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(A) Permit applications. Application for an excavation permit shall be made to the Board of Public Works or their authorized representative. Permit applications shall contain, and will be considered complete only upon compliance with, the requirements of the following provisions:
(1) Submission of a completed permit application, in the form prescribed by the Board of Public Works, including all required attachments and scaled drawings showing the location and area of the proposed excavation and the location of all existing and proposed equipment.
(2) Payment of all money due to the city for prior obstructions or excavations, including any loss, damage, or expense suffered by the city as a result of applicant's prior excavations or obstructions of the rights-of-way or any emergency actions taken by the city because of such prior excavations or obstructions.
(3) Filing of a permit bond and liability insurance pursuant to § 99.071.
(4) Payment of the permit fee pursuant to § 99.009.
(B) Issuance of permit; conditions. If the Board of Public Works or their authorized representative determines that the applicant has satisfied the requirements of this section, an excavation permit may be issued.
(1) The Board of Public Works may impose reasonable conditions upon the issuance of an excavation permit and the performance of the applicant thereunder in order to protect the public health, safety, and welfare, to insure the structural integrity of the rights-of-way, and to minimize disruption and inconvenience to the traveling public.
(2) A permit shall be void unless the excavation to be made pursuant thereto is commenced within 30 days from the permit effective date and the work diligently completed.
(3) Each permit shall state a purpose for the excavation and a time period for completion of all the work to be done thereunder. The Board of Public Works or their authorized representative may grant extensions of time for good cause.
(4) The permittee shall be responsible to comply with all current federal, state, and local laws, regulations and requirements. As used in this chapter, the term "permittee" shall mean the person to whom an excavation permit is issued, as well as the person owning the facility or installation for which the excavation permit is issued.
(C) Permit fees; fee computation.
(1) The Board of Public Works or their authorized representative shall establish the excavation permit fee after considering the extent of the proposed excavation, as follows:
(a) The number of times an excavation makes a transition between differing types of rights-of-way surfaces designated within § 99.009(A)(1). Each transition between pavement and non-pavement shall be considered an additional excavation.
(b) The length and width of an excavation where there is no transition between surface types. No single excavation, for permit pricing purposes only, shall exceed 450 square feet.
(c) The age of any pavement being excavated. Requests for excavations in pavement placed within the past year will not be granted except by declaration of an emergency, as determined by the Board of Public Works or authorized representative. If such emergency is declared, excavations in pavement placed within one year prior to the excavation will be assessed at five times the rate established by § 99.009. Excavations made in pavement placed between one and two years prior to the excavation will be assessed at four times the rate established by § 99.009. Excavations made in pavement placed between two and three years prior to the excavation will be assessed at three times the rate established by § 99.009. Excavations made in pavement placed between three and four years prior to excavation will be assessed at two times the rate established by § 99.009. Excavations made in pavement placed more than four years prior to the excavation will be assessed at the rate established by § 99.009.
(2) All permit fees collected under this section will be receipted into the General Fund and will be used to off set the cost of controlling and managing the public rights-of-way.
(3) Permit fees paid for a permit that has been revoked pursuant to this chapter are not refundable.
(D) Rights-of-way restoration. The work to be done under the excavation permit, and the restoration of the rights-of-way as required herein, must be completed within the dates specified in the excavation permit. In addition to its own work, the permittee must restore the general area of the work and the surrounding areas, including trench backfill, paving and its foundations, to the same or better condition that existed before the commencement of the work and must inspect the area of the work and use reasonable care to maintain the same condition for 36 months thereafter, natural wear excepted.
(1) The Board of Public Works shall have the authority to prescribe the manner and extent of the restoration and may do so in written procedures of general application including General and Detailed Specifications for Street and Alley Pavements, Sidewalks, Curbs, Drainage Structures and Other Miscellaneous Items, as previously adopted by the Board of Public Works and as amended from time to time or on a case-by-case basis. In exercising this authority, the Board of Public Works or their authorized representative shall be guided by the following standards and considerations: the number, size, depth, and duration of the excavations; the traffic volume carried by the rights-of-way; the pre-excavation condition of the rights-of-way; the remaining life expectancy of the rights-of-way affected by the excavation; and the likelihood that a particular method of restoration would be effective in slowing the depreciation of the rights-of-way that would otherwise take place. Methods of restoration may include, but are not limited to, patching, replacement of the street base, and milling and overlay of the entire area of the rights-of-way affected by the work.
(2) By accepting an approved excavation permit, the permittee guarantees its work and shall maintain it for 36 months following its completion and acceptance by the Board of Public Works or their authorized representative. During this 36 month period, the permittee shall, upon notification from the Board of Public Works or their authorized representative and within a reasonable and acceptable time frame, correct all restoration work to the extent necessary using the method specified by the Board of Public Works or authorized representative.
(3) If the permittee fails to restore the rights-of-way in the manner and to the condition required by the Board of Public Works or their authorized representative, or fails to satisfactorily and timely complete all repairs required, the Board of Public Works or authorized representative, at its option, may perform the restoration with city forces or hire by contract the services of an independent contractor to perform the restoration. In that event, the permittee shall pay to the city, within 30 days of billing, the city's cost incurred in restoring the rights-of-way.
(4) At all times while the work is in progress, the permittee shall maintain at the job location a sign, barricade, or other device bearing the permittee's name in such a manner as to be clearly visible. The permittee shall maintain traffic control in accordance with the Indiana Manual on Uniform Traffic Control Devices, latest edition, and all other applicable state and federal laws.
(5) The permittee shall make the work site available for inspection at all reasonable times during the performance and upon completion of the work.
(6) The Board of Public Works or their authorized representative may order stoppage of work for deviations by the permittee from the excavation permit or may order the immediate cessation of any work which poses a serious threat to the life, health, safety, or well being of the public until such time as reauthorization of work is granted by the Board of Public Works or their authorized representative.
(7) If the work authorized by an excavation permit begins later or ends sooner than the date given on a permit, the permittee shall notify the Board of Public Works or their authorized representative of the accurate information as soon as this information is known.
(E) Scope of permit. An excavation permit is valid only for the area of the rights-of-way specified in the permit. No permittee may perform any work outside the area specified in the permit, except as provided herein. Any permittee that determines that it must excavate in an area other than that specified in the permit must, before working in that area, apply for a permit extension and pay any additional fees necessitated thereby. An excavation permit is valid only for the dates specified in the permit. No permittee may begin its work before the permit start date or, except as provided herein, continue working after the permit end date. If a permittee does not finish the work by the permit end date, it must make application for a new permit for the additional time it needs, and receive the new permit or an extension of the old permit before working after the end of the previous permit.
(F) Other obligations.
(1) Obtaining a permit does not relieve the permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by any other laws.
(2) A permittee shall perform all work in conformance with all applicable law, and is responsible for all work done in the rights-of-way pursuant to its permit, regardless of who performs the work.
(3) Except in case of an emergency, or with the approval of the Board of Public Works or their authorized representative, no excavation shall be performed when weather conditions make such work unsafe to any person or if conditions exist that, if the excavation were performed, would cause degradation or damage to the rights-of-way that would not normally occur if such conditions did not exist.
(4) A permittee shall not obstruct any rights-of-way in a manner that interferes with the natural passage of water through the gutters or other waterways.
(G) Denial of permit.
(1) Mandatory denial. Except in the case of an emergency, an excavation permit shall be denied to any applicant who has failed within the past three years to comply or is presently not in full compliance with the requirements of this section; to any person who has delinquent debt owed to the city; to any person as to whom there exists grounds for the revocation of a permit under this chapter; and, if the issuance of a permit for the particular date or time would cause a conflict or interfere with an exhibition, celebration, festival, or any other event. In determining whether a conflict or interference exists, the Board of Public Works or authorized representative shall be guided by the safety and convenience of ordinary travel of the public over the rights-of-way, and by considerations relating to the public health, safety, and welfare.
(2) Permissive denial. The Board of Public Works or authorized representative may deny a permit in order to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the rights-of- way, or when necessary to protect the rights-of-way or its users. The Board of Public Works or authorized representative, in its discretion, may consider one or more of the following factors: the capacity of the rights-of-way to accommodate additional facilities; the availability of other locations in the rights-of-way capable of supporting additional facilities; the degree of disruption to surrounding communities and businesses that will result from the proposed use of the rights-of-way; the condition and age of the rights-of-way; whether and when such rights-of-way are scheduled for total or partial reconstruction; this section; and other applicable ordinances and regulations.
(H) Work done without a permit.
(1) Emergency situations. A person or entity owning facilities previously located within the rights-of-way shall, within one business day, notify the Board of Public Works or their authorized representative of any event that it considers to be an emergency. Within two business days after the occurrence of the emergency, the owner or owner's representative shall apply for the necessary permits, pay the fees associated therewith, and fulfill the rest of the requirements necessary to bring itself into compliance with this section for the actions it took in response to the emergency. In the event that the city becomes aware of an emergency regarding facilities not owned by the city, the city may attempt to contact the local representative of each facility affected, or potentially affected, by the emergency. In any event, the Board of Public Works may take whatever action it deems necessary in order to respond to the emergency, the cost of which shall be borne by the owner of the facilities whose equipment occasioned the emergency.
(2) Non-emergency situations. Except in the case of an emergency, any person who excavates rights-of-way without a permit must subsequently obtain a permit, pay double the computed fee for such excavation under provisions of § 99.009 and § 99.999(C) for said permit, deposit with the Board of Public Works or authorized representative the fees necessary to correct any damage to the rights-of-way, and comply with all of the requirements of this section.
(I) Revocation of permits. Permittees hold permits issued pursuant to this chapter as a privilege and not as a right. The city reserves its right, as provided herein, to revoke any excavation permit, without refund of the permit fee, in the event of a substantial breach of the terms and conditions of any law or any condition of the permit. A substantial breach by permittee shall include, but shall not be limited to, the following:
(1) The violation of any material provision of the excavation permit;
(2) An evasion or attempt to evade any material provision of the excavation permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens;
(3) Any material misrepresentation of fact in the application for an excavation permit;
(4) The failure to maintain the required bonds or insurance;
(5) The failure to complete the work in a timely manner; or
(6) The failure to correct a condition indicated on an order issued pursuant to this chapter.
(7) If the Board of Public Works or their authorized representative determines that the permittee has committed a substantial breach of any law or any condition placed on the excavation permit, the Board of Public Works or their representative shall make a written demand upon the permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. Further, a substantial breach, as stated above, will allow the Board of Public Works or their authorized representative to place additional or revised conditions on the permit. Within 24 hours of receiving notification of the breach, permittee shall contact the Board of Public Works or their authorized representative with a plan, acceptable to the Board of Public Works, for correction of the breach. Permittee's failure to submit an acceptable plan or permittee's failure to reasonably implement the approved plan shall be cause for immediate revocation of the permit.
(8) If a permit is revoked, the permittee shall reimburse the city for the city's reasonable costs, including restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation.
(J) Failure to comply with obligations; remedies.
(1) If, for any reason, any person or entity, their agents and/or their subcontractors, fail to comply with obligations under federal, state and local regulations and the city is made aware of such failure, the city shall have available, but not be limited to, the following remedies:
(a) The person or entity will be required to take all actions necessary to repair and restore levees and/or rights-of-ways to conditions which comply with federal, state or local regulations.
(b) If the person or entity does not take such action within 30 days notice (by U.S. certified mail return receipt requested), the city will take corrective action and invoice the person or entity for associated costs in such restoration.
(c) The city reserves the right to penalize the person or entity for such violations in accordance with § 99.999.
(2) This division shall be applied to all persons and entities regardless of whether the work done is permitted or is done without permit. All contractors working for the city, or their subcontractors, will be responsible for understanding and complying with federal, state and local regulations when conducting repair and/or excavation around levees. All persons or entities must know and comply with all responsibilities under federal law and associated requirements made by the U.S. Army Corps of Engineers, District Engineer. The city will hold all persons and entities personally and financially responsible for improper encroachment of any easement, right-of-way or floodway. Of central concern, but not the only concern, is that encroachments would not have adverse impact on floodways.
(K) Additional requirements, public utilities, municipally owned utilities, and municipally owned sewer works. A public utility, as used in this chapter, shall include public utilities as defined by IC 8-1-2-1(a) 1998 S-12 and municipally owned utilities as defined by IC 8-1-2-1(h). Municipally owned sewer works are likewise subject to this chapter.
(1) Registration required. It shall be unlawful for any public utility to install, operate, construct, or maintain within any public rights-of-way any facilities unless such facilities are registered with the Board of Public Works or their authorized representative by filing a registration statement. All public utilities occupying city rights-of-way prior to adoption of this subchapter, upon passage of this subchapter and after receiving notice, shall have 60 days to register. The registra-tion statement shall be in a form which shall include the following:
(a) The identity and legal status of the registrant, including any affiliates who own or operate any facilities in the public rights-of-way;
(b) The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement;
(c) The name, address, telephone number and procedural contact information of a local representative, who shall be available at all times in the event of an emergency;
(d) A general description of services that the registrant provides or intends to offer to persons within the city through the utilization of facilities in the public rights-of-way;
(e) A statement of the authority, including pertinent verifiable documentation, pursuant to which the registrant occupies the public rights-of-way; and,
(f) Such other information as the Board of Public Works may reasonably require.
(2) Registration fee. Each registrant, at the time of filing an initial registration statement, shall pay to the city a registration fee of $1,000.
(3) Coordination of excavations.
(a) Each public utility shall prepare and submit to the Board of Public Works or their authorized representative a utility master plan, in a format specified by the Board of Public Works or their authorized representative, that shows the horizontal and approximate vertical location relative to the boundaries of the rights-of-way of all facilities which it owns or over which it has control and which are located in any city rights-of-way. The utility master plan shall also show all planned major utility work for the next two years. Utilities shall submit an initial utility master plan no later than one year after the effective passage date of the ordinance adopting this section. Thereafter, each utility shall submit annually, on the first business day of July, a revised and updated utility master plan and an updated registration statement. The updated registration statement shall detail any facilities located within the rights-of-way formerly owned by the registrant and sold to another entity since the filing of the previous registration statement. As used in this section, the term "planned major utility work" refers to any and all future excavations planned by the utility when the utility master plan or update is submitted that affects rights-of-way for more than five days, provided that the utility shall not be required to show future excavations planned to occur more than two years after the date that the utility master plan or update is submitted. The city shall make all utility master plans submitted in accordance with this section available for public inspection unless the information submitted is clearly marked as proprietary in nature and the City Attorney concurs with the proprietary designation.
(b) Each public utility shall cooperate with other registered utilities and the city for the best, most efficient, most aesthetic and least obtrusive use of the public rights-of-way, consistent with safety, and to minimize traffic and other disruptions including street cuts.
(c) Each public utility shall participate in joint planning, construction and advance notification of public rights-of-way work, including coordination and consolidation of street cut work and participation in the monthly Utility Coordinating Committee meeting conducted by the city, excepting such work performed in an emergency or other exigent circumstance.
(d) Each public utility shall be a member of the Indiana Underground Plant Protection Service or other so designated underground reporting service(s) so as to be aware of any excavations scheduled in the vicinity of their facilities. In no case will the city be responsible for notifying a utility of any excavation permits issued by the city that could potentially conflict with the utility's facilities.
(e) All utility installations permitted under this chapter shall, upon demand of the Board of Public Works or their authorized representative, be relocated or lowered if required by the city to avoid potential conflicts with a proper governmental use of a street, alley, sidewalk or other public place, excluding private projects which are fully or partially publicly funded. All expenses incurred in relocating utility facilities shall be paid by the public utility.
(f) Should any utility fail, after notice, to remove or rearrange any utility facilities located within the rights-of-way at the Board of Public Works request, the city may, at its option and in addition to the imposition of any penalties or other remedies hereunder, undertake or cause to be undertaken, such necessary removal or rearrangement. The city shall have no liability for any damage caused by such removal or rearrangement and the utility shall be liable to the city for all reasonable costs incurred by the city in such removal or rearrangement.
(g) If any public utility, after being afforded a reasonable opportunity for review of construction drawings and plans as supplied by the city for a public improvement project funded in whole or in part by the city, fails to inform the city of potential construction conflicts with that utility's facilities and the conflicts result in increased construction expense to the city, the city shall submit to the public utility an itemized statement of the cost of the increase for the public improvement project attributable to the public utility. The public utility shall, within 30 days after receipt of the statement, pay to the city the entire amount thereof.
(h) The city may, in case of fire, disaster or other emergency, as determined by the city in its reasonable discretion, cut or move any previously permitted public utility facilities located within the rights-of-way, in which event the city shall not be liable therefor to a public utility.
(4) Abandonment. In the event that use of any utility property located within the public rights-of-way is discontinued for a continuous period of 18 months, or any utility facilities have been installed within the public rights-of-way without complying with the requirements of this chapter, a utility shall be deemed to have abandoned such facilities.
(a) The city, upon such terms as it may impose, may give the utility permission to abandon, without removing, any utility property located on public rights-of-way. Unless such permission is granted, a utility shall remove all abandoned property upon written notice from the city and shall restore any affected public rights-of-way to its former state at the time such facilities were installed.
(b) Upon abandonment of any utility property in place, a utility, if required by the city, shall submit to the city a written instrument, satisfactory in form to the city, transferring to the city the ownership of the utility property so abandoned.
(5) City use of utility facilities. The city shall have the right to install and maintain, free of charge, upon any poles and within any underground pipes or conduits or other facilities of any public utility, located within the public rights-of-way, any facilities desired by the city which specifically serve public safety purposes, provided the installation and maintenance of such facilities does not unreasonably burden existing and future operations of the facility owner. Each utility shall cooperate with the city's reasonably disclosed future needs in planning, designing, and constructing utility facilities located in the public rights-of-way so as to accommodate the city's public safety facilities. The city shall pay the constructing utility all incremental costs associated with such planning, designing, and construction of the additional capacity necessary to accommodate the city's facilities.
(6) Insurance. A public utility shall take out, pay for and maintain during the period in which a permit is in effect, a policy of public liability and property damage insurance protecting permittee, permittee's agents and employees against any liability, injury or death sustained or suffered by the public or damage to public property of the public by reason of the work carried out under the permit. Each public utility shall obtain and maintain, at the utility's sole expense, with financially reputable insurers which are licensed to do business in all jurisdictions where any work is performed, naming the city as additional insured, not less than the following insurance:
(a) Worker's compensation as provided for under any Worker's compensation or similar law in the jurisdiction where any work is performed with an employer's liability limit per Indiana State statute.
(b) Commercial general liability, including coverage for contractual liability and products completed operations liability, with limit of not less than $300,000 combined single limit per occurrence and $5,000,000 aggregate for bodily injury, personal injury and property damage liability, naming the city as an additional insured.
(c) "All Risk" property insurance covering not less than the full replacement cost of city's personal property while on the permittee job site.
(d) Permittee shall, as material condition of a permit, prior to the commencement of any work and prior to any renewal thereof, deliver to the city a certificate of insurance, satisfactory in form and content to the city, evidencing that the above insurance is in force and will not be cancelled or materially altered without first giving the city 30 days prior written notice.
(7) If required on the face thereof, the permit shall not be effective for any purpose unless and until the permittee files with the Risk Management Department a corporate surety bond or other security approved by the Risk Management Department in the amount specified on the face of the permit, said bond or other security to fully assure the performance by the permittee of all obligations imposed upon the permittee under the provisions of the permit and this chapter.
(L) Liability of city. Except due to negligence by the city, neither the city nor any officer or employee thereof shall be held responsible for any damages caused by any excavations in any rights-of-way made by any person under the authority of a permit issued pursuant to the provisions of this chapter. The permittee shall be solely liable for any damage or loss occasioned by any act or omission occurring in connection with the excavation, and shall fully indemnify, hold harmless and defend the city, its officers and employees from and against any and all suits, actions, judgments, losses, costs, demands, claims, expenses (including attorney's fees), damages, and liabilities of every kind to which the city, its officers or employees may be subjected for injury of any type, death or property damage arising from or connected with any such act or omission. The city shall promptly notify a permittee, at the address set forth in the permit, of any claim or suit served upon the city and alleging negligent or wrongful conduct by the permittee in connection with an excavation or use of rights-of-way.
(M) Severability. Should any part of this chapter be declared invalid by a court of competent jurisdiction, the remaining provisions of this chapter shall remain in full force and effect.
(Ord. G-24-98, passed 6-9-98; Am. Ord. G-22-02, passed 8-13-02) Penalty, see § 99.999