Chapter 12.44 PUBLIC RIGHT-OF-WAY EXCAVATION

No person, firm, or corporation shall trench, dig, excavate or penetrate any city right-of-way, roadway, street, alleyway, sidewalk, curb or gutter by creating a ditch, excavation or other subgrade penetration for water, sewer, storm sewer, natural gas, telephone, cable TV, electrical power, or other utility, or for any other purpose, without first obtaining an excavation right-of-way permit issued by the city. (Ord. 1334 § 1, 2022).

12.44.020 Permit application.

All applicants for an excavation permit shall file a written application on forms furnished by the city public works director, or authorized designee. (Ord. 1334 § 1, 2022).

12.44.030 Application – Contents – Fees.

Any person or entity desiring to apply for permit under this chapter shall do so by filing a written application with the city public works director. Such application shall be signed by the person or entity representative who intends to conduct the excavation. The applicant must be a licensed and bonded contractor of the state of Washington. The application shall be in such form as the city public works director may reasonably require and shall include at a minimum, the following information:

A. All applications shall be accompanied by an excavation plan showing the extent of the proposed excavation work. The excavation plan shall indicate all locations and dimensions of the proposed excavation and any other information as may be required by the city public works director.

B. A nonrefundable application fee in an amount equal to the fee required by resolution of the city council adopted pursuant to this chapter. Said application fee shall be in addition to all other fees for permits or charges relative to any proposed construction work. The city fee resolution and any amendments thereto may establish different fees for some excavations depending upon whether the excavated surface is improved (paved) and the age of the surface involved in the excavation. (Ord. 1334 § 1, 2022).

12.44.040 Relocation of excavation and excavation approval.

A. The city public works director may require the applicant to relocate the proposed excavation to a place designated as a more appropriate place by the city public works director.

B. The city public works director may require the applicant to perform the excavation and protect the material placed in the excavation in whatever reasonable manner required by the city public works director in order to protect the material placed in the excavation from possible damage by future excavation. (Ord. 1334 § 1, 2022).

12.44.050 Permit issuance.

The city public works director shall review all applications for street excavation permits. The city public works director shall approve said applications when all information required therein is fully completed to the satisfaction of the city public works director and when all other requirements of this chapter are met. (Ord. 1334 § 1, 2022).

12.44.060 Excavation of newly constructed or resurfaced streets.

A. Excavation in City Streets Within Five Years of Street Paving Prohibited. No permit shall be issued for any openings, cuts or excavations in any city street for a period of five years following the date such street was paved or repaved, except as provided in this section.

B. Notification of Intent to Pave.

1. Whenever paving or repaving of any city street is authorized, the city public works director shall promptly mail written notice thereof to the following:

a. Each person owning any sewer, main, conduit or other utility in or under said street or any real property, whether improved or unimproved, abutting said street;

b. The owner of record of real property abutting said street;

c. Any applicable state agencies;

d. Holders of franchise agreements with the city allowing utilities in any public right-of-way within the city;

e. City departments that may need to perform work within the affected street; and

f. All other persons who register with the city clerk to receive such notice.

2. The notice shall state that no excavation permit shall be issued for openings, cuts or excavations in said street for a period of five years after the date of completion of paving or repaving. The notice shall also state that applications for permits to excavate prior to such paving or repaving shall be submitted promptly in order that the work covered by the permit may be completed by the deadline established for such work by the public works director.

3. Notice shall be provided to those parties specified in subsection (B)(1) of this section upon:

a. Council adoption of the annual six-year transportation improvement program (TIP) for paving or repaving projects anticipated to be initiated during the first year of that TIP. A second notice shall be provided to those parties upon city execution of a design contract for a specific paving or repaving project under the first year of that TIP.

b. City approval of the development permit or permits necessary to undertake all other paving or repaving projects not set forth under the first year of a TIP.

4. In addition to any notice required under this subsection (B), following adoption of the annual transportation improvement program by the city council, the public works director shall promptly provide notice thereof to all city franchise holders.

C. Deadline for Work. All utility work that must be accomplished prior to a paving or repaving project shall be completed by the date of city authorization of the construction contract for the project, or, in the case of noncity projects, upon city issuance of a right-of-way permit for the paving or repaving. The public works director may set a later deadline if the director determines that allowing more time will not interfere with the planned work.

D. Exceptions. No permit for excavation shall be issued within the five-year period after expiration of the deadline, unless the public works director determines that:

1. Denying the permit would work an undue hardship on the person applying for the permit and the need for the excavation could not have been reasonably anticipated before expiration of the deadline;

2. An emergency exists that requires such an excavation to protect the public health, safety or welfare;

3. The excavation is required to provide new services to buildings or residences constructed subsequent to the completion or resurfacing of the public right-of-way that were not reasonably anticipated to be constructed and in need of the services at the time of the completion or resurfacing of the public right-of-way involved;

4. The applicant can install the utility under the street in a manner that shall not disturb the integrity or surface of the street; or

5. Work for which the city’s denial of a permit would violate state, local, or federal law.

E. Fees for Street Cuts within the Five-Year Period. Any street use permit issued pursuant to subsection (D) of this section shall require an additional fee as follows:

1. Two thousand five hundred dollars if the cut is made within one year after the street has been overlaid;

2. Two thousand dollars if the cut is made within two years after the street has been overlaid;

3. One thousand five hundred dollars if the cut is made within three years after the street has been overlaid;

4. One thousand dollars if the cut is made within four years after the street has been overlaid; and

5. Seven hundred fifty dollars if the cut is made within five years after the street has been overlaid.

F. Excavation by City Departments. Every city department or official responsible for any work that may require any opening, cut or excavation in a street is directed to take appropriate measures to perform such excavation work within the deadline set by the public works director.

G. Appeals. In the event that the public works director denies an application, the applicant’s remedy shall be to appeal to the city hearing examiner. The applicant shall file a written notice of appeal with the city clerk within 15 days from the date of receipt of the denial of the excavation permit application. The appeal notice shall state the specific reasons for objection to the decision of the public works director. The hearing examiner shall set a date to hear the applicant’s appeal and conduct a hearing on the applicant’s appeal within 45 days of the date the city clerk received the notice of appeal. (Ord. 1334 § 1, 2022).

12.44.070 Term of permit.

All excavation permits issued pursuant to the provisions of this chapter shall expire on a date certain, which date shall be established by the city public works director as the date on which the excavation is to be completed. This expiration date shall be clearly noted on the permit. (Ord. 1334 § 1, 2022).

12.44.080 Performance bond required.

Before an excavation permit may be issued under the provisions of this chapter, the applicant shall deposit with the city public works director a surety bond in an amount determined by the city public works director to be sufficient to ensure completion of the work and fulfillment of the warranty provided for herein and in a form approved by the city attorney. Said bond shall guarantee completion of all excavation and street restoration work required by this chapter and by the conditions of the permit within the time limits set on the permit by the city public works director. Said bond shall further guarantee that all excavation and restoration work shall be free from settling and defects in workmanship or materials for a period of five years after the date said work is completed and accepted by the city. The city public works director shall have authority to waive the requirements of this section if in his or her sole judgment the facts and circumstances warrant a waiver. (Ord. 1334 § 1, 2022).

12.44.090 Insurance required.

Before an excavation permit may be issued, the applicant shall secure comprehensive general liability insurance for personal injury and property damage in the amount of $300,000 which shall remain in full force and effect throughout the duration of the permit. The policy of insurance shall name the city as an additional named insured and shall include a provision prohibiting cancellation of said policy except upon 30 days’ prior written notice to the city. Proof that the applicant has such insurance must be furnished to the city public works director prior to issuance of the permit. The city public works director shall have authority to waive the requirements of this section if in his or her sole judgment the facts and circumstances warrant a waiver. (Ord. 1334 § 1, 2022).

12.44.100 Non-excavation period.

Due to asphalt plant shutdown and the unavailability of appropriate packing materials and the likelihood of ground freezing and associated settling problems, no person, firm, or corporation shall trench, dig, excavate, or penetrate any city right-of-way, street, roadway, alleyway, sidewalk, curb, or gutter by creating a ditch, excavation, or other subgrade penetration for water, sewer, storm sewer, natural gas, telephone, cable TV, or electric power or other utility, or for any other purpose, from October 31st until March 31st of the following year. (Ord. 1334 § 1, 2022).

12.44.110 Routing of traffic.

The permittee shall take such measures as are deemed necessary by the city public works director to assure that during the performance of the excavation work, pre-excavation traffic conditions and flow are maintained as nearly as practicable. No street may be closed by the permittee without the express permission of the city public works director. The permittee shall route and control traffic, including its own vehicles, as set forth in a traffic control plan prepared by the permittee and approved by the city street superintendent. Traffic cones, signs, and/or people directing traffic as deemed necessary by the city public works director shall be furnished by the permittee at the permittee’s expense. (Ord. 1334 § 1, 2022).

12.44.120 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 firefighting equipment shall be kept free from obstructions at all times. (Ord. 1334 § 1, 2022).

12.44.130 Protection of traffic.

The permittee shall erect and maintain suitable barriers to confine earth from trenches or other excavations in order to encroach upon the city street as little as possible. The permittee shall construct and maintain crossings over excavations and across streets under restoration or improvement which, in the judgment of the city public works director, are adequate and safe to accommodate vehicular and pedestrian traffic at all times. (Ord. 1334 § 1, 2022).

12.44.140 Protection of adjoining property – Access.

The permittee shall at all times and at the permittee’s expense, preserve and protect from obstruction and damage any adjoining property by providing proper foundations and taking other measures which, in the judgment of the city public works director, are suitable for such purposes. The permittee shall at all times maintain adequate access to all properties adjoining the excavation or work site. (Ord. 1334 § 1, 2022).

12.44.150 Protective measures – Fences, barriers.

The permittee shall erect at the permittee’s expense such fence, railing, or barriers about the site of the excavation or street restoration work as, in the judgment of the city public works director, may be necessary to prevent danger to vehicles or pedestrians using the city streets or sidewalks, and such protective barriers shall be maintained until the city public works director otherwise directs. Such protective barriers shall be equipped with adequate lighting to provide for both daytime and nighttime visibility. (Ord. 1334 § 1, 2022).

12.44.160 Pavement cut requirement.

Before commencing excavation in a paved street, every permittee doing so shall first cut the pavement around the circumference or parallel to the excavated area with a saw, cutting wheel or other method approved by the city public works director. (Ord. 1334 § 1, 2022).

12.44.170 Excavated material.

All excavated material which is piled adjacent to the excavation shall be piled and maintained in such manner so as not to endanger those working in the excavation or pedestrians or users of the streets. When the confines of the area being excavated are too small to permit the piling of excavated material beside the excavation, the city public works director shall have the authority to require the permittee to haul the excavated material to a storage site and then rehaul it to the excavation at the time of backfilling. It is the responsibility of the permittee to secure the necessary permission and make all necessary arrangement for any required storage and disposal of excavated material. (Ord. 1334 § 1, 2022).

12.44.180 Trench construction and backfill.

A. Where the pavement must be removed, it first shall be cut in vertical (or undercut) continuous straight lines.

B. Trenches shall be cut to have vertical faces, where soil and depth conditions permit, with a maximum width of outside diameter of pipe plus two feet. Shoring shall comply with the Washington State Department of Labor and Industries Safety Code.

C. The pipe or carrier shall be installed and the trench backfilled in a manner assuring no deformation of the pipe likely to cause leakage, and restoration of the structural integrity of the roadway structure. Specific trench backfill requirements regarding materials and methods shall be as approved by the city public works director.

D. Compaction testing may be required by the city public works director and shall be performed to the satisfaction of the city public works director at the permittee’s expense. (Ord. 1334 § 1, 2022).

12.44.190 Street restoration.

A. Permanent restoration of the street shall be made by the permittee in strict accordance with the standards and specifications of the city as approved by the city public works director. Street restoration may include complete overlays of entire portions of city streets if deemed necessary in the sole judgment of the city public works director.

B. The permittee shall guarantee and maintain the site of the excavation work to city standards and specifications for a period of five years following the completion of the restoration and acceptance by the city. Acceptance or approval of any excavation work or street restoration by the city public works director shall not prevent the city from asserting a claim against the permittee and his or its surety under the surety bond required by this chapter for incomplete or defective work if such incompleteness or defective work is discovered within five years from completion of the excavation work. The presence of the city public works director during the performance of any excavation work shall not relieve the permittee of its responsibilities under this chapter.

C. If the permittee has failed to complete the excavation work and restore the surface of the street as required herein and to obtain the approval of the city public works director within the time fixed by the permit, or fails to perform any work or protective measure required by this chapter, the city public works director shall have the authority to have all such uncompleted work or restoration completed. The permittee shall be liable to the city for any costs incurred by the city in completing such work. (Ord. 1334 § 1, 2022).

12.44.200 Cleanup.

As the excavation work progresses, all streets and private property shall be thoroughly cleaned of all rubbish, excess earth, rock and other debris resulting from such excavation. All cleanup 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 public works director. (Ord. 1334 § 1, 2022).

12.44.210 Inspections.

The city public works director or designee may make such inspections as deemed reasonably necessary by the city public works director from time to time. (Ord. 1334 § 1, 2022).

12.44.220 As-built drawings, plans and profiles.

Upon completion of the excavation work, the city public works director may request the permittee to submit to the city accurate drawings, plans and profiles showing the location and character of all underground structures installed during excavation work. (Ord. 1334 § 1, 2022).

12.44.230 Provisions not applicable to city work.

The provisions of this chapter shall not be applicable to any excavation work or street restoration performed by the city or by any contractor retained by the city to perform such work or restoration on the city’s behalf. (Ord. 1334 § 1, 2022).

12.44.240 Liability of city.

This chapter shall not be construed as imposing upon the city or any official or employee of the city any liability or responsibility for damages to any person injured by the performance of any excavation work for which an excavation permit is issued under this chapter; nor shall the city or any official or employee thereof be deemed to have assumed such liability or responsibility by reason of inspections authorized under this chapter, the issuance of any permit or the approval of any excavation work. (Ord. 1334 § 1, 2022).

12.44.250 Stop work order.

The city public works director or his or her designee may issue a written stop work order to any person violating any provision of this chapter or performing any work in violation of any permit issued pursuant to this chapter. The written stop work order may be served by delivering the same on any person engaged in the work and/or on the permittee. All such persons shall immediately stop work and/or cause such work to be stopped until further direction by the city public works director or his or her designee to proceed. Such stop work order shall constitute immediate revocation of the permit issued under this chapter, subject to reinstatement of the permit by the city public works director upon the taking of appropriate remedial action. (Ord. 1334 § 1, 2022).

12.44.260 Penalties for violation.

Any person, firm or corporation violating the provisions of this chapter shall be deemed guilty of a civil infraction and shall be subject to a civil penalty, up to and including a C-1 penalty, in accordance with SLMC 1.10.030. Each day such violation is committed or permitted to continue shall constitute a separate offense. (Ord. 1334 § 1, 2022).