Chapter 11.08 RIGHT-OF-WAY EXCAVATION PERMITS

For the purpose of this chapter, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory.

(1) “Applicant” is any person making written application to the city engineer for an excavation permit hereunder.

(2) “City” is the city of Oak Harbor.

(3) “City council” or “council” is the city council of the city of Oak Harbor.

(4) “City engineer” is the city engineer of the city of Oak Harbor.

(5) “Administrative authority” means the office of the city administrator.

(6) “Construction debris” means and includes mud, dirt, dust, stumps and vegetation, and shall also include all construction materials including, but not limited to, lumber, concrete, sheet rock, masonry, rock, roofing materials, containers and packaging for construction materials and other material used in or arising out of a construction activity.

(7) “Excavation work” is the excavation and other work permitted under an excavation permit and required to be performed under this chapter.

(8) “Permittee” is any person who has been granted and has in full force and effect an excavation permit issued hereunder.

(9) “Person” is any person, firm, partnership, association, corporation, company or organization of any kind.

(10) “Right-of-way” is any street, highway, sidewalk, alley, avenue, easement made to the city for public use, or other public way or public grounds in the city.

(11) “MUTCD” means Manual on Uniform Traffic Control Devices.

(12) “ICOM” means Island County Emergency Services Communication Center. (Ord. 1787 § 2, 2016).

11.08.030 Right-of-way excavation permit.

It shall be unlawful for any person to dig up, break, excavate, tunnel, undermine or in any manner break up any street or to make or cause to be made any excavation in or under the surface of any right-of-way, any earth or other excavated material obstructing or tending to interfere with the free use of the right-of-way, unless such person shall first have obtained a right-of-way excavation permit from the city engineer. (Ord. 1787 § 2, 2016).

11.08.040 Application.

No right-of-way permit shall be issued unless a written application for the issuance of a right-of-way excavation permit is submitted to the administrative authority. The written application shall state the name and address of the applicant, the nature, location and purpose of the excavation, the date of commencement and date of completion of the excavation, and other data as may reasonably be required by the city engineer. The application shall be accompanied by plans showing the extent of the proposed excavation work, the dimensions and elevations of both the existing ground prior to said excavation and of the proposed excavated surfaces, the location of work, and such other information as may be prescribed by the city engineer. (Ord. 1787 § 2, 2016).

11.08.050 Right-of-way permit fees.

A permit fee shall be charged by the city for the issuance of a right-of-way excavation permit which shall be in addition to all other fees for permits or charges relative to any proposed construction work. The right-of-way excavation permit fee shall be per the master fee schedule adopted by resolution of the city council. (Ord. 1787 § 2, 2016).

11.08.060 Surety bond.

Before a right-of-way permit as herein provided is issued, the applicant shall deposit with the city clerk a surety bond in such reasonable amount as set by the city engineer payable to the city. The required surety bond must be:

(1) With good and sufficient surety;

(2) By a surety company authorized to transact business in the state;

(3) Satisfactory to the city attorney in form and substance;

(4) Conditioned upon the permittee’s compliance with this chapter to back fill, restore and place in good and safe condition as near as may be to its original condition, and to the satisfaction of the city engineer, all openings and excavations made in streets, and to maintain any street where excavation is made in as good condition for the period of 24 months after said work shall have been done, usual wear and tear expected, as it was in before said work shall have been done. Any settlement of the surface within said two-year period shall be deemed conclusive evidence of defective back-filling by the permittee. Nothing herein contained shall be construed to require the permittee to maintain any repairs to pavement made by the city if such repairs should prove defective. An annual bond may be given under this provision which shall remain in force for one year conditioned as above, in the amount specified above and in other respects as specified above but applicable as to all excavation work in streets by the principal in such bond during the term of one year from said date. (Ord. 1787 § 2, 2016).

11.08.070 Protective measures – Routing of traffic.

The permittee shall take appropriate measures to assure that during the performance of the right-of-way work traffic conditions remain near normal as practicable and shall be maintained at all times so as to cause as little inconvenience as possible to the occupants of the abutting property and to the general public; provided, that the city engineer may permit the closing of right-of-way to all traffic for a period of time prescribed by him if in his opinion it is necessary. The permittee shall route and control traffic including its own vehicles as directed by the city engineer. A traffic control plan must be submitted and approved by the city engineer before work begins. The following steps shall be taken before any street may be closed or restricted to traffic:

(1) The permittee must receive the approval of the city engineer;

(2) The permittee must notify the ICOM of any street to be closed;

(3) Upon completion of construction work the permittee shall notify the city engineer before traffic is moved back to its normal flow so that any necessary adjustments may be made;

(4) Where flaggers are deemed necessary by the city engineer they shall be furnished by the permittee at its own expense and shall be certified by the state of Washington pursuant to WAC 296-155-305. Through traffic shall be maintained without the aid of detours, if possible. In instances in which this would not be feasible the city engineer will designate detours. The city shall maintain roadway surfaces of existing streets designated as detours without expense to the permittee. In case there are no existing streets the permittee shall construct all detours at the expense of the permittee and in conformity with the specifications of the city engineer.

(5) Traffic control standards shall be in accordance with current MUTCD standards. (Ord. 1787 § 2, 2016).

11.08.080 Clearance for fire equipment.

The excavation work shall be performed and conducted so as not to interfere with access to fire stations and fire hydrants. Materials or obstructions shall not be placed within 15 feet of fire hydrants. Passageways leading to fire escapes or fire-fighting equipment shall be kept free of piles of material or other obstructions. (Ord. 1787 § 2, 2016).

11.08.090 Removal and protection of utilities.

The permittee shall not interfere with any existing utility without the written consent of the city engineer and the utility company or person owning the utility pursuant to Chapter 19.122 RCW. No utility owned by the city shall be moved to accommodate the permittee unless the cost of such work is borne by the permittee. The cost of moving privately owned utilities shall be similarly borne by the permittee unless it makes other arrangements with the entity owning the utility. The permittee shall support and protect all pipes, conduits, poles, wires or other apparatus which may be in any way affected by the excavation work, and do everything necessary to support, sustain and protect them under, over, along or across said work. Existing city owned underground utilities shall be located by pothole where the new underground utility will cross an existing city owned underground utility prior to boring under or over the existing utility. The city engineer or his designated representative shall be on site to visually inspect vertical separation. Horizontal and vertical spacing from existing city owned utilities shall be approved by the city engineer or his designated representative. In case any of said pipes, conduits, poles, wires or apparatus should be damaged, they shall be repaired by the agency or person owning them and the expense of such repairs shall be charged to the permittee, and his or its bond shall be liable therefor. The permittee shall be responsible for any damage done to any public or private property by reason of the damaging of any water lines, sewer, gas pipe, electric conduit or other utility and its bond shall be liable therefor. The permittee shall inform itself as to the existence and location of all underground utilities and protect the same against damage. (Ord. 1787 § 2, 2016).

11.08.100 Protection of adjoining property.

The permittee will notify private property owners adjoining or in proximity to the right-of-way when such property is exposed to the possibility of injury or damage through performance of the project. The permittee shall at all times and at its own expense preserve and protect from injury any adjoining property by providing proper foundations and taking other measures suitable for the purpose. Where in the protection of such property it is necessary to enter upon private property for the purpose of taking appropriate protective measures, the permittee shall obtain a license from the owner of such private property for such purpose. The permittee shall, at its own expense, shore up and protect all buildings, walls, fences or other property likely to be damaged during the progress of the excavation work and shall be responsible for all damage to public or private property or streets resulting from its failure to properly protect and carry out said work.

Whenever it may be necessary for the permittee to trench through any lawn area, the sod shall be carefully cut and rolled and replaced after ditches have been back-filled as required in this chapter. All construction and maintenance work shall be done in a manner calculated to leave the lawn area clean of earth and debris and in a condition as near as possible to that which existed before such work began. The permittee shall not remove even temporarily any trees or shrubs which exist in parking strip areas or easements across private property without first having notified and obtained the consent of the property owner, or in the case of public property, the appropriate city department or city official having control of such property. (Ord. 1787 § 2, 2016).

11.08.110 Sidewalk excavations.

Any excavation made in any sidewalk or under a sidewalk shall be provided with ADA compliant pedestrian access. (Ord. 1787 § 2, 2016).

11.08.120 Protective measures.

The permittee shall erect such fence, railing or barriers about the site of the excavation work as shall prevent danger to persons using the city street or sidewalks, and such protective barriers shall be maintained until the work shall be completed or the danger removed. At dusk, there shall be placed upon such place of excavation and upon any excavated materials or structures or other obstructions to streets suitable and sufficient lights which shall be kept lit throughout the night during the maintenance of such obstructions. It shall be unlawful for anyone to remove or tear down the fence or railing or other protective barriers or any lights provided there for the protection of the public. (Ord. 1787 § 2, 2016).

11.08.130 Attractive nuisance.

The permittee shall not permit to remain unguarded at the place of excavation or opening anything including, but not limited to, machinery, equipment or other device having the characteristics of an attractive nuisance likely to attract undue attention from the public and be hazardous to their safety or health. (Ord. 1787 § 2, 2016).

11.08.140 Care of excavated material.

All material excavated from trenches and piled adjacent to the trench or in any street shall be piled and maintained in such a manner as not to endanger those working in the trench, pedestrians or users of the streets, and so that as little inconvenience as possible is caused to those using streets and adjoining property. Where the confines of the area being excavated are too narrow to permit the piling of excavated material beside the trench, such as might be in the case in a narrow alley, the city engineer shall have the authority to require that the permittee haul the excavated material to a storage site and then rehaul it to the trench site at the time of back-filling. It shall be the permittee’s responsibility to secure the necessary permission and make all necessary arrangements for all required storage and disposal. All stormwater pollution prevention methods (BMPs) shall be in compliance with current Department of Ecology standards. (Ord. 1787 § 2, 2016).

11.08.150 Damage to existing improvements.

All damage done to existing improvements during the progress of the excavation work shall be repaired by the permittee. Materials and workmanship for such repair shall conform with the requirements of any applicable code or ordinance. If upon being ordered the permittee fails to furnish the necessary labor and materials for such repairs, the city engineer shall have the authority to cause said necessary labor and materials to be furnished by the city and the cost shall be charged against the permittee, and the permittee shall also be liable on its bond therefor. (Ord. 1787 § 2, 2016).

11.08.160 Property lines and easements.

Property lines and limits of easements shall be indicated on the plan of excavation submitted with the application for the excavation permit and it shall be the permittee’s responsibility to confine excavation work within these limits. (Ord. 1787 § 2, 2016).

11.08.170 Clean-up.

As the excavation work progresses all streets and private properties shall be thoroughly cleaned of all rubbish, excess earth, rock and other debris resulting from such work. All clean-up operations at the location of such excavation shall be accomplished at the expense of the permittee and shall be completed to the satisfaction of the city engineer. Clean-up operations shall avoid and protect stormwater BMPs, i.e., pervious pavements, bioretention areas, etc. From time to time as may be ordered by the city engineer and in any event immediately after completion of said work, the permittee shall at its own expense clean up and remove all refuse and unused materials of any kind resulting from said work and upon failure to do so within 24 hours after having been notified to do so by the city engineer, said work may be done by the city engineer and the cost thereof charged to the permittee, and the permittee shall also be liable for the cost thereof under the surety bond provided hereunder. (Ord. 1787 § 2, 2016).

11.08.180 Protection of stormwater facilities.

The permittee shall provide for the flow of all water courses, sewers or drains intercepted during the excavation work and shall replace the same in as good condition as it found them or shall make such provisions for them as the city engineer may direct. The permittee shall not obstruct the gutter of any street but shall use all proper measures to provide for the free passage of surface water. The permittee shall implement stormwater BMPs to manage all surplus water, muck, silt, slicking or other run-off from the work area. (Ord. 1787 § 2, 2016).

11.08.190 Breaking through pavement.

Whenever it is necessary to break through existing pavement for excavation purposes, the pavement shall be repaired in accordance with the city of Oak Harbor standard details. (Ord. 1787 § 2, 2016).

11.08.200 Tunnels.

Tunnels under pavements shall not be permitted except by permission of the city engineer. Where pipes or cables are placed under main thoroughfares, concrete streets, state highways, first grade asphalt streets, or wherever designated by the city engineer, such work shall be done by jacking or boring casings under street surfaces and placing said pipes or cables inside of the casing. (Ord. 1787 § 2, 2016).

11.08.210 Back-filling.

Back-filling in any street opened or excavated pursuant to a right-of-way excavation permit issued hereunder shall be compacted in accordance with the city of Oak Harbor’s standard details. Compacting shall be done by mechanical tappers or vibrators, by rolling in layers, or as required due to the soil in question and sound engineering practices generally recognized in the construction industry. Back-filling in pervious areas shall be hydraulically appropriate for the specified road design and be approved by the city engineer. (Ord. 1787 § 2, 2016).

11.08.220 Restoration of surface.

The permittee shall restore the surface of all streets, broken into or damaged as a result of the excavation work, to its original condition in accordance with the specifications of the city engineer. The permittee may be required to place a temporary surface over openings made in paved traffic lanes. Except when the pavement is to be replaced before the opening of the cut to traffic, the fill above the bottom of the paving slab shall be made with suitable material well tamped into place and this fill shall be topped with a minimum of at least one inch of bituminous mixture which is suitable to maintain the opening in good condition until permanent restoration can be made. The crown of the temporary restoration shall not exceed one inch above the adjoining pavement. The permittee shall exercise special care in making such temporary restorations and must maintain such restorations in safe traveling condition until such time as permanent restorations are made. The asphalt which is used shall be in accordance with the specifications of the city engineer. If in the judgement of the city engineer it is not expedient to replace the pavement over any cut or excavation made in the street upon completion of the work allowed under such permit, by reason of the looseness of the earth or weather conditions, the city engineer may direct the permittee to lay a temporary pavement of wood or other suitable material designated by him over such cut or excavation to remain until such time as the repair of the original pavement may be properly made.

Permanent restoration of the street shall be made by the permittee in strict accordance with the specifications prescribed by the city engineer to restore the street to its original and proper condition, or as near as may be. Surface restoration shall be of like material except where the city engineer allows non-pervious like materials.

Acceptance or approval of any excavation work by the city engineer shall not prevent the city from asserting a claim against the permittee and its surety under the surety bond required hereunder for incomplete or defective work if discovered within 24 months from the completion of the excavation work. The city engineer’s presence during the performance of any excavation work shall not relieve the permittee of its responsibilities hereunder. (Ord. 1787 § 2, 2016).

11.08.230 City’s right to restore surface.

If the permittee fails to restore the surface of the street to its original and proper condition upon the expiration of the time fixed by such permit or fails to prosecute the work in accordance with the requirements of this chapter or otherwise has failed to complete the excavation work covered by such permit, the city engineer, if he deems it advisable, shall have the right to do all work and things necessary to restore the street and to complete the excavation work. The permittee shall be liable for the actual cost thereof and 25 percent of such cost in addition for general overhead and administrative expenses. The city shall have a cause of action for all fees, expenses and amounts paid out and due it for such work and the city shall also enforce its rights under the permittee’s surety bond provided pursuant to this chapter.

It shall be the duty of the permittee to guarantee the site of the excavation work in the same condition it was in prior to the excavation for two years after restoring it to its original condition. (Ord. 1787 § 2, 2016).

11.08.240 Trenches in pipe laying.

Except by special permission from the city engineer, no trench shall be excavated more than 250 feet in advance of pipe laying nor left unfilled more than 500 feet where pipe has been laid. The length of the trench that may be opened at any one time shall not be greater than the length of pipe and the necessary accessories which are available at the site ready to be put in place. Trenches shall be braced and sheathed according to accepted safety standards for construction work. No timber bracing, lagging, sheathing or other lumber shall be left in any trench. (Ord. 1787 § 2, 2016).

11.08.250 Prompt completion of work.

The permittee shall prosecute with diligence and expedition all excavation work covered by the excavation permit and shall promptly complete such work and restore the street to its original condition, or as near as may be, as soon as practicable and, in any event, not later than the date specified in the excavation permit therefor. (Ord. 1787 § 2, 2016).

11.08.260 Urgent work.

If, in the city engineer’s judgment, traffic conditions, the safety or convenience of the traveling public or the public interest require that the excavation work be performed as emergency work, the city engineer shall have full power to order, at the time the permit is granted, that a crew of employees and adequate facilities be employed by the permittee 24 hours a day to the end that such excavation work may be completed as soon as possible. (Ord. 1787 § 2, 2016).

11.08.270 Emergency action.

In the event of any emergency in which a sewer, main, conduit or utility in or under any street breaks, bursts or otherwise is in such condition as to immediately endanger the property, life, health or safety of any individual, the person owning or controlling such sewer, main, conduit or utility, without first applying for and obtaining an excavation permit hereunder, shall immediately take proper emergency measures to cure or remedy the dangerous conditions for the protection of property, life, health and safety of individuals. However, such person owning or controlling such facility shall apply for a right-of-way excavation permit not later than the end of the next succeeding day during which the permit coordinator’s office is open for business, and shall not proceed with permanent repairs without first obtaining an excavation permit hereunder. (Ord. 1787 § 2, 2016).

11.08.280 Preservation of monuments.

The permittee shall not disturb any surface monuments or hubs found on the line of excavation work until ordered to do so by the city engineer. All street monuments, property corners, bench marks and other monuments disturbed during the progress of the work shall be replaced by a professional land surveyor and the cost of the same shall be paid by the permittee, and documentation provided to the city of said work. (Ord. 1787 § 2, 2016).

11.08.290 Inspections.

The city engineer shall make such inspections as are reasonably necessary in the enforcement of this chapter. When so made, the permittee shall pay for such inspections based on the city’s adopted fee schedule. The city engineer shall have the authority to promulgate and cause to be enforced such rules and regulations as may be reasonably necessary to enforce and carry out the intent of this chapter. (Ord. 1787 § 2, 2016).

11.08.300 Maintain drawings.

Users of sub-surface street space shall maintain accurate drawings, plans, and profiles showing the location and character of all underground structures including abandoned installations. Corrected maps shall be filed with the city engineer within 60 days after new installations, changes or replacements are made. Such surety bond as required in OHMC 11.08.060 shall be maintained until as-built drawings are submitted to the city. (Ord. 1787 § 2, 2016).

11.08.310 Chapter not applicable to city work.

The provisions of this chapter shall not be applicable to any excavation work under the direction of competent city authorities by employees of the city or by any contractor of the city performing work for and on behalf of the city necessitating openings or excavations in streets. (Ord. 1787 § 2, 2016).

11.08.320 Insurance.

A permittee shall procure and maintain for the duration of the permitted operation insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the permittee, their agents, representatives, employees or subcontractors.

The permittee shall provide a certificate of insurance evidencing:

Commercial general liability (CGL) insurance written on an occurrence basis with limits no less than $1,000,000 per occurrence and $2,000,000 general aggregate for personal injury, bodily injury and property damage, along with a $2,000,000 products-completed operations aggregate limit. Coverage shall include, but not be limited to: contractual; property damage; explosion, collapse and underground (XCU) if applicable; and stop gap (employer’s) liability.

Automobile liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage should be written with a minimum combined single limit for bodily injury and property damage of $1,000,000 per occurrence.

The city shall be named as an additional insured on the CGL insurance policy, including product/completed operations, as respect work performed by or on behalf of the permittee and a copy of endorsement ISO Additional Insured-State or Political Subdivisions-Permit CG 20 12 05 09 or substitute form providing equivalent or better coverage, naming the city as additional insured, shall be attached to the certificate of insurance. (Ord. 1787 § 2, 2016).

11.08.330 Liability of city.

This chapter shall not be construed as imposing upon the city or any official or employee any liability or responsibility for damages to any person injured by the performance of any right-of-way work for which a right-of-way permit is issued hereunder; nor shall the city or any official or employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized hereunder, the issuance of any permit or the approval of any right-of-way work. (Ord. 1787 § 2, 2016).

11.08.340 Penalties.

Any person violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in an amount not exceeding $1,000 or be imprisoned in the city jail for a period not exceeding 90 days or be both so fined and imprisoned. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder. (Ord. 1787 § 2, 2016).

11.08.350 Severability.

If any section, paragraph, subsection, clause or phrase of this chapter is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this chapter. The city council hereby declares that they would have passed the ordinance codified in this chapter and each section, paragraph, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, paragraphs, clauses or phrases be unconstitutional or invalid. (Ord. 1787 § 2, 2016).

11.08.360 Effective date.

The ordinance codified in this chapter shall take effect and be enforced one day after its passage, approval and publication. (Ord. 1787 § 2, 2016).