Work in Public Right of Way
There are serious responsibilities associated with working in the public right of way. Only licensed and bonded contractors can obtain permits for this type of work. Brigham City Code Title 24 outlines the requirements fully as follows:
24.03.020. Permit Required; Basis for Issuance.
Any person desiring to perform work of any kind, including but not limited to excavation and pole attachment, in a public way within the City, shall make application for a permit. The decision by the City to issue a permit shall include, among other factors determined by the City, the following:
A. The capacity of the public way to accommodate the facilities or structures proposed to be installed in the public way;
B. The capacity of the public way to accommodate multiple wire in addition to cables, conduits, pipes or other facilities or structures of other users of the public way, such as electrical power, telephone, gas, sewer, and water;
C. The damage or disruption, if any of public or private facilities, improvements, or landscaping previously existing the public way;
D. The public interest in minimizing the cost and disruption of construction from numerous excavations of the public way;
E. Compliance with Brigham City Public Works Standards and Technical Specifications.
24.03.030. Permit Application Requirements.
A. Application for a permit shall be filed with the Public Works Department on a form or forms to be furnished by the City. Applicants shall follow the requirements of Section 2 of the Brigham City Public Works Standard and Technical Specifications.
B. The Public Works Department may deny the issuance of permits to contractors, utility companies, or other permit applicants who have shown by past performance that in the opinion of the Public Works Department they will not consistently conform to the Engineering Regulations, Specifications, Design Standards, or the requirements of this chapter.
C. When necessary, in the judgment of the Public Works Department, to fully determine the relationship of the work proposed to existing or proposed facilities within the public ways, or to determine whether the work proposed complies with the engineering regulations, construction specifications and design standards, the Public Works Department may require the filing of engineering plans, specifications and sketches showing the proposed work in sufficient detail to permit determination of such relationship or compliance, or both, and the application shall be deemed suspended until such plans and sketches are filed and approved.
D. It shall be unlawful for any person to commence work upon any public way until the Public Works Department has approved the application and until a permit has been issued for such work, except as specifically approved to the contrary in this chapter or the
Brigham City Public Works Standard and Technical Specifications.
E. The disapproval or denial of an application by the Public Works Department may be appealed by the applicant to the City Council by filing of a written notice of appeal within ten days of the action of the Public Works Department. The City Council shall hear such appeal, if written request therefore be timely filed as soon as practical, and render its decision within two weeks following notice of such appeal.
F. In approving or disapproving work within any public way, or permits therefore, in the inspection of such work; in reviewing plans, sketches or specifications; and generally in the exercise of the authority conferred upon him/her by this chapter, the Public Works Department shall act in such manner as to preserve and protect the public way and the use thereof, but shall have no authority to govern the actions or inaction of permittees and applicants or other persons which have no relationship to the use, preservation or protection of the public way.
G. It shall be unlawful for a City, County, state, federal or other government employee to perform routine maintenance work, not involving excavations, without first having obtained a permit therefore.
24.03.040. Emergency Work.
Emergency work may proceed in compliance with Section 2.3 of the Brigham City Public Works Standards and Technical Specifications.
24.03.050. Permit Fees.
A. The City shall charge and the permittee shall pay upon issuance of the permit, a fee, which shall be established by resolution. In addition to the permit fee, the contractor shall provide a financial guarantee bond approved by Brigham City pursuant to Chapter 24.03.140 of this Title to cover the estimated cost of reviewing the project and issuing the permit, inspections of the project, deterioration of the public way or diminution of the useful life of the public way, and other costs to the City associated with the work to be done under the permit. All costs shall be assessed in a non-discriminatory manner and shall be estimated by resolution.
B. The Public Works Department may waive permit fees or penalties or portion thereof provided for in this chapter, pursuant to Section 2.2.C of the Brigham City Public Works Standards and Technical Specifications.
C. Additional charges to cover the reasonable cost and expenses of any required engineering review, inspection, and work site restoration associated with each undertaking may be charged by the City to each permittee, in addition to the permit fee.
24.03.060. Permit - Contents - Duration and Extensions.
A. Each permit application shall state the starting date and estimated completion date. Work shall be completed within five days from the starting date or as determined by the Public Works Department pursuant to Section 2.2.F of the Brigham City Public Works Standards and Technical Specifications. Such determination shall be based upon factors reasonably related to the work to be performed under the permit. Such factors may include, in addition to other factors related to the work to be performed, the following:
1. The scope of work to be performed under the permit;
2. Maintaining the safe and effective flow of pedestrian and vehicular traffic on the public way affected by the work;
3. Protecting the existing improvements to the public way impacted by the work;
4. The season of the year during which the work is to be performed as well as the current weather and its impact on public safety and the use of the public way by the public;
5. Use of the public way for extraordinary events anticipated by the City. The Public Works Department shall be notified by the permittee of commencement of the work no sooner than 48 hours prior to commencing work. Upon notification by the permittee, the Public Works Department shall notify the appropriate utility, department, or division of work to be commenced. The permit shall be valid for the time period specified in the permit.
B. If the work is not completed during such period, prior to the expiration of the permit, the permittee may apply to the Public Works Department for an additional permit or an extension, which may be granted by the Public Works Department for good cause shown.
C. The length of the extension requested by the permittee shall be subject to the approval of the Public Works Department. Extensions allowing work to be completed in the winter period shall be subject to provisions of Section 2.3.E of the Brigham City Public Works Standards and Technical Specifications.
24.03.070. Permit - No Transfer or Assignment.
Permits shall not be transferable or assignable, and work shall not be performed under a permit in any place other than that specified in the permit. Nothing herein contained shall prevent a permittee from subcontracting the work to be performed under a permit; provided, however, that the holder of the permit shall be and remain responsible for the performance of the work under the permit, and for all bonding, insurance and other requirements of this chapter and under said permit.
24.03.080. Compliance with Specifications, Standards, Traffic-Control Regulations; Site Permittee Identification.
A. The work performed in the public way shall conform to the requirements of the Brigham City Public Works Standards and Technical Specifications, engineering regulations, design standards, construction specifications and traffic control regulations of the City, copies of which shall be available from the Public Works Department, kept on file in the office of the City Recorder and be open to public inspection during office hours.
B. Where a job site is left unattended, before completion of the work, signage with minimum two inch high letters shall be attached to a barricade or otherwise posted at the site, indicating the permittee?s name, or company name, telephone number, and after hours telephone number.
C. All excavations shall be conducted in a manner resulting in a minimum amount of interference or interruption of street or pedestrian traffic. Inconvenience to residents and businesses fronting on the public way shall be minimized. Suitable, adequate and sufficient barricades and/or other structures will be available and used where necessary to prevent accidents involving property or persons. Barricades must be in place until all of the permittee?s equipment is removed from the site and the excavation has been backfilled and proper temporary gravel surface is in place, except where backfilling and resurfacing is to be done by the City; in which case the barricades, together with any necessary lights, flares or torches, must remain in place until the backfill work is actually commenced by the City. From sunset to sunrise, all barricades and excavations must be clearly outlined by adequate signal lights, torches, etc. The Police Department and Fire Department shall be notified at least four hours in advance of any planned excavation requiring street closure or traffic detour.
24.03.090. Other Highway Permits.
A. Holders of permits for work on highways owned or under the jurisdiction of other government entities, but located within the City limits, shall not be required to obtain permits from the City under the provisions of this chapter, unless the work extends beyond the back side of the curb, or beyond any other designated jurisdictional boundary. Any City permit shall not be construed to permit or allow work on a County road on a state highway within the City without an applicable County or state permit.
B. The Public Works Department, at its discretion, shall have the right and authority to regulate work under permits issued by other governmental entities with respect to hours and days of work, and measures required to be taken by the permittee of said governmental entity for the protection of traffic and safety of persons and property. Notwithstanding the foregoing, nothing in this chapter shall be construed to impose any duty, implied or express, on the City or its employees, officers, agents or assigns, relative to the protection of traffic and safety of persons or property, arising out of the issuance of any permit issued by government entities other than the City, or arising out of any work performed on any public way owned or within the jurisdiction of the City.
24.03.100. Relocation of Structures in Public Ways.
A. The Public Works Department may direct any person owning or maintaining facilities or structures in the public way to alter, modify or relocate such facilities or structures as the Public Works Department may require. Sewers, pipes, drains, tunnels, conduits, pipe driveways, vaults, trash receptacles and overhead and underground gas, electric, telephone, telecommunication and communication facilities shall specifically be subject to such directives. The person owning or maintaining the facilities or structures shall, at their own cost and expense and upon reasonable written notice by the City, promptly protect, or promptly alter or relocate such facilities or structures, or part thereof, as directed by the City. In the event that such person refuses or neglects to conform to the directive of the City, the City shall have the right to break through, remove, alter or relocate such part of the facilities or structures without liability to such person. Such person shall pay to the City all costs incurred by the City in connection with such work performed by the City, including also design, engineering, construction, materials, insurance, court costs and attorney?s fees.
B. Any directive by the Public Works Department shall be based upon the following:
1. The facility or structure was installed, erected or is being maintained contrary to law, or determined by the Public Works Department to be structurally unsound or defective;
2. The facility or structure constitutes a nuisance as defined under state statute or City Ordinance. (This section shall not, however, be deemed to diminish the vehicle impound authority of the Police Department);
3. The authority under which the facility or structure was installed has expired or has been revoked;
4. The facility or structure is not in conformity with public improvements consistent with the General Plan of the City for the area; or
5. The public way is about to be repaired or improved and such facilities or structures may pose a hindrance to construction.
6. The grades or lines of the public way are to be altered or changed.
C. Any person owning or maintaining facilities or structures in the public way who fails to alter, modify or relocate such facilities or structures upon notice to do so by the Public Works Department shall be guilty of a Class B misdemeanor. All costs of alteration, modification or relocation shall be borne by the person owning or maintaining the facilities or structures involved.
24.03.110. Impact of Excavation on Existing Improvements.
A. If any sidewalk or curb ramp is blocked by excavation work, a temporary sidewalk or curb ramp shall be constructed or provided. Said temporary improvement shall be safe for travel and convenient for users, and consistent with City standards for such.
B. Where excavations are made in paved areas, the surface shall be replaced pursuant to Section 16 of the Brigham City Public Works Standards and Technical Specifications.
C. 1. At any time a permittee disturbs the yard, residence or the real or personal property of a private property owner or the City, such permittee shall ensure that such property is returned, replaced and/or restored to a condition that is comparable to the condition that existed prior to the commencement of the work.
2. The costs associated with the disturbance and the return, replacement and/or restoration shall be borne by the permittee. Further, a permittee shall reimburse a property owner or the City, for any actual damage caused by the permittee, its subcontractor, or its independent contractor, in connection with the disturbance of such property. However, nothing in this subsection shall require the permittee to pay a subscriber or private property owner when that subscriber or private property owner and when the permittee exercises due care in the performance of that service, or when the subscriber or private property owner provided false information to the permittee on which the permittee relied to its detriment.
D. Examples of types of acts specifically included in this section are the following:
1. Removal of sod, lawn, shrubbery, flowers, trees, driveways, or fence, to install, trench, repair, replace, remove or locate, equipment, cable or other appurtenances of the permittee;
2. Installation or removal of equipment or other appurtenances of the permittee's system within a private property owner's property or residence which requires drilling, excavating, plastering, or the like on the part of the permittee;
3. Temporarily relocating or moving a piece of personal property or a fixture of a private property owner (such as a motor vehicle, fence, air conditioning, heating unit, or the like) in order to perform some sort of construction, maintenance or repair by the permittee; or
4. Permanently removing a permittee's equipment or other appurtenances due to the revocation, termination or non-renewal of the franchise (if applicable).
E. Existing drainage channels, such as gutters or ditches, shall be kept free of dirt or other debris so that natural flow will not be interrupted. W hen it is necessary to block or otherwise interrupt flow of the drainage channel, a method of rerouting the flow must be submitted for approval by the Public Works Department prior to the blockage of the channel.
F. The requirements imposed upon the permittee extend to any subcontractor or independent contractor that the permittee might employ to perform the tasks pursuant to the permit.
G. The requirements of this section shall not apply to the removal by a permittee, of a permanent structure placed by a property owner in a public way, unless such property owner has received prior written permission from the City granting the property owner the right to install a permanent structure on a public way.
24.03.120. Restoration of Public Property.
A. Restoration of the surface of any public way shall be subject to the provisions of Section 16 of the Brigham City Public Works Standards and Technical Specifications.
B. At its option, the permittee doing the actual excavation work may request that the City restore the surface to its original condition. The fee for such resurfacing shall be determined by the Public Works Department in accordance with its reasonable costs for such work and shall be charged to the person, firm, or corporation making the excavation. Payment for said work shall be received by the City prior to the release of the bond.
24.03.130. Insurance Requirements.
A. Before a permit is issued, the applicant shall furnish to the City evidence that such applicant has a comprehensive general liability and property damage policy that includes contractual liability coverage endorsed with the following limits and provisions:
1. A minimum of one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage and not less than one million dollars ($1,000,000) in the aggregate. The general aggregate limit shall apply separately to the permit, or the general aggregate limit shall be two times the required occurrence limit. The General Liability coverage. The City Attorney may increase or decrease minimum insurance limits, depending on the potential liability of any project.
2. All policies shall include the City, its employees, officers, officials, agents, volunteers and assigns, as insureds. Any reference to the "City" shall include the City, its employees, officers, officials, agents, volunteers and assigns.
3. The coverage shall be primary insurance as respects the City, its employees, officers, officials, agents, volunteers, and assigns. Any insurance or self-insurance maintained by the City, its employees, officers, officials, agents, volunteers, and assigns shall be in excess of the permittee's insurance and shall not contribute to or with it.
4. Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the City, its employees, officers, officials, agents, volunteers, and assigns.
5. Coverage shall state that the permittee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
6. Underwriters shall have no right of recovery or subrogation against the City, it being the intent of the parties that the insurance policy so affected shall protect both parties and be primary coverage for any and all losses covered by the described insurance.
7. The insurance companies issuing the policy or policies shall have no recourse against the City for payment of any premiums due or for any assessments under any form of any policy.
8. Each insurance policy shall be endorsed to state that the coverage shall not be suspended, voided, canceled, or reduced in coverage or in limits, except after thirty (30) days prior written notice by certified mail, return receipt requested sent to the City.
9. Each policy shall be endorsed to indemnify, save harmless and defend the City and its officers and employees against any claim or loss, damage or expense sustained on account of damages to persons or property occurring by reason of permit work done by the permittee, his/her subcontractor or agent, whether or not the work has been completed and whether or not the right-of-way has been opened to public travel.
10. Each policy shall be endorsed to indemnify, hold harmless and defend the City, and its officers and employees against any claim or loss, damage or expense sustained by any person occurring by reason of doing any work pursuant to the permit including, but not limited to falling objects or failure to maintain proper barricades and/or lights a required form the time work begins until the work is completed and right-of-way is opened for public use.
B. Insurance is to be placed with insurers with an AM Best rating of no less than an A carrier, with a rating of A7 or higher.
C. The permittee shall furnish the City with certificates of insurance and original endorsements affecting coverage required by the permit. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The City expressly reserves the right to require complete, certified copies of all required insurance policies at any time. Consequently, the permittee shall be prepared to provide such copies prior to the issuance of the permit.
D. If any of the required policies are, or at any time become, unsatisfactory to the City as to form or substance, or if a company issuing any such policy is, or at any time becomes, unsatisfactory to the City, the permittee shall promptly obtain a new policy, submit the same to the City for approval, and thereafter submit verification of coverage as required by the City. Upon failure to furnish, deliver and maintain such insurance as provided herein, the City may declare the permit to be in default and pursue any and all remedies the City may have at law or in equity, including those actions outlined in this chapter.
E. The permittee shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
F. Any deductibles or self-insured retentions shall be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its employees, officers, officials, agents, volunteers or assigns, or the permittee shall procure a bond, in a form acceptable to the City, guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
G. A property owner performing work adjacent to his/her residence may submit proof of a homeowner?s insurance policy that demonstrably provides coverage for work in the public way in lieu of the insurance requirements of this section.
H. A provider may be relieved of the obligation of submitting certificates of insurance under the following circumstances:
1. If such company shall submit satisfactory evidence in advance that:
a) It is insured in the amounts set forth in this chapter, or has complied with State requirements to become self insured. Public utilities may submit annually evidence of insurance coverage in lieu of individual submissions for each permit; and
b) Said coverage provides to the City the same scope of coverage that would otherwise be provided by a separate policy as required by this chapter; or
c) The work to be performed under the permit issued to the applicant is to be performed by the City, in which case insurance requirements shall be negotiated between the City and the applicant by separate agreement.
24.03.140. Bond - When Required, Conditions, Warranty.
A. Except as noted in this chapter, each applicant, before being issued a permit, shall provide the City with an acceptable corporate surety bond in the amount to be established by resolution to guarantee faithful performance of the work authorized by a permit granted pursuant to this chapter. The amount of the bond required may be increased or decreased at the discretion of the Public Works Department whenever it appears that the amount and cost of the work to be performed, and not satisfactorily completed, may vary from the amount of bond otherwise required under this chapter. The form of the bond and the entity issuing the bond shall be subject to the approval of the City Attorney.
B. Public utilities franchised by the City shall not be required to file a corporate surety bond if such requirement is expressly waived in the franchise documents.
C. The bond required by this section shall be conditioned as follows:
1. That the permittee shall fully comply with the requirements of the City ordinances and regulations, specifications and standards promulgated by the City relative to work in the public way, and respond to the City in damages for failure to conform therewith;
2. That after work is commenced, the permittee shall proceed with diligence and expedition and shall promptly complete such work and restore the public way to construction specifications, so as not to obstruct the public place or travel thereon more than is reasonably necessary;
3. That the permittee shall guarantee the materials and workmanship pursuant to Section 2.7.A of the Brigham City Public Works Standards and Technical Specifications.
24.03.150. Hold Harmless Agreement; Limitations on City Liability.
A. The permittee agrees to save the City, its officers, employees and agents harmless from any and all costs, damages and liabilities which may accrue or be claimed to accrue by reason of any work performed under the permit. The issuance and acceptance of any permit under this chapter shall constitute such an agreement by the permittee to this section.
B. This chapter shall neither be construed as imposing upon the City, its officers, employees and agents, any liability or responsibility for damages to any person injured by or by reason of the performance of any work within the public way, or under a permit issued pursuant to this chapter; nor shall the City, its officers, officials, employees, agents, volunteers or assigns thereof be deemed to have assumed any such liability or responsibility by reason of inspection authorized hereunder, the issuance of any permit, or the approval of any work.
24.03.160. Work without Permit - Penalty.
A. A stop order may be issued by the Public Works Department directed to any person or persons doing or causing any work to be done in the public way without a permit.
B. Any person found to be doing work in the public way without having obtained a permit, as provided in this chapter, shall be required to pay a permit fee equal to two times the normal permit fee. For replacement work, where a fee is not normally charged, the normal permit fee for new construction shall apply.
24.03.170. Failure to Comply; Default in Performance.
A. Any permit may be revoked or suspended and a stop order issued by the Public Works Department, after notice to the permittee for:
1. Violation of any condition of the permit, the bond, or of any provision of this chapter;
2. Violation of any provision of any other ordinance of the City or law relating to the work; or
3. Existence of any condition or the doing of any act which does constitute, may constitute, or cause a condition endangering life or property.
B. A suspension or revocation by the Public Works Department, and a stop order, shall take effect immediately upon entry thereof by the Public Works Department and notice to the person performing the work in the public way. Notice to the person performing the work shall be accomplished when the Public Works Department has posted a stop work order at the location of the work. Upon posting of a stop work order, written notice of the stop work order shall be mailed, return receipt requested, to the address indicated by the permittee on the permit.
C. Whenever the Public Works Department finds that a default has occurred in the performance of any term or condition of the permit, written notice thereof may be given to the principal and to the surety on the bond, if there is a surety bond. Such notice shall state the work to be done, the estimated cost thereof, and the period of time deemed by the Public Works Department to be reasonably necessary for the completion of the work.
D. In the event that the surety (or principal), within a reasonable time following the giving of such notice (taking into consideration the exigencies of the situation, the nature of the work, the requirements of public safety and for the protection of persons and property), fails either to commence and cause the required work to be performed with due diligence, or to indemnify the City for the cost of doing the work, as set forth in the notice, the City may perform the work, at the discretion of the Public Works Department, with City forces or contract forces or both, and suit may be commenced by the City Attorney against the contractor and bonding company and such other persons as may be liable, to recover the entire amount due to the City, including attorney fees and a 15% overhead charge, on account thereof. In the event that cash has been deposited, the cost of performing the work may be charged against the amount deposited, and suit brought for the balance due, if any.
24.03.180. Failure to Conform to Design Standards - Penalty.
A. For failure to conform to the design standards and regulations, the Public Works Department may:
1. Suspend or revoke the permit;
2. Issue a stop order;
3. Order removal and replacement of faulty work;
4. Require an extended warranty period; and/or
5. Negotiate a cash settlement to be applied toward future maintenance costs.
24.03.190. Appeal of Suspension, Revocation, or Stop Order.
Any suspension, revocation or stop order by the Public Works Department may be appealed by the permittee to the Board of Appeals by filing a written notice of appeal within ten days of the action of the Public Works Department. The Board of Appeals shall hear such appeal, if written request therefore be timely filed, as soon as practical, and render its decision within a reasonable time following filing of notice of appeal.
24.03.200. Tampering with Traffic Barricades.
It shall be unlawful for any person to maliciously or wantonly or without authorization and legal cause, extinguish, remove or diminish any light illuminating any barricade or excavation, or to tear down, remove or in any manner alter any rail, fence or barricade protecting any excavation or other construction site.
24.03.210 Conflict with Governing Provisions.
Should there be a conflict between the provisions of this chapter and the provisions of any other ordinance, agreement, franchise, or other document governing the excavation of a public way, the more restrictive provisions of the aforesaid documents shall apply.
24.03.220. Violation - Penalty.
Unless otherwise specified in this chapter, a violation of any provision of this chapter, or failure to comply with an order of suspension, revocation or stop work, by any person, whether a permittee or a subcontractor to a permittee, shall be a Class B misdemeanor. Each day the violation exists shall be a separate offense. No criminal conviction shall excuse the person from otherwise complying with the provisions of this chapter.