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(a) Scope. It is unlawful for any permittee to make, to cause, or permit to be made any excavation in the public right-of-way outside the boundaries, times, and description set forth in the permit.
(b) Rock Wheel and Trenchless Technology. Use of a rock wheel or trenchless technology to excavate in the public right-of-way is unlawful without prior written approval of the Director.
(c) Single Excavation Maximum of 1,200 Feet. No single excavation site shall be longer than 1,200 feet in length at any time except with the prior written approval of the Director.
(Added by Ord. 341-98, App. 11/13/98)
Each owner and its agent shall be subject to requirements for excavation sites that are set forth in Department orders or regulations. Such orders or regulations shall include, but not be limited to, the following measures:
(a) Protection of the Excavation. Each owner and its agent shall cover open excavation with steel plates ramped to the elevation of the contiguous street, pavement, or other public right-of-way, or otherwise protected in accordance with guidelines prescribed by the Department.
(b) Housekeeping and Removal of Excavated Material. Each owner and its agent shall keep the area surrounding the excavation clean and free of loose dirt or other debris in a manner deemed satisfactory to the Department. Excavation sites shall be cleaned at the completion of each work day. In addition, the owner and its agent shall remove all excavated material from the site of the excavation no later than the end of each work day.
(c) Storage of Materials and Equipment. Materials and equipment that are to be used for the excavation within seven calendar days may be stored at the site of the excavation, except that fill material, sand, aggregate, and asphalt-coated material may be stored at the site only if it is stored in covered, locked containers.
(d) Hazardous Material. Each owner and its agent shall be subject to hazardous material guidelines for date collection; disposal, handling, release, and treatment of hazardous material; site remediation; and worker safety and training. The Department, in consultation with the Department of Public Health, shall develop, prescribe, and update such hazardous material guidelines. The guidelines shall require the owner and its agent to comply with all federal, state, and local laws regarding hazardous material. For purposes of this subsection, "hazardous materials" shall mean any gas, material, substance, or waste which, because of its quantity, concentration, or physical or chemical characteristics, is deemed by any federal, state, or local governmental authority to pose a present or potential hazard to human health or safety or to the environment.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 33-02, File No. 020051, App. 3/28/2002)
When the Director has determined that a person has violated this Article or that an excavation poses a hazardous situation or constitutes a public nuisance, public emergency, or other threat to the public health, safety, or welfare, or when the Director determines that there is a paramount public purpose, the Director is authorized to issue a stop work order, to impose new conditions upon a permit, or to suspend or revoke a permit by notifying the permittee of such action in a written, electronic, or facsimile communication.
(Added by Ord. 341-98, App. 11/13/98)
(a) Restoration. In any case in which the sidewalk, street, or other public right-of-way is or is caused to be excavated, the owner and its agent shall restore or cause to be restored such excavation in the manner prescribed by the orders, regulations, and standard plans and specifications of the Department. At a minimum, trench restoration shall include resurfacing to a constant width equal to the widest part of the excavation in accordance with the following diagram; provided, however, that the width of resurfacing need not exceed 13 feet. Notwithstanding the trench restoration provision set forth herein, if 25 percent of more of the length of any block is excavated, then all affected lanes for the entire block shall be restore.
(b) Backfill, Replacement of Pavement Base, and Finished Pavement. Activities concerning backfilling, replacement of pavement base, and finished pavement shall be performed in a manner specified by the orders, regulations, and standard plans and specifications of the Department. In addition, these activities shall be subject to the following requirements:
(i) Backfill. Each excavation shall be backfilled and compacted within 120 hours from the time the construction related to the excavation is completed.
(ii) Replacement of pavement base. Replacement of the pavement base shall be completed within 120 hours from the time the excavation is backfilled.
(iii) Finished pavement. Finished pavement restoration shall be completed within 120 hours of replacement of the pavement base.
(c) Modification to Requirements. Upon written request from the permittee, the Director may grant written approval for modifications to the requirements of Subsection (b).
(d) Incomplete Excavation; Completion by the Department. In any case where an excavation is not completed or restored in the time and manner specified in the permit, this Article, or the orders, regulations, and standard plans and specifications of the Department, the Director shall order the owner or its agent to complete the excavation as directed within 24 hours. If the owner or its agent should fail, neglect, or refuse to comply with the order, the Director may complete or cause to be completed such excavation in such manner as the Director deems expedient and appropriate. The owner or its agent shall compensate the Department for any costs associated with the administration, construction, consultants, equipment, inspection, notification, remediation, repair, restoration, or any other actual costs incurred by the Department or other agencies, board, commissions, or departments of the City that were made necessary by said excavation. The cost of such work also may be deducted from the permittee's deposit pursuant to Section 2.4.46(c). The Director's determination as to the cost of any work done or repairs made shall be final. In addition, the owner, its agent, or other responsible party may be subject to those enforcement actions set forth in Subarticle VII.
(e) Subject to the limitation set forth in Section 2.4.70, completion of an excavation or restoration by the Department in accordance with Subsection (d) shall not relieve the owner or its agent from liability for future pavement failures at the excavation site.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 33-02, File No. 020051, App. 3/28/2002; Ord. 131-07, File No. 070466, App. 6/15/2007)
Each owner and its agent that excavates or causes to be made an excavation in the public right-of-way shall be responsible to maintain, repair, or reconstruct the site of the excavation so as to maintain a condition acceptable to the Director until such time as the public right-of-way is reconstructed, repaved, or resurfaced by the Department.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 33-02, File No. 020051, App. 3/28/2002)
In the event that subsurface material or pavement over or immediately adjacent to any excavation should become depressed, broken, or fail in any way at any time after the excavation has been completed, the Director shall exercise his or her best judgment to determine the person(s) responsible, if any, for the failure in the subsurface or surface of the public right-of-way and shall designate such person as the responsible party. The Director shall notify said person(s) of the condition, its location, and the required remedy, and such person(s) shall repair or restore, or cause to be repaired or restored, such condition to the satisfaction of the Director within 72 hours of the notification. The Director may extend the time for the responsible party to repair or restore the affected public right-of-way.
(Added by Ord. 341-98, App. 11/13/98)
(a) In the event that any person(s) fails, neglects, or refuses to repair or restore any condition pursuant to the Director's notice as set forth in Section 2.4.71, the Director may repair or restore, or cause to be repaired or restored, such condition in such manner as the Director deems expedient and appropriate. The person(s) identified by the Director as the responsible party shall compensate the Department for any costs associated with the administration, construction, consultants, equipment, inspection, notification, remediation, repair, restoration, or any other actual costs incurred by the City that were made necessary by reason of the repair or restoration undertaken by the Department. The cost of such work also may be deducted from the permittee's deposit pursuant to Section 2.4.46(c). The Director's determination as to the cost of the repair or restoration performed shall be final. In addition, the responsible party may be subject to those enforcement actions set forth in Subarticle VII.
(b) Subject to the limitation set forth in 2.4.70. repair or restoration by the Department in accordance with this Section shall not relieve the person(s) from liability for future pavement failures at the site of the repair or restoration.
(Added by Ord. 341-98, App. 11/13/98)
(a) If, in the judgment of the Director, the site of an excavation is considered hazardous or if it constitutes a public nuisance, public emergency, or other imminent threat to the public health, safety, or welfare that requires immediate action, the Director may order the condition remedied by a written, electronic, or facsimile communication to the person(s) responsible, if any, for remedying the condition and shall designate such person as the responsible party.
(b) If the responsible party is inaccessible or fails, neglects, or refuses to take immediate action to remedy the condition as specified in said communication, the Director may remedy the condition or cause the condition to be remedied in such manner as the Director deems expedient and appropriate. The person(s) identified by the Director as the responsible party shall compensate the Department for any reasonable costs associated with the administration, construction, consultants, equipment, inspection, notification, remediation, repair, restoration, or any other actual costs incurred by the Department or other agencies, boards, commissions, or departments of the City that were made necessary by reason of the emergency remediation undertaken by the Department. The cost of such work also may be deducted from the permittee's deposit pursuant to Section 2.4.46(c). The Director's determination as to the cost of any remediation performed shall be final. In addition, the responsible party may be subject to those enforcement actions set forth in Subarticle VII.
(c) Subject to the limitation set forth in Section 2.4.70, remediation by the Department in accordance with this Section shall not relieve the person(s) from liability for future pavement failures at the site of the remediation.
(Added by Ord. 341-98, App. 11/13/98)
(a) The Director shall have authority to enforce this Article against violations thereof. Upon the Director's determination that a person has violated any provision of this Article, the standard plans and specifications, notices, orders, or regulations of the Department; any term, condition, or limitation of any permit; or is subject to any outstanding fees, deposits, or other charges, the Director shall serve notice on said person to abate the violation. Any person whom the Director determines to be a responsible party may be subject to any or all of the enforcement mechanisms specified in Section 2.4.81, 2.4.82, and 2.4.83.
(b) Municipal excavators are not subject to the penalties and fines specified in Sections 2.4.82 and .83; however, municipal excavators that violate Article 2.4 may be subject to administrative penalties and costs as specified in Section 2.4.81. The Director is empowered to charge municipal excavators with such penalties and costs, abate violations by municipal excavators, or both. The Director may assess such penalties, costs, and abatement charges against the deposit or budget of the municipal excavator, take other appropriate action against such excavator within the Director's authority, or both.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 239-99, File No. 991177, App. 9/3/99; Ord. 33-02, File No. 020051, App. 3/28/2002)
(a) Notice of Violation. Except as specified in Subsections (1) through (3) below, the Director shall notify the responsible party for a violation that he or she has seventy-two (72) hours to correct or otherwise remedy the violation or be subject to the imposition of administrative penalties. The Director's notice of violation shall be a written, electronic, or facsimile communication and shall specify the manner in which the violation shall be remedied.
(1) For those violations subject to the incomplete excavation provisions of Section 2.4.55(d), the responsible party shall have twenty-four (24) hours to remedy the violation or be subject to the imposition of administrative penalties.
(2) For violations that create an imminent danger to public health, safety, or welfare or are otherwise subject to Section 2.4.73, the Director shall notify the responsible party to immediately remedy the violation or be subject to the imposition of administrative penalties.
(3) For violations that cannot be cured within seventy-two (72) hours, including, but not limited to, excavating without a permit, the Director shall notify the responsible party of the Director's imposition of administrative penalties pursuant to Subsection (e).
(b) Amount of Administrative Penalties. Administrative penalties assessed pursuant to Subsection (a) shall not exceed one thousand dollars ($1,000) per day, per violation commencing with the first day of the violation. Notwithstanding the penalty limitation set forth above, a person who excavates without a valid permit may be assessed a penalty not to exceed ten thousand dollars ($10,000.00) per day, per violation commencing with the first day of the violation. In assessing the amount of the administrative penalty, the Director may consider any one or more of the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the wilfulness of the violator's misconduct, and the violator's assets, liabilities, and net worth.
(c) Enforcement Costs. In addition to the administrative penalty assessed pursuant to Subsection (a), the Director may assess enforcement costs to cover the reasonable costs incurred in enforcing the administrative penalty, including reasonable attorneys' fees. Any enforcement costs imposed and recovered shall be distributed according to the purpose for which the Director imposed them.
(d) Accrual of Penalties and Costs. Penalties and costs assessed under this Section shall continue to accrue against a responsible party until the violation of this Article is corrected or otherwise remedied in the judgment of the Director or the responsible party pays the assessed penalties and costs. If such penalties and costs are the subject of a request for administrative review or an appeal, then the accrual of such penalties and costs shall be stayed until the determination concerning the administrative penalties is final.
(e) Notice Imposing Administrative Penalties. If the responsible party fails to remedy the violation within the time specified in the notice of violation or if the violation is incurable pursuant to Section 2.4.81(a)(3), the Director shall notify in writing the responsible party of the Director's imposition of administrative penalties. This notice shall include the amount of the penalties and costs and declare that such penalties and costs are due and payable to the City Treasurer within thirty (30) calendar days. The notice also shall state that the person designated as the responsible party has the right, pursuant to Subsection (g), to request administrative review of the Director's determination as to the designation of the responsible party and the assessment of penalties.
(f) Finality of the Director's Determination and Collection of Assessed Penalties. If no request for administrative review is filed pursuant to Subsection (g), the Director's determination is final. Thereafter, if the penalties and costs are not paid within the time specified in Subsection (e), the Director is empowered to pursue any method of collection of such penalties and costs authorized by local law including, but not limited to deductions of the permittee's deposit pursuant to Section 2.4.46(c).
(g) Administrative Review. Any Person that is designated as the responsible party for a violation or is subject to an administrative penalty may seek administrative review of the designation or the assessment of the penalty or cost within ten (10) calendar days of the date of the notice imposing administrative penalties. Administrative review shall be initiated by filing with the Director a request for review that specifies in detail the basis for contesting the designation of the responsible party or the assessment of the penalty or cost.
(h) Notice for and Scheduling of Administrative Hearing. Whenever an administrative review hearing is requested pursuant to Subsection (g), the Director, within ten (10) calendar days of the date of receipt of the request, shall notify the affected parties of the date, time, and place of the hearing by certified mail. Such hearing shall be held no later than thirty (30) calendar days after the Director received the request for administrative review, unless extended by mutual agreement of the affected parties. The Director shall appoint a hearing officer for such hearing.
(i) Submittals for the Administrative Review Hearing. The parties to the hearing shall submit written information to the hearing officer including, but not limited to, the following: the statement of issues to be determined by the hearing officer and a statement of the evidence to be offered at the hearing.
(j) Conduct of the Administrative Review Hearing. The administrative review hearing is a public hearing and shall be tape recorded. Any party to the hearing may at his or her own expense, cause the hearing to be recorded by a certified court reporter. During the hearing, evidence and testimony may be presented to the hearing officer. Written decisions and findings shall be rendered by the hearing officer within ten (10) calendar days of the hearing. Copies of the findings and decision shall be served upon the parties to the hearing by certified mail. A notice that a copy of the findings and decisions is available for inspection between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday shall be posted at the offices of the Department of Public Works.
(k) Director's Decision on the Hearing Officer's Recommendation. The decision of the hearing officer shall be a recommendation to the Director, and the Director, within five (5) calendar days of receipt of such recommendation, shall adopt, modify, or deny such recommendation. The Director's decision on the hearing officer's recommendation is final. Such decision shall be served upon the parties to the hearing and posted in the same manner as the hearing officer's decision as set forth in Subsection (j). If any imposed administrative penalties and costs have not been deposited at this time, the Director may proceed to collect the penalties and costs pursuant to Subsection (f).
(l) Additional procedures. The Director, by Departmental order, may adopt additional procedures to implement this Section.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 239-99, File No. 991177, App. 9/3/99; Ord. 33-02, File No. 020051, App. 3/28/2002)
(a) The Director may call upon the City Attorney to maintain an action for injunction to restrain or summary abatement to cause the correction or abatement of the violation of this Article, and for assessment and recovery of a civil penalty and reasonable attorney's fees for such violation.
(b) Any person who violates this Article may be liable for a civil penalty, not to exceed $500 for each day such violation is committed or permitted to continue, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the City by the City Attorney in any court of competent jurisdiction. In assessing the amount of the civil penalty, the court may consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the wilfulness of the defendant's misconduct, and the defendant's assets, liabilities, and net worth. The City Attorney also may seek recovery of the attorneys fees and costs incurred in bringing a civil action pursuant to this Section.
(Added by Ord. 341-98, App. 11/13/98)
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