(a) Permit Required. It shall be unlawful for any person, business, utility, or entity to cut, dig up, excavate, tunnel under, undermine, or in any manner damage (collectively "right-of way disturbance") any roadway, alley, street, sewer, sidewalk, or right-of-way (collectively "rights-of way") for any purpose, or to place equipment upon or deposit or leave upon any right-of-way earth, stone, concrete, asphalt, debris, or any other excavated material obstructing or tending to interfere with the free use of the right-of-way unless such person, utility, business or entity has first obtained a written permit from the City as herein provided.
(b) Permit Application. No permit shall be issued unless a written application is submitted to the City's Community Development Services Department, Engineering Division, signed by a person or an authorized representative of an entity desiring to make a right-of-way disturbance. The application shall state the name and address of the applicant; the nature, location and purpose of the right-of-way disturbance; the date of requested commencement; date of completion of the work, and the list of contractors/subcontractors hired to perform the work. If, in the opinion of the Community Development Services Department or its designee, the proposed right-of-way disturbance will affect the use of the abutting or adjoining properties, the applicant, at applicant's sole expense, shall notify the affected property owners or tenants of the proposed work to be done. As used in this chapter, the term "permittee" shall mean the person or entity to whom a permit is issued, as well as the person owning the facility or installation for which the permit is issued. The permittee shall be responsible to comply with all current federal, state, and local laws, regulations and requirements. The Community Development Services Department may impose reasonable conditions upon the issuance of the 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.
(c) Commencement of Work; Permit Expiration. Work for which a permit has been issued shall commence at the date indicated on the permit. If not so commenced, the permit shall automatically terminate. Unless an extension of time is obtained pursuant to this section, every permit issued hereunder shall expire at the end of the period of the time specified in the permit.
(d) Permit Fees. Prior to permit issuance, an applicant shall pay the following nonrefundable permit/review fee depending on the type of right-of-way disturbance:
Public roadway excavation/cut: $175.00 per cut
Non-roadway excavation/cut: $100.00 per cut
Push or bore under public roadway: $175.00 per bore
Push/bore under public roadway
with three lanes or more: $175.00 per lane
with three lanes or more: $175.00 per lane
Public sidewalk disturbance: $50.00 per cut
Placement/removal of poles/overhead lines: $30.00 per pole
Open linear cut/bore $1.00 per lineal foot
All other disturbances: $25.00
All permit fees collected under this section will be receipted into the General Fund and will be used to offset the cost of controlling and managing the public rights-of-way.
(e) Security Required of Permit Applicants. The following shall be required of each applicant to obtain a permit:
(1) Every applicant shall post with the Community Development Services Department a performance security in the form of an individual or blanket bond naming the City as obligee, or an irrevocable letter of credit signed by a bank officer naming the City as sole beneficiary, to be honored upon presentment. Such security shall remain with the City until the completion and acceptance of the work performed and the posting of a maintenance bond or security as hereafter set out. Furthermore, said performance security shall not be released without a statement from the Community Development Services Department or its designee indicating that the work is complete.
(2) A performance security for a public roadway excavation/cut or push/bore under a public roadway shall be in an amount of Fifteen Thousand Dollars ($15,000.00) or as otherwise prescribed by applicable law. Security for all other right-of-way disturbances shall be in an amount not less than One Thousand Five Hundred Dollars ($1,500.00). In the event that a cut or excavation is within five feet of the pavement and/or runs lengthwise along such street, the applicant shall be required to post a performance security on the basis of $10 per square foot of pavement cut or $5 per square foot if outside of the actual pavement; provided, however, the performance security shall be in an amount not less than Two Thousand Dollars ($2,000.00). If applicant is using sub-contractors to complete the work specified in the permit, all such sub-contractors must meet the same security requirements as outlined herein.
(3) Said performance security shall be released only after the completion of the work, inspection and approval by the Community Development Services Department and the posting of a maintenance bond or security in the amount hereafter set out. Such approval shall be based on the requirement that the City's property disturbed be repaired to as good or better condition than was its condition prior to work's commencement, and in compliance with the city standards, and upon the further requirement that the work shall be in conformance with the stated conditions of the permit.
(4) A maintenance security required under this section shall be equal to the initial performance security amount. Said maintenance security shall be posted with the Community Development Services Department and shall be for a period of three (3) years from the date of work approval by the Community Development Services Department for a public roadway excavation/cut or push/bore under a public roadway disturbance and six (6) months for all other types of right-of-way disturbances. Said maintenance security shall be released by the Community Development Services Department at the required period's expiration and upon permittee's request. Performance security posted by an applicant can be used as a maintenance security.
(f) Insurance. A permittee, prior to the commencement of work hereunder, shall obtain general liability coverage in effect from the effective date of the right-or-way disturbance permit and until the applicable statute of limitations has run in an amount not less than One Million and no/100 Dollars ($1,000,000.00) ("Coverage Period"). Proof of General Liability Insurance shall be filed with the Community Development Services Department prior to or with the application for the permit.
(g) Rights-of-Way Restoration.
(1) The work to be done under the permit, and the restoration of the rights-of-way as required herein, must be completed within the dates specified in the permit. If work is performed between November 1 st and March 1 st, restoration of vegetation may be postponed until favorable weather conditions, but must commence no later than April 1. 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 as near as is reasonably possible to the right-of-way's original condition or better and must inspect the area of the work and use reasonable care to maintain the same condition for 12 months thereafter, natural wear excepted. All materials and methods of restoration, unless specifically stated otherwise in applicable City ordinance(s), policies, or regulations, shall be in accordance with current Indiana Department of Transportation Standard Specifications. Any waste generated during performance of work shall be disposed of following all applicable City ordinances, federal, and state statutes. Under no circumstances is debris to be left in the right- of- way.
(2) If the permittee fails to restore the rights-of-way in the manner and to the condition required by this section, the permittee, upon notification from the City Engineer or his/her authorized representative, and within a reasonable and acceptable time frame, not to exceed 30 days, shall correct all restoration work to the extent necessary. If the permittee does not perform restoration work to the required standard or within the time frame, the Board of Public Works and Safety may authorize the Street Department to perform the restoration with City resources or hire an independent contractor to perform such 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.
(3) 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 local, state and federal laws.
(4) The Community Development Services Department or its designee may inspect the work-site at any time.
(5) The Board of Public Works and Safety or its authorized representative may order stoppage of work for deviations by the permittee from the permit or permit conditions, or when continuation of work poses a serious threat to the life, health, safety, or well-being of the public.
(6) Steel Plates Requirements. Steel plates may only be utilized to temporarily cover cuts during emergency repairs or repairs expected to take more than one week. The use of steel plates must comply with the following requirements: (1) The Street Department must be notified when a steel plate will be utilized; (2) Plates should be marked with the owners name or other identifier readily visible on each plate; (3) Plates must be tacked down on all 4 comers with hot mix asphalt and at least one foot long ramp provided to reduce the transition from pavement onto the plate; (4) Plates remaining in the roadway for more than 7 days must be countersunk to allow for a smooth transition; (5) From December 1 through April 1, countersinking of all plates is required regardless of the duration of the work.
(h) Scope of Permit. The permit is valid only for the area of the right-of-way specified therein. Except in case of an emergency, no permittee may perform any work outside the area specified in the permit. 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. The 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 the permittee is unable to complete the work within the specified time, he/she shall, prior to the permit’s expiration date, present to the Community Development Services Department a request for an extension of time, setting forth therein the reasons for the requested extension.
(i) Weather Conditions. Except in case of an emergency, or with the approval of the Community Development Services Department or its authorized representative, no work shall be performed when weather conditions make such work unsafe to any person or if conditions exist that, if such work were performed, would cause degradation or damage to the rights-of-way that would not normally occur if such conditions did not exist.
(j) Noise, Dust and Debris. Each permittee shall conduct and carry out right-of-way disturbance work in such manner as to avoid unnecessary inconvenience and annoyance to the general public and property occupants. The permittee shall take appropriate measures to reduce to the fullest extent practicable noise, dust and debris. Except in emergency situations hereunder, the permittee shall not perform any work during the hours of 9:00 p.m. and 7:00 a.m. unless express written permission by the Board of Public Works and Safety or its designee has been given.
(k) Emergency Situations. In the event of emergency in which a sewer main, water main, pipe, conduit or utility (collectively “facilities”) in or under any road breaks, bursts or otherwise is in such condition as to immediately endanger the property, life, health or safety of individuals, the person or entity owning or controlling such facility, without first applying for and obtaining a right-of-way disturbance permit hereunder, shall immediately take proper emergency measures to cure or remedy such dangerous conditions. However, such person or entity owning or controlling such facility shall apply for a right-of-way permit 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 not later than the end of the next business day, and shall not proceed with permanent repairs without first obtaining the permit hereunder. Additionally, a person or entity responding to the emergency shall notify an authorized City representative by calling an emergency line at 1-317-883-8081. Such person or entity shall leave a voicemail if representative cannot be reached or the emergency occurred outside of regular business hours. The voicemail shall include the following information: (1) Caller’s identification and contact, including callback, information; (2) Nature of the emergency, including information regarding any necessary street closures or affected traffic; (3) Exact location of the emergency; (4) Scope of expected repairs; (5) Contact information for the person or entity owning facilities or equipment that caused the emergency; (6) Identification and contact information for the contractor hired to fix the emergency; and (7) Approximate time required to fix the emergency. In the event that the City becomes aware of the 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 City 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.
(l) Denial of Permit. Except in the case of an emergency or when required by law, the Community Development Services Department may deny issuing a permit to any applicant who has failed within the past twelve months to comply or is presently not in full compliance with the requirements of this chapter; 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 scheduled event. In determining whether a conflict or interference exists, the Community Development Services Department or its designee 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. The Community Development Services Department or its designee may deny a permit 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 Community Development Services Department or its designee, 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.
(m) Work Done Without a Permit. Except in the case of an emergency, any person or entity who performs right-of-way disturbance work without a permit must subsequently obtain a permit, pay applicable permit fee, pay an applicable fine as outlined in the fine schedule below, correct any damage to the right-of-way as specified in this section, post applicable maintenance bond or acceptable security, and otherwise comply with all of the requirements of this section.
Fine schedule for doing work without a permit per incident:
First violation: $100.00
Second violation: $500.00
Third and any subsequent violation: $1,000.00
(n) 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 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) Violation of any material provision of the permit;
(2) An evasion or attempt to evade any material provision of the permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens;
(3) Failure to maintain the required bonds or insurance;
(4) Failure to complete the work in a timely manner; or
(5) Failure to correct a condition indicated on an order issued pursuant to this chapter.
If the Community Development Services Department or its authorized representative determines that the permittee has committed a substantial breach of any applicable law or any condition placed on the permit, the Community Development Services Department or its representative shall make a written demand upon the permittee to remedy such violation. An e-mail or other electronic communication shall satisfy this requirement. 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 Community Development Services Department or its authorized representative to place additional or revised conditions on the permit. Within 48 hours of receiving notification of the breach, the permittee shall contact the Community Development Services Department or its authorized representative with a plan, acceptable to the Department, for correction of the breach. The permittee’s failure to submit an acceptable plan or to reasonably implement the approved plan shall be cause for immediate revocation of the permit.
If a permit is revoked, the permittee shall reimburse the City for reasonable costs, including restoration costs, the costs of collection and reasonable attorneys’ fees, if authorized by applicable law, incurred in connection with such revocation.
(o) Liability of City. Except due to gross 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 section. 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.
(p) Violations and Penalties. In addition to any available legal remedies, any person or entity violating any provision(s) of this section, for which no specific penalty is otherwise provided, shall be fined, upon proper determination, notice, and opportunity to correct, by the City Engineer or his/her designee in an amount of Two Hundred Fifty Dollars ($250.00) for each day such violation is committed or permitted to continue.
(q) Appeal of Violation Determinations. All persons and entities found to be violating the provisions of this section may appeal such determination to the Board of Public Work and Safety. The Board shall hear all appeals at its next regularly scheduled meeting. The Board may confirm, reverse or modify such decision or action. The order of the Board shall be final and appealable to the court of competent jurisdiction within thirty (30) days from the issuance date. (Code 1968, § 3.06(a)-(c); 1983 Greenwood Municipal Code, § 15-26) (Ord. No. 18-36, § 1, 11-7-18; Ord. No. 20-48, §§ 1, 2, 1-4-21)