§ 32-29. Work in the right-of-way.

(a)

Conditions governing performance.

(1)

Except in cases of an emergency or with approval of the unified government engineer, no right-of-way work may be done when conditions are unreasonable for such work.

(2)

A permittee shall not at any one time open or encumber more of the right-of-way than shall be reasonably necessary to enable the permittee to complete the project in the safest and most expeditious manner.

(3)

A permittee shall not permit such an excavation to remain open longer than is necessary to complete the repair or installation.

(4)

The permittee shall perform work on the right-of-way at such times that will allow the least interference with the normal flow of traffic and the peace and quiet of the neighborhood. Except with the written approval of the unified government engineer, nonemergency work shall be restricted as follows:

a.

On arterial and collector streets may not be performed during the hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m.

b.

On any street may not be performed at night or on weekends.

(5)

Right-of-way and street closure.

a.

Whenever a ROW-user shall excavate or disrupt any part of the right-of-way, it shall be its duty to maintain an adequate passage for vehicles and pedestrians across or around the excavation until it is backfilled as specified, unless the unified government engineer has issued a street closure permit.

b.

Any ROW-user who for any reason excavates or disrupts the right-of-way and leaves any material, debris, or equipment in the right-of-way shall cause the site to be enclosed and properly secured with good substantial and sufficient barricades, drums, plates, warning lights, and orange safety fencing material as required by local, state, and federal laws or regulations or by the conditions contained in the right-of-way permit.

c.

The unified government engineer may close any street or any part of it when he deems it necessary to accommodate work in the right-of-way, for the protection of public health or safety, or because of other special condition.

d.

A permittee shall notify the unified government no less than seven working days in advance of any excavation in or disruption of the right-of-way which requires street closure or which reduces traffic flow to less than two lanes of moving traffic. Depending on the size and complexity of the project and in the reasonable discretion of unified government engineer, more than seven working days may be required for the to accommodate any work in the right-of-way.

e.

A permittee who requires a full street closure must obtain a street closure permit in addition to the right-of-way permit. An additional fee may be charged in an amount to be set by the county administrator.

(6)

Traffic control.

a.

When they are working in or disrupting the right-of-way, all ROW-users shall be responsible for traffic control in accordance with the Manual on Uniform Traffic Control Devices (MUTCD), with any regulations adopted pursuant to this article, and with any requirements contained in their right-of-way use permit.

b.

All work performed in the right-of-way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected at the permittee's expense. Such signage shall be in conformance with the MUTCD, unless otherwise agreed to by the unified government.

(7)

Any permittee found to be working without providing required safety and traffic control measures will be directed to stop work and shall stop work.

(8)

Loading or unloading of vehicles adjacent to a work area is prohibited unless specifically authorized by permit.

(9)

Any vehicle or mobile equipment used by a permittee in connection with excavation of, disruption of, or any work in the right-of-way shall be clearly identified with the name of the permittee or the person doing the work painted or otherwise durably marked on both sides of the vehicle or equipment, in plain letters not less than two inches high and with not less than one-quarter-inch stroke.

(10)

A permittee shall not disrupt a right-of-way such that the natural free and clear passage of water through the gutters or other waterways is interfered with.

(11)

In the event the ROW-user severely disturbs or damages any tree in the right-of-way, including its root structure, the ROW-user will be required to remove and replace the tree at the ROW-user's cost and to reimburse the owner of the tree for the difference in value between the tree removed and the tree replaced. Valuation will be determined by a degreed forester or an arborist certified by the International Society of Aboriculture (ISA) using the ISA guidelines. Further, in review of the ROW-user's plan, the unified government engineer, at his discretion, may require the ROW-user to directionally bore around any tree in the right-of-way.

(12)

Permittees must comply with all regulations adopted pursuant to this article.

(13)

A permittee shall immediately notify the owner of any facilities damaged by the permittee's work. The permittee shall not make or attempt to make repairs, relocation, or replacement of damaged or disturbed underground facilities without the approval of the owner of the facilities.

(14)

All work done by the permittee shall be done in accordance with the technical provisions and standard drawings and the technical standards required by this article.

(15)

The unified government engineer may inspect the permitted work at any time to ensure that all requirements of the permit are being met, and the permittee shall provide access to the unified government engineer for such purpose.

(16)

The unified government engineer may order the immediate cessation of any work that poses a serious threat to the life, health, safety, or well-being of the public, and the permittee shall comply with any such stop work order. The unified government engineer or any unified government inspector may issue a citation to the permittee for any violation of this article.

(17)

The permittee shall notify the unified government engineer upon completion of its work.

(18)

The permittee shall remove all debris and otherwise leave the area in as clean a condition as it was before the work was begun.

(19)

Following completion of permitted work for construction after the date of this article, the permittee shall maintain accurate records and as-built drawings, depicting the location of all facilities constructed pursuant to each permit and shall provide them to the unified government engineer upon request. The unified government is entitled to rely on the as-built records of the service provider's facilities in connection with public improvements.

(20)

Prior to commencement of work, permittees shall notify all residents, property owners, and operators of businesses affected by such work in accordance with regulations adopted pursuant to this article.

(21)

Prior to the commencement of any excavation, permittees shall identify and locate underground facilities according to the state one-call system, shall notify affected utilities, and shall otherwise comply with the system's requirements. A permittee shall be liable for any damages to underground facilities due to excavation performed prior to obtaining location of such facilities or for any damage to underground facilities that have been properly identified prior to excavation.

(b)

Liability insurance, performance and maintenance bond requirement.

(1)

The permittee shall file with the unified government evidence of comprehensive general and automobile liability insurance with an insurance company admitted to do business in the state. The general liability limit will be not less than $1,000,000.00 per occurrence and $2,000,000.00 in aggregate. The automobile liability limit will be not less than $1,000,000.00 combined single limit. The insurance will protect the permittee and the unified government from and against all claims by any person whatsoever for loss or damage from personal injury, bodily injury, death, or property damage to the extent caused or alleged to have been caused by the negligent acts or omissions of the permittee, its employees, agents, or subcontractors.

(2)

The permittee shall at all times during the term of the permit and for two years thereafter maintain a performance and maintenance bond in a form approved by the chief counsel. The amount of the bond will be $5,000.00 or the value of the restoration, whichever is greater, for a term consistent with the term of the permit plus two additional years, conditioned upon the permittee's faithful performance of the provisions, terms, and conditions contained in this article. An annual bond in an amount of $250,000.00, automatically renewed yearly during this period, shall satisfy the requirement of this section. In the event the unified government shall exercise its right to revoke the permit as granted herein, then the unified government shall be entitled to recover under the terms of the bond the full amount of any loss occasioned.

(3)

When a right-of-way permit is requested for purposes of installing additional facilities and any bond on file is reasonably determined to be insufficient, the posting of an additional or larger bond for the additional facilities may be required.

(4)

No performance and maintenance bond or liability insurance will be required:

a.

Of the unified government or the city board of public utilities (BPU), if their own employees are performing the work;

b.

Of the state, if its own employees are performing the work;

c.

Of any residential property owner for work in the right-of-way adjacent to his residence, if a contractor is not doing the work. If a contractor is performing the work for the unified government or the BPU, the state, or such property owner, such contractor must comply with the bond and insurance requirements set out in this article.

d.

No performance and maintenance bond or liability insurance will be required for permits issued for driveway replacement or landscaping work such as irrigation systems and tree planting.

(c)

Right-of-way restoration and guarantee.

(1)

All earth, materials, sidewalks, paving, crossing, utilities, public improvement or improvements of any kind damaged or removed by the permittee shall be fully repaired or replaced promptly by the permittee at its sole expense and to the reasonable satisfaction of the unified government within the dates as specified in the permit. However, in the event of circumstances beyond the control of the permittee or when work was prohibited by unseasonable or unreasonable conditions, the county engineer may extend the date for completion of the project upon receipt of a supplementary application for a permit extension.

(2)

After any excavation, construction, or disruption, at its own expense, the permittee shall restore all portions of the right-of-way to the standards published in the technical provisions and standard drawings. If no standards are published for the restoration, the permittee shall restore the right-of-way to the same condition or better condition than it was prior to the excavation, which includes replacing brick sidewalks with same or like materials. The unified government engineer, or their designee, has the authority to inspect the repair, replacement, or restoration of the right-of-way, and, if necessary, to require the permittee to do additional repair, replacement, or restoration, or require a performance bond if deemed necessary. Notice of the unsatisfactory restoration and the deficiencies found will be provided to the permittee and a reasonable time not to exceed seven days will be allowed for the permittee to correct the deficiencies.

(3)

In addition to repairing its own street cuts, the permittee must restore any area within five feet of the new street cut including the pavement and its subbase, curbs and gutters, and sidewalks, unless the unified government engineer has waived such requirement in writing.

(4)

If, in the judgment of the unified government engineer, the permittee fails in a timely manner to restore the right-of-way, the unified government may serve written notice upon the permittee and its surety that, unless within five days a satisfactory arrangement can be made for the proper restoration of the right-of-way, the surety shall have the right to take over and complete the restoration. If the surety does not commence performance within seven days from the date of notice, the unified government may complete the restoration by contract or otherwise. The permittee and its surety shall be liable to the unified government for all cost incurred by the unified government in completing the restoration.

a.

Upon determination by the unified government engineer that the failure to repair, replace or restore right-of-way creates a threat to public safety, all such repair or replacement shall be corrected within 24 hours of notice from the unified government, or it will perform the restoration work and prosecute same to completion, by contract or otherwise.

b.

Upon determination by the unified government engineer that the failure to repair, replace or restore right-of-way creates an immediate threat to public safety, all such repair or replacement shall be corrected within one hour of notice from the unified government, or it will perform its own restoration work and prosecute same to completion, by contract or otherwise.

c.

The ROW-user and its surety shall be liable to the unified government for its actual costs of such restoration, including the value of any time or overtime incurred through the labor of unified government employees, the value of the use of unified government equipment, and the cost of materials used in the restoration project.

(5)

The permittee warrants and guarantees for a period of 24 months that the excavation and restoration is free from all defects due to faulty materials or workmanship, and the permittee shall promptly make corrections as may be necessary by reason of such defects and shall promptly make repairs of any damage to other improvements, including damage to adjacent existing improvements, utilities, and pavement, and adjacent vegetated areas, including depressions from settling resulting from such defects. The unified government will give written notice to the permittee of observed defects with reasonable promptness. If for any reason the permittee shall fail to make repairs within ten days after the date such notice is served upon the permittee, the unified government shall have the right and authority to correct or cause the correction of the defects, including that which may be necessary by said defects, and may charge the permittee for all costs thereby incurred. The maintenance bond shall remain in full force and effect through the guarantee period.

(6)

Payment of a excavation fee shall not relieve the permittee of the obligation to complete the necessary right-of-way restoration.

(Code 1988, § 32-29; Ord. No. O-104-00, § 9, 11-16-2000; Ord. No. O-114-00, §§ 7—9, 12-21-2000; Ord. No. O-16-03, §§ 8—11, 5-1-2003; Ord. No. O-63-17 , § 1, 11-16-2017)