(A) The unregulated removal and excavation of the pavement, surface and sub-surface rocks and soils and other material from the streets and other public ways in the city result many times in inconsistent and inferior restoration, all of which is adverse to the public health, safety, convenience and welfare.
(B) Definitions. As used herein, the following words and phrases have the meanings provided for them:
“EDGEWOOD STREET EXCAVATION STANDARDS.” The standards for the removal or excavation of pavement, surface and subsurface rocks and soil and any other material from the public ways in the city and the replacement thereof, as attached to Ord. 2016-07-8 and incorporated herein by reference.
“EVERYBODY.” Every person.
“NOBODY.” No person.
“PERSON.” Any human being and every combination thereof in the form of a corporation, partnership, limited liability company unincorporated association or otherwise, including, without limitation, public utilities.
“PUBLIC WAY.” A street, road, avenue, highway and every other parcel of real estate to which the public has a right of passage, except those that are subject to the exclusive regulation of Kenton County, or the Commonwealth of Kentucky.
“RESTORATION.” The replacement of pavement, surface and subsurface rocks and soil and any other material removed or excavated from any public way in the city.
(C) Edgewood Street Excavation Standards. The Edgewood Street Excavation Standards are hereby approved and adopted as the standards of the city for the removal or excavation of pavement, surface and subsurface rocks and soils and other materials from the public ways in the city and the restoration thereof.
(D) Prohibitions. Nobody other than the city, and the employees and contractors thereof, shall, by either act or omission, cause, permit, promote, suffer, allow, aid, assist, encourage or engage in the removal or excavation of any pavement, surface or subsurface rocks and soil, or any other material from any public way in the city without or contrary to a Public Way Excavation Permit from the city for that removal, excavation and restoration.
(E) Permits. Excavation Permits. A Public Way Excavation Permit may be issued by the city through the City Administrator to anyone who makes application therefor; but only upon:
(1) The receipt by the City Clerk of the following documents:
(a) A completed application for a Public Way Excavation Permit on a form provided by the city, which shall include, without limitation, all of the following information and documentation:
1. The name, address, telephone number and e-mail address of the applicant.
2. An identification of the public way in which the excavation is proposed, by name and location.
3. The area of that public way for which the removal or excavation is proposed.
4. A description of the proposed removal or excavation and restoration in conformity with the Edgewood Street Excavation Standards, including, without limitation:
a. The purpose of the excavation.
b. The size, area and location of the excavation.
c. The excavation barricades.
d. The duration of the excavation.
e. The restoration of the excavation in conformity with the Edgewood Street Excavation Standards, with an estimate of the time and cost thereof in conformity with the R.S. Means Construction Cost Data, latest edition.
5. A schedule of the owners of each parcel of real estate abutting upon each side of that portion of the public way for which the excavation is proposed for the entire length thereof, including the names and mailing addresses of the owners thereof, according to the records of the Kenton County Property Valuation Administrator.
6. A guaranty of the restoration of the pavement, surface and subsurface rocks and soils and any other material removed from the public way in the manner and time described in the application, with a daily penalty of one hundred dollars ($100) for delayed performance through a deposit of cash, bank check or an unconditional irrevocable letter of credit approved by and payable to the city, in an amount equal to the cost of the restoration identified in the application plus twenty-five percent (25%) thereof.
7. An agreement of any applicant (Governmental agencies prohibited by state law are exempt from this requirement) to defend, pay, indemnify and hold the city and the officers, agents, employees and volunteers thereof, harmless from each, every, any and all claims for losses, expenses, costs, compensation, and other damages of every kind and nature, and the defense thereof, including costs and attorney fees, and all claims, demands and causes of action for them, both at law and in equity, including, without limitation, third party actions and actions for contribution and/or indemnification, which are in any way related to the proposed removal, excavation and restoration.
8. The following policies of insurance through companies approved by the city in which the applicant is the named insured and the coverage of the applicant is primary and non-contributory.
a. Workmen's Compensation Insurance, specific to the State of Kentucky, as required by the terms of KRS Ch. 342.
b. A General Liability Policy of Insurance, ISO form CGL 00011001 or an equivalent approved by the city, by which the insurance company agrees to pay all damages resulting from any action or omission of the applicant or the city that is in any way related to the proposed excavation and restoration with limits of no less than one million dollars ($1,000,000) per occurrence, with the city named as an "Additional Insured." The additional insured endorsements must be CG20101185 or a combination of CG20100704 and CG20370704 or an equivalent approved by the city. The general liability policy shall be endorsed to provide the aggregate limit on a "per project" basis.
c. Automobile Liability Insurance, including non-owned liability, with limits of no less than (one million dollars) $1,000,000 combined single limit.
d. Installation coverage for materials at risk on the site of the work of the contractor, in an amount sufficient to cover the replacement of those materials and equipment at risk at that site.
e. A non-refundable application fee of one hundred dollars ($100) for the first application in a calendar year and fifteen dollars ($15) for each additional application in that same calendar year, which may be paid with each application or quarterly in advance.
(2) A determination by the Edgewood Public Services Director that the removal or excavation of pavement, surface and sub-surface rocks and soil and other materials from the public ways in the city and the restoration thereof proposed in the application is in conformity with the Edgewood Street Excavation Standards.
(F) Restoration.
(1) Inspection. At least two days before restoration is commenced, the city shall be notified thereof and the General Services Director shall cause the materials to be used therein and the method thereof to be inspected for conformance with the Edgewood Street Excavation Standards.
(2) Deficiencies. In the event that the General Services Director has any reason to believe that the restoration is not in conformity with the standards and regulations of the Edgewood Street Excavation Standards, the General Services Director shall provide the applicant with a written notice thereof specifically identifying the deficiencies in the restoration with a date not less than ten (10) days thereafter by which those deficiencies must be remedied. The applicant may appeal the decision of the General Services Director to the City Administrator by a written request for a due process hearing delivered to the City Clerk within seven (7) days after the notice of the non-conformance; but, in the event that the applicant fails to appeal the decision of the General Services Director or that decision is sustained by the City Administrator and the applicant fails to remedy the deficiencies within the time allowed, the General Services Director shall provide the applicant with a written notice that in the event the identified deficiencies are not remedied within a specific period of time thereafter, the city shall cause the deficiencies to be remedied through employees thereof or an independent contractor, at the cost of the applicant through the forfeiture of the cash, bank check or unconditional irrevocable letter of credit provided with the application for the excavation permit.
(G) Enforcement. The provisions of this section may be enforced through either or both criminal prosecutions and civil prosecutions pursuant to the provisions of the Local Government Code Enforcement Board Act at KRS 65.8801 through KRS 65.8839, and all other legal remedies, both at law and in equity.
(H) Violations. A violation of this section occurs whenever anybody, by either act or omission, conspires causes, permits, encourages, aids, assists, allows or engages in any of the acts, actions, behavior, conditions and occurrences prohibited by this section; and each and every separate non-continuing occurrence thereof, and each and every day of each continuing occurrence thereof is a separate violation of this section.
(Ord. 2016-07-08, passed 9-19-16) Penalty, see § 91.99