1011 §16, 2002)

12.12.360 Penalties.

Any person violating any of the provisions of this chapter shall be deemed to have committed an offense and shall be subject to charging and penalty or punishment as set forth in Section 17.72.04 of the municipal code. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder. (Ord. 1011 §17, 2002)

12.12.370 Severability.

If any section, paragraph, subsection, clause or phrase of this chapter is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this chapter. The city council hereby declares that they would have passed this chapter and each section, paragraph, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, paragraphs, clauses or phrases be unconstitutional or invalid. (Ord. 1031 §18, 2002)